Public, Private: A Need-to-Know Guide

George Rush February 23, 2010

People are eternally fascinated by the lives of others. Drama, drama, drama. We love it, can’t get enough of the sordid details. I like to think of myself as a sophisticate–but I just can’t get enough of Jon Gosselin!!! Despite the wide dissemination of such "tabloid" stories, there is one crucial question that could be easily overlooked when it comes to creating a documentary or independent film based on someone’s life.

Can someone make a documentary, biopic, historical or narrative film about a famous person without their permission? The answer is complicated at best. In fact, the answer can be summarized by one of the legal profession’s most revered responses: “Well, that just depends." A frustrating answer that means pretty much nothing. Except in this case, it’s as close to the truth as you can get.

Getting the "life story" rights is the safest way to go. However, there are a few small exceptions to this general rule that might allow a film to be made without getting life story rights. Even if your film falls into one of these narrow exceptions, there are considerable issues to be on the lookout for.

You can make a film about anything that exists in the public domain without getting any rights. If something exists in the public domain, it’s “owned by the public." There is no copyright to the material. This is stuff like facts, dates, and events. It also extends to anything not copyrighted, or to material whose copyright has expired. Now this intersects with life story rights because many people whose lives are actually worthy of being turned into film are already in the public eye. Many events in their lives might already be within the “public domain" if facts of their stories or lives are in the press, part of common knowledge, etc.

There is also the issue of matters in the “public interest," or the “public affairs” exemption. Basically, if a documentary or film deals with some issue that is of the public interest, or that relates to public affairs, then footage, or the likeness of a key player in that public interest can be used without getting the rights to it. An example would be a totally completely sick documentary about surfing. Say you wanted to use the footage of a world-class, well-known surf champion and base part of the documentary on gnarly parts of his life. You’d think you would need clearance to use these clips you shot, right? As if, brah! You can totally chillax and keep filmin’ because such a film would be considered within the limits of “public affairs."

Basically, surfing has created a lifestyle with its own lingo, way of dressing, behavior, entertainment and more. Depicting it in a film, even including clips where there’s no release, is considered perfectly fine since it’s of public interest. (Note: If there is a hall of fame for lame examples, reader, please nominate me!!!)

If you do choose to make a film without getting life story rights, there are still a few pitfalls to be aware of.

The first question a filmmaker must ask is: What are personal rights as they relate to the media? And why is that relevant to me? Basically, there are two main categories of personal rights as they relate to publicity through media. After all, people have rights. Right?

The first is the “right of privacy” and the second is the “right of publicity." The right of privacy is something that most people can intuitively figure out. It’s just a right to keep one’s secrets, well, secret. This is important because a filmmaker’s intent in such issues is never relevant. A filmmaker may unintentionally depict some aspect of someone’s life and still get nailed for it, even if it was purely accidental. There doesn’t have to be any specific intent on the part of the filmmaker to intentionally invade someone’s privacy. The invasion itself is enough to create legal problems.

The right of privacy can be violated in a few different ways. One is letting slip private facts of someone’s life. True, these private facts must be so secret, damaging, controversial, etc, that by releasing them a filmmaker engages in especially egregious actions that are highly offensive. Again, this is a vague standard open to interpretation. Clearly, the danger in making a film about someone without their permission would be to accidentally divulge such information without the subject of the film’s permission. If a suit is filed and the court just happens to interpret this vague standard to favor the plaintiff, then bam, that’s it. You’re in a litigation wasteland with almost no way out.

It is worth mentioning that the right to privacy does end upon a person’s death, so if the subject of the film is deceased, you don’t have to worry about this.

The next right, the “right of publicity," regards publicity and advertisement. This right also makes it difficult to create unauthorized films about people’s lives, especially famous people. The right to publicity basically means if you’re going to put someone’s name or face on merchandise, posters, or anything else used to advertise a film and make a profit, you must have their authorization in writing. This would make it difficult to advertise a documentary or film about someone, even if all of the material contained within is completely legitimate, since you’d need permission to produce advertisements with that person on it.

This distinction is an important one. For instance, a play based on a famous singer’s life where no life story rights had been granted would not be considered an infringement on that person’s right to publicity. This is because the play itself doesn’t constitute “merchandise, advertisements and endorsements” the same way that movie advertisements, posters, or souvenirs would.

It is also important to remember that the right of publicity (unlike the right to privacy) is like a property right. What that means is that it doesn’t expire on a person’s death, but rather can be put into a will and transferred onto that person’s heirs. Most states allow that a person’s right of publicity exists for 50 to 70 years after their death.

The last thing that a filmmaker must remember is that defamation is a no-no, whether the filmmaker has someone’s life rights or not. If you’re making a film that is presented as a “truthful version of the facts," then you probably want to be able to verify beyond doubt that you truly believed the facts you portrayed to be actual facts. If you wanted to say something like “Lisa Bonet ate no basil” you would probably want to have multiple sources (at least two) confirm this to be true before putting it into the film. The fact that your statement is a palindrome will not help you if it is defamatory.

So, to summarize, it really does depend on the context and content of the film, as to whether it can be made without the subject’s permission. If the material falls under public domain, or is of public interest, then it’s probably OK. However, this is a difficult thing to determine and there are no clear definitions of what materials fall under these specific categories.

I’d like to thank my intern Monica Baranovsky for helping me with this article, and getting me up to date with 2010 surf speak (I guess "tubular" is pass‚).