This year’s Academy Awards highlighted the gripping drama of real, modern lives, and not just in the documentary categories. Best Picture winner Spotlight, along with nominated film The Big Short, are contemporary stories grounded in true events.
With true stories come real people, whose real lives are playing out on big screens across the world. Are there legal ramifications that have to be dealt with when filmmakers create movies from true stories? Absolutely. Let’s take a look at some of the legal concepts and claims that come into play.
“Right of publicity” and “use of likeness”
The right of publicity and use of likeness are separate legal doctrines from the intellectual property concepts of copyright or trademark. Right of publicity and use of likeness are more modern concepts, protected by various state laws and judicial rules. Right of publicity prevents the unauthorized commercial use of a person’s name, likeness, or other recognizable characteristics. The idea is that individuals should have the right to capitalize on or benefit from their own persona or story.
Use of likeness comes into play when a photo or video of a person is used for commercial purposes. This right is probably more familiar to people. Use of likeness comes up in litigation when companies use photos from Instagram or another social media platform without getting consent from the person. (Generally, public posting of a photo on a social media platform does not prohibit someone from using that photo, but if it is a photo of a person, then the likeness issue would arise.)
Of course, getting a waiver or written consent is a direct way for an author or filmmaker to use someone else’s likeness or life story. David Yung Ho Kim, an entertainment attorney in Los Angeles, says, “You simply need to get approval from the persons directly related/depicted in the real-life events by having them execute a life story rights agreement. And most often, a fee is requested on the rights owner’s end based on what project is for and how much will be centered on the particular story or portion of story. “
But does a studio have to get life rights or a person’s consent to make a movie? Not necessarily. No one, not even the person who lived it, owns a copyright on facts or real events. Filmmakers or authors can absolutely create a work based on a factual story and mention real life people without worrying about a copyright or intellectual property claim. Even so, as Tom Isler wrote in Documentary Magazine, creators will often seek waivers or agreements to head off any potential litigation. “[S]tudios that don’t secure life-story rights from subjects are opening themselves up to potential lawsuits—claims of libel, defamation or invasion of privacy. Thus, life-story rights deals, at their core, are promises by subjects not to bring such claims against the studios.”
Harm to reputation
So what are those claims that the life rights agreements seek to avoid? There are situations where someone creates or says something that causes harm to person’s reputation. Those concerns were almost certainly on the minds of the filmmakers when writing and filming both The Big Short and Spotlight, as both deal with very controversial issues.
“Defamation” is the umbrella term that includes libel (defamatory writings) and slander (defamatory speech). Defamation occurs when someone says or writes something about another person that is untrue and causes damage. False light claims are slightly different than defamation. In a false light claim, the injured party has to prove that something offensive was falsely implied about them. In many states, like California, false light claims are separate claims from libel or slander.
As an example, let’s look at the underlying subject matter in Spotlight: the child abuse scandal in the Catholic Archdiocese in Boston. Say a newspaper article said that a person knew about the abuse and did nothing. If the newspaper’s assertion was false, it would be grounds for a defamation claim. However, if the article didn’t come right out and say it, but merely falsely implied that the person knew about the abuse and did nothing, the newspaper would be open to a false light claim.
Movies like The Big Short and Spotlight deal with real life issues, but in a way meant to entertain and provoke thought and comment in a considered and legal manner. But in the modern world of social media and the constant need for Internet comment, people should have a basic understanding of the intellectual property, likeness, and reputational issues and behave accordingly. You don’t have to be a bigtime filmmaker to run afoul of these legal issues.
Image courtesy of YouTube/Sony