How to Buy a Life Story

INTRODUCTION

An individual with an idea for a film or television program will want to reduce the likelihood that his or her idea will be stolen, and that legal concerns or uncertainties will make it difficult to obtain a distribution deal. Obtaining life story rights, audiovisual rights to a literary work, or other exclusive rights can reduce or eliminate these concerns.

PROTECTION

A well-established filmmaker can generally discuss their ideas with actors, studios and potential distributors with little fear of the idea being stolen. This is because it is likely that people with whom the established filmmaker discusses the deal would not want to cross the filmmaker and face the consequences of making an enemy of someone with connections in the business. It is more likely they would prefer to work with that proven filmmaker, if only to avoid competing with someone else who might complete production first.

This is not the case with a new filmmaker. Ideas of new filmmakers are frequently stolen. Of course, a new filmmaker can have a non-disclosure agreement prepared that production companies and minor actors would probably sign. However, the film studios and networks are unwilling to sign non-disclosures. In fact, they normally require the filmmaker to sign a submission release before submitting the idea. The submission release will usually provide that unless the studio or network violates the filmmaker's copyrights, the filmmaker has no claim against the studio or network.

So the filmmaker should try to develop assets that are connected with the film or series that the studio would want. Assets could include an exceptionally well written script, audiovisual rights in a novel or other book, or special skills. For example, if the film involves underwater photography, then talent as an underwater photographer would be an asset. If the film involves esoteric knowledge, an important asset might be an exclusive agreement with a professor in the field. If the film involves a person's life, exclusive rights to personal interviews, documentation and old footage would be helpful. The point is to make it so that the studio wants something they can only get if they work with the filmmaker. Exclusive rights provide an excellent way for a filmmaker to protect his or her idea.

DISTRIBUTION

A distributor does not want to be hampered by lawsuits. Lawsuits relating to a film or program may be brought on a variety of grounds.

Violation of privacy and publicity rights of a person who is a subject of the film or program include wrongful appropriation of identity, likeness, image or name. With minor differences, this form of the right of privacy also constitutes the right of publicity.

Other grounds include wrongful intrusion (Peeping Tom scenario); wrongful disclosure of embarrassing private facts; casting the subject in a false light; defamation, libel or slander of the subject; and copyright infringement of an underlying work such as a book.

Except for copyrights, each of these rights are governed by state law, so they do vary from state to state. However, in those states with statutes that concern privacy and publicity rights, the statutes tend to be similar. The principles are generally similar in states where the rights are based on case law, as well as those where the rights are set forth in statutes. But because of the differences that do exist, the specific laws of each state concerned must be considered.

State laws are subject to the first amendment, which curbs the impact of privacy and publicity rights, and laws against defamation.

The areas of privacy law most likely to be violated by filmmakers involve the wrongful appropriation of an aspect of an individual’s identity, such as a person’s name or image, and the disclosure of embarrassing private facts, so as to outrage or cause suffering, shame, or humiliation to a person of ordinary sensibilities.

False light invasion of privacy is the same as defamation, except that the false statement need not be disparaging. For instance, if you say that the subject went to Harvard when they actually went to Yale, you have not defamed them, but you may have violated their right of privacy under the false light principle.

The subject of a story based on historical events often creates writings, paintings, or photographs which would be useful in a film. However, using these materials without authorization often constitutes copyright infringement.

Many films are based on books and screenplays. Unless they are in the public domain, using them as the basis of a film without authorization constitutes copyright infringement.

LIFE STORIES

Acquiring audiovisual rights to a life story is not easy. It often takes many months and requires a great deal of energy, persistence, and patience. In negotiating agreements, the attorney does much more than just throw in every term favorable to the client. The terms the client might reasonably expect to obtain must be established, without destroying any chance of obtaining the necessary rights. Expressing frustration is a sure-fire way to kill any chance of putting the deal together.

The first-time filmmaker is well-advised to seek exclusive rights to interviews for a stated period of time; a release from all privacy and publicity rights; and the exclusive right to use the pertinent documents, pictures, footage and other materials, for at least five years.

However, a filmmaker who is unable to pay a substantial sum to acquire the rights is probably better off not seeking a release of claims for libel and/or slander, because this might cause the subject to reject the entire proposal. Producers, writers and directors should always be warned not to defame anyone in their works, and of course their productions must be reviewed by a qualified lawyer at each level.

BOOK TO FILM

The enormous quantity of nonfiction stories published each year provide substantial resources for filmmakers. Most writers are as eager to see a film made based on their books as filmmakers are to make one. Another good approach is to find a terrific book that was popular many years ago, has since been forgotten, and has never been used as the basis for a movie or television program.

A typical arrangement is to obtain either an agreement for exclusive rights or an option. For a low price under five thousand dollars, a one-year option can often be extended from year to year for up to five years.

For a much higher payment ($100,000 or more), exclusive rights can be exercised at any time during the option period. Once exercised, the filmmaker would have the exclusive right to make an audiovisual work based on that book for the life of the copyright, subject to any applicable right of reversion, such as the one set forth in 17 U.S.C. §203 of the United States Copyright Act.

RECORDING LICENSES

No one would think of purchasing a house without first assuring that a chain of title is established in the courthouse. Once a transfer of the property is obtained in writing, the transfer is recorded in the courthouse of the county in which the property is located. However, those who acquire exclusive licenses to literary works frequently fail to take the analogous steps provided for under the Copyright Act.

Grants of copyrights and exclusive rights in copyrights are not valid unless they are in writing. Also, they can be subject to loss due to bankruptcy of, or unscrupulous conduct by, the grantor. If a copyright is not properly registered or all assignments of that copyright are not duly recorded in the U.S. Copyright Office, the latest acquirer may lose the copyrights assigned.

The copyright should be registered in the name of the original author and each grant of an assignment or exclusive license should be recorded. Rather than record the entire agreement, the parties will often sign a short form exclusive license that sets forth the terms of the license to be recorded. This maintains the confidentiality of the terms of the overall deal, while still meeting the requirements of the Copyright Act.

CONCLUSION

Rights to a life story can be extremely valuable, especially for a new filmmaker. Acquiring such rights can mean the difference between having an idea stolen and making one's own film or program. Proper acquisition of rights also increases the chances that the filmmaker can obtain distribution for the film.

This article is derived from a talk given by Rob Hassett at the Fourth Annual Entertainment and Sports Law conference on Friday, September 26, 2003.

The information is provided for the purpose of general education, and does not constitute legal advice. Laws vary from jurisdiction to jurisdiction and change continually. Therefore no reader should rely on this article, but should always consult an attorney for legal advice.

ROB HASSETT focuses on legal issues and agreements involving information technology, Internet and entertainment law, including information privacy and security, corporate, copyright and trademark matters.

He frequently represents entrepreneurs who are in technology and entertainment. From time to time, Rob also acts as an agent for proprietary technologies.

Rob is the co-author of Volume 5 on Internet and Interactive Media Law of LexisNexis' 10 volume treatise on Entertainment Law contracts.

For 1998-1999 he served as Co-Chair and for 1999-2001 was Chair of the Subcommittee on Policies for Managing Generic Top Level Domains of the Special Committee on trademarks and the Internet of the Intellectual Property Law Section of the American Bar Association.

He teaches Information Security Law in the Professional Education Program at Georgia Tech.

Rob has written numerous articles which have been published concerning software, entertainment, internet, copyright, and trademark law. He has also given numerous presentations in these areas. From time to time, Rob appears on television programs to discuss issues relating to Internet law.

Since 2004, Rob has been recognized as a Georgia Super Lawyer in Intellectual Property Law, identifying him as one of the top five percent of attorneys in Georgia.

Rob graduated from the Georgia Institute of Technology with a Bachelor's degree in Industrial Engineering. While attending Georgia Tech, he interned for the Georgia Power Company. He attended law school at the University of Georgia, where he was a member of the Editorial Board of the Law Review and graduated cum laude.

ROB HASSETT
ATTORNEY AT LAW
Casey Gilson Leibel P.C.
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Atlanta, GA 30328

PHONE 770-512-0300 Ext. 557
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