Life Story Rights / Photo Credit: No Film School - Adrijana Lazarevic - Shutter Stock
WHAT IS A LIFE RIGHTS AGREEMENT?
(In the Entertainment industry.)
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What is a Life Rights Agreement?
Life Rights
Similar to a rights purchase agreement is a life rights
purchase agreement. If a producer intends to produce a biography on a person’s
life, they may purchase that person’s cooperation with a so-called life rights
agreement. These rights can also be purchased from someone who knows the
subject well. This is most commonly used when the subject is deceased. In that
case, the life rights can be purchased from the subject’s heirs or other immediate
family who inherited these rights upon the subject’s death. While story rights
of certain deceased individuals may be considered “public domain,” particularly
if the individuals did not exploit their right of publicity during their
lifetime, there are dangers in producing a “bio pic” without an actual person’s
verified story. Included in these dangers is being sued for slander by the
deceased individual’s estate and/or being prosecuted for criminal slander
against a deceased individual in certain jurisdictions. Clearance of these
issues can be critical in obtaining errors & omissions (“E&O”)
insurance at the time of distribution.
Purchasing Life Story Rights
By: Mark Litwak
Before you decide to purchase the rights to a person’s
life story, it is worth considering what you are buying. When you buy the
rights to portray someone in film or television, you are buying a bundle of
rights. These rights include protection from suits based on defamation,
invasion of privacy and the right to publicity. You may also be buying the
cooperation of the subject and his family or heirs. Perhaps you want access to
diaries and letters that are not otherwise available to you.
If the subject of the life story is deceased, much of the
rationale for buying these rights disappears, since defamation and invasion of
privacy actions protect personal rights that do not descend to the estate. In
other words, people can spread lies and falsehoods about the dead, reveal their
innermost secrets, and their heirs cannot sue for defamation or invasion of
privacy on behalf of the deceased person. A writer could publish a revisionist
history of George Washington, portraying our first President as a child
molester and a thief, and his heirs would have no remedy. So when a subject is
deceased, a producer has less need for a depiction release. The right of
publicity may or may not descend to one’s heirs, depending on state law.
It is also important to consider whether the subject of
your film is a private individual or a public official or public figure. Public
officials and figures have opened more of their lives to public scrutiny, and
consequently more of their lives can be portrayed without invading their
privacy. Moreover, public officials and figures must meet a much higher burden
of proof in order to establish defamation or invasion of privacy. They must
prove that a defamer intentionally spread a falsehood or acted with reckless
disregard of the truth.
One should also consider the possibility of fictionalizing
a true story. If you change the names of the individuals involved, change the
location and make other alterations so that the real-life people are not
recognizable to the public, you could avoid the necessity of a depiction
release.
Keep in mind, however, that the story’s appeal may be
predicated on the fact that it is a true story. In such a case,
fictionalization is not a good alternative. Suppose you wanted to do the
Jessica McClure story, describing how a Texas community rallied to the rescue
of a young girl who fell down a well-hole. Here you would want to bill the
movie as The Jessica McClure Story. That is why viewers would tune in.
Terms of the Agreement
In negotiating for life-story rights, there are a number
of important issues that need to be resolved. At the outset, the parties must
determine the extent of the rights granted. Does the grant include remakes,
sequels, television series, merchandising, novelization, live-stage rights and
radio rights? Are the rights worldwide? Buyers will usually want as broad a
grant as possible. The seller may insist on retaining certain rights.
The buyer must also consider other releases that may be
needed. What about the subject’s spouse, children, friends and relatives? Will
these people consent to be portrayed? Will the subject ask his friends and
relatives to cooperate? Can these secondary characters be fictionalized? If the
producer is planning an ensemble piece about a basketball team, it makes no
sense to sign up players one by one, hoping to get them all. A smart producer
will gather the team in a room and purchase all of the rights or none.
Another issue is whether the rights can be assigned to a
studio or production company. If the buyer is a producer, she will often need
to assign such rights to a studio or network later as part of a
financing/distribution agreement.
The purchase of life-story rights can be structured as
either an option/purchase deal or as an outright sale, often with a reversion
clause. A reversion clause provides that in the event the rights are not
exploited within a certain number of years (i.e., the movie is not made), then
all rights would revert to the subject. This provision protects the subject if
he has sold rights to his life story to a producer who never uses them, and sometime
later another producer is interested in making such a film.
The agreement should recite the consideration exchanged.
Consideration is a legal term of art. Consideration is that which is given in
exchange for a benefit received. It is a necessary element for the existence of
a contract. A contract is only binding with consideration. It is what
distinguishes a contract from a gift, which may be revocable.
Consideration is usually money, but it can be anything of
value. As a general principle, courts do not review the adequacy of
consideration. In other words, should you be foolish enough to agree to sell
your brand-new car, worth $15,000, for only $5,000, don’t expect a judge to
rescue you from the results of your poor judgment. Unless there was some sort
of fraud or duress involved, the contract will be enforced, although it may be
unfair to one party.
To ensure that a contract is binding, agreements often
recite: “For ten dollars and other valuable consideration.” This clause
establishes that there has been an exchange of value, even if it is nominal
consideration. Make sure the consideration is actually paid. It is wise to pay
by check so that you will have the cancelled check as proof of payment.
Mutually exchanged promises can be adequate consideration.
For example, a producer’s efforts to develop a project could be deemed adequate
consideration for an option. But to be sure their contracts are enforceable;
producers may want to pay some money for the option. There are some exceptional
circumstances when courts will throw out a contract if the terms of the
contract are unconscionable.
There are other ways to compensate a subject of a life
story besides a flat fixed fee. You could give the subject points (percentage
of net profits), consulting fees and/or bonuses to be paid when the film is
exploited in ancillary markets.
An important part of any depiction agreement is the
“Warranties and Representations” clause. A warranty is a promise. The buyer
will want the seller to promise never to sue for an invasion of his rights of
publicity and privacy, or for defamation, even if the buyer takes some creative
liberties in telling the story. The warranties must cover all conceivable
situations. No one wants to buy a lawsuit.
There will also be a provision that gives the buyer the
right to embellish, fictionalize, dramatize and adapt the life story in any way
he chooses. This is a frequent sticking point in negotiations. The subject is
delighted to be asked to have her story told on the silver screen, but when you
present her with a depiction release, she becomes concerned. She asks, “This document
says you can change my story any way you like and I can’t sue for defamation.
How do I know you won’t portray me as a monster?”
A producer may reply: “Trust me, trust me.” Sometimes that
will work. But the subject may respond: “I have no intention of trusting any of
you charming Hollywood types. I want script approval. Write your script, and if
I like it, I’ll sign the release.”
Can a producer give a subject script approval? No sane
producer would. No producer is going to expend a lot of time and money
developing a script only to find that the subject has changed her mind or is
unreasonably withholding approval.
If the subject refuses to give the producer carte blanche,
are any compromises possible? Yes. The subject could have approval over the
treatment or selection of the writer. Perhaps the subject will figure that if
she approves only a classy writer, her portrayal will be acceptable.
Alternatively, the producer could offer to make the
subject a creative or technical consultant to the production. “You’ll be right
there by the director’s side,” says the producer, “giving him advice and
suggestions to ensure that everything is authentic.” The producer may not
mention that the director doesn’t want the subject on the set and is not
required to accept her suggestions.
Another possible compromise could limit the subject matter
and period portrayed. Perhaps the subject is primarily concerned that an
embarrassing incident in her life not be re-enacted in Panavision. The release
could say that certain incidents (e.g., a divorce) are not included in the
release. Or the release could cover limited periods of the subject’s life
(e.g., only those incidents that occurred before 1947).
Finally, the subject might have the right to determine
screen notice. She could decide if the film will be billed as a true story or a
dramatized account. Alternatively, she could decide whether real names are used
for the characters.
References
& Credits: Google, Wikipedia, Wikihow, WikiBooks, Pinterest, IMDB, Linked
In, Indie Wire, Film Making Stuff, Hiive, History Channel, Film Daily, New York
Film Academy, The Balance, Careers Hub, The Numbers, Film Maker, Film Site, TV
Guide Magazine, Blurb, Media Match, Quora, Creative Skill Set, Chron, Investopedia,
Variety, No Film School, WGA, BBC, Daily Variety, The Film Agency, Best Sample
Resume, How Stuff Works, Studio Binder, Career Trend, Producer's Code of
Credits, Truity, Production Hub, Producers Guild of America, Film Connection, Variety,
Wolf Crow, Get In Media, Production Beast, Sony Pictures, Warner Bros, UCAS, Frankenbite,
Realty 101, Careers Hub, Screen Play Scripts, Elements of Cinema, Script
Doctor, ASCAP, Film Independent, Any Possibility, CTLsites, NYFA, Future Learn,
VOM Productions, Mad Studios, Rewire, DP School, Film Reference, DGA, IATSE, ASC,
MPAA, HFPA, MPSE, CDG, AFI, Box Office Mojo, Rotten Tomatoes, Indie Film
Hustle, The Numbers, Netflix, Vimeo, Instagram, Pinterest, Metacritic, Hulu, Reddit,
NATO, Mental Floss, Slate, Locations Hub, Film Industry Statistics, Guinness World
Records, The Audiopedia, Imagination for People, Literary Devices, Start Up
Film Maker, On Post Modernism, The Guerrilla Rep Media, Indie Film Distribution,
Mark Litwak
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Life Story Rights / Photo Credit: No Film School - Adrijana Lazarevic -
Shutter Stock
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