So you have decided, after listening to ESPN’s three-week long rant about LeBron James’s every movement, from his practice schedule to his trip to the coffee pot, that you are interested in making a documentary or narrative film depicting King James’s most abhorrent move to Miami. However, creating an independent film about a famous person can be very delicate endeavor.
You ask yourself, “What steps do I need to take to start filming?” While obtaining the rights to film LeBron and to use his name and likeness to attract investors for the film would prove to be the best option, doing so might prove difficult, costly, or even impossible. Although making a film without obtaining those rights could land you in a legal battle that leaves you with a film you cannot legally distribute and damaged financially. Is there a middle ground? Perhaps.
Depending on the type of film you would like to make, the importance of obtaining a formal release from LeBron and the potential risk for not doing so may change. For instance, if you wanted to sit down with LeBron for a personal interview to use in a sports documentary, you would likely need his personal release, but if you were filming in the streets of South Beach and LeBron walked by while you were filming, you probably wouldn’t to use the snippet of him in your film. If you couldn’t obtain a release from LeBron, you could also make a film about him using archival footage that you would just have to license from the rights owners. You typically need to obtain releases from all persons in a film that are clearly recognizable or, alternatively, you can distort their image to make them unrecognizable, however, public figures do not have this same right to control use of their image in public.
While the freedom of speech and freedom of the press grant people the ability to make statements about people, these powers are not without limits. The right to privacy and the right to publicity give individuals a basis for legally challenging other’s use of their name and likeness. Generally, all people have rights to control how they are portrayed in public, however, the right to privacy varies from person to person. As mentioned above, an individual’s right to privacy is lessened when they are a public figure (i.e. politicians, sports figures, celebrities, etc.), they place themselves in the public eye temporarily (i.e. current news figures), or are participants in matters of public interest. This limitation on the right of privacy allows newscasters, journalists, and radio hosts to make inflammatory statements about public figures that they might not be able to make about the average person without being sued for defamation. Typically a public figure can only sue for defamation if the statements made were false and made maliciously. That is why in filming, you should make sure that any statements made are truthful or you have a reasonable basis for believing that the statements are true, such as the information is double-checked through two separate and independent sources.
In addition to being sued for defamation–which means the publishing and distribution of media with statements (typically false) that negatively affect the person commented upon– you can also be sued for making truthful comments. People’s right to privacy also protects people against the disclosure of private facts to the public that would be “highly offensive” to the hypothetical ordinary and reasonable person, even if they are truthful. It is important to note that truth is only a defense and will not eliminate possibility of litigation. Additionally, if your statements are made in an opinionated or humorous way, it must be clear to the reasonable listener that the statements are not meant to be taken as fact.
Hypothetically, let’s say you wanted to make a short film with the inflammatory claim that LeBron’s rise to the NBA was assisted by the use of illegal anabolic steroids. LeBron is surely not going to sign a personal release for you to create the film. You would be able to license footage to support your thesis and because the story itself is newsworthy and is a matter of public interest, it is probably reportable. In this case, use of an illegal drug is a crime, is considered within the public interest, and is always reportable. Contrarily, a narrative film reenacting a non-public figure’s numerous extramarital affairs would not be fair game because they have not placed themselves in the public eye and thus have an expectation of privacy. Although a similar film about Tiger Woods, because of his iconic public figure status and roles as an athlete and a role-model for children, would likely be legitimate.
Although public figures have a lesser right to privacy, they still have the right to be portrayed accurately and not to have their name or likeness commercially exploited. Let’s say you call your film “LeBron James on Steroids” or you put his name and face on promotional posters for the film; you would almost certainly run into right of publicity issues. Even if there wasn’t any right of privacy issues, LeBron’s right to publicity would allow him to potentially enjoin the film from being distributed and then bring a suit for damages against the filmmaker. A court’s injunction of your film would essentially render your filmmaking efforts moot and you could be subject to hefty personal damages. For example, in California damages for infringement of someone’s right of publicity can carry damages of $750 or the actual damages suffered, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages, as well as potential “punishing” punitive damages and attorney’s fees and costs. Also important to remember is that the right of privacy is a personal right that dies with the person, but the right of publicity is a property right that continues after the death of the individual and can be passed onto heirs, thus potential liability for unauthorized use of someone’s name and likeness is not easily avoided.
So by now you have realized that getting LeBron’s approval is the best way to go about using him or his fictionalized likeness in your film but that might be impossible in numerous scenarios. If you can obtain his release, you can do so in one of two ways: through a verbal release captured on film, in which you provide the individual with full and informed disclosure on film or through a written release. The prior might be easier if you are filming a documentary because you can simply tell the subject while you are filming them, the details of the documentary. Tell them that you are making a documentary, tell them what it is about, and that, as with most documentaries, it is uncertain how it will be distributed and/or entered into film festivals, and that there is potential for its sale, etc. While a verbal release might be sufficient, it is always best to get something in writing. In a written release agreement, you can outline the specific scope of rights granted to you and waived by the individual; for example, if you were planning to create a narrative film based on the life story of LeBron James you would need him to sign a Life Story Rights Agreement. Additionally, within a typical release agreement is a clause outlining the use of an individual’s name and likeness in the publicity of the film.
When it comes to making a film, it is always best to obtain releases, however, if you cannot obtain proper releases remember to ask yourself a few questions: “Is the person filmed a public figure? Is the information presented about the figure newsworthy? Does the public have a right to know?” If the answers to all those question are yes, then you probably will not have a right of privacy issue with not having a personal release for that person. One simple but complicated question will guide you on whether you have undermined a person’s right to publicity: “Have you commercially exploited the figure’s name or likeness?” Using a person’s name or image in any way in an effort to advertise, sell, or distribute the film would be a violation of that person’s right of publicity, a right that is separate and distinct from their right to privacy in which you may have more leeway. So get your basketball shoes on, your cameras out, and happy filmmaking.
Special thanks to my intern Greg Geiger with drafting this article. Also, college football season is finally here and I am pumped that this will finally be Cal’s year!!! If you read this column, you may have put up with my many sports analogies/rants. So I feel obliged to give back—reader, if Cal wins the BCS this year, please show up at my office the next day (January 11, 2011) at noon and I will treat you to a fantastic cheeseburger lunch! Mark your calendar!
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