Saturday, August 21, 2010

Do You Need Permission to Make a Movie About Real People? Ask Mark Zuckerberg and Joe Francis.

Clients often ask me about obtaining "life rights" in connection with films based on real events.  Most clients are under the impression that they can't make a film about real people without getting permission.  Not true.

Here's a great example -- the upcoming film, Social Network.  This article in The Hollywood Reporter describes apparent negotiations between producer Scott Rudin and executives at Facebook in connection with some of the depictions in the film.  The article makes clear that the film is not precisely accurate in its depiction of the story, nor is it intended to be.  Further, the last paragraph of the article specifically describes that life rights of Mark Zuckerberg and other key players were not obtained, and why it was not necessary.

While Rudin might be making a few minor accommodations, the truth is that film makers (and other creators of media) have the right to tell stories based on real people.  And they can even bend the facts a bit so long as they do it carefully, and clearly disclose that certain events did not actually occur.

Joe Francis
Contrast this with the story about Joe Francis threatening to sue Jerry O'Connell and the makers of Piranha 3D for disclosing Francis as the basis for the unsavory character played by O'Connell in the film. Clearly, Joe has no legal right or ability to stop the film.  However, the implication that the character is based on Joe when there is no underlying factual basis for that connection may indeed cross the line into defamation.  (It's probably not a strong case, but it certainly warranted the letter from Joe's attorney, Larry Stein.)  Thus, Jerry was clearly instructed to be more careful in how he used Joe's name in interviews about the film.

The bottom line is that the First Amendment does provide a lot of protection for film makers and creators of other media.  However, if you aren't getting permission from the people in your story, then you need to really understand the limits of that freedom and what actions cross the line into a lawsuit for defamation.

Don't give up on making your film or writing your book just because you can't get permission.  Be bold, be creative -- but also be smart and get some advice if you want to stay out of court.

8 comments:

David Geertz said...

Great post Roger! This is something that a lot of independents could learn from. I had no idea and am thankful for this information.

cheers
Dave

Roger Goff said...

Thanks, David. I appreciate the positive feedback. I actually found the contrast between the two situations to be very interesting.

Gordon Firemark said...

good post Roger. While it's true that, public record information is a valid source for an "unauthorized" depiction of a person, doing so requires the utmost of care.

Also, for many smaller indie filmmakers, the potential cost of a lawsuit needs to be considered. Sure, a major studio can afford the fight, but the little guys just cant. AND, distribution can be a tough nut to crack if the clearances aren't all in place... even with a strong opinion from a lawyer.

Roanne said...

Hi Roger,

Where does a writer stand if they want to write a drama with fictional characters but based on a real-life event? Thanks very much.
Roanne

Roger Goff said...

Hi Roanne - I notice you're in the UK, so the rules might be different there. If you'd like, shoot me an email and we can discuss further. Roger

JEM said...

I read this post and immediately thought of a friend of mine who wants to make an independent film based on Steve Jobs and Apple. His idea is to make this film before a major studio can despite the fact that the book and life story rights have just been bought. What kind of problems could he potentially run into with Steve Jobs estate, Apple and people that are still alive but integral parts of the story?

Anonymous said...

thanks for this post. you saved me about $500 I was about to spend on an entertainment consultant. thank you.

Rick Lee said...

Great post Roger! Your tips are always valuable to the filmmaker's community.
--Rick Lee Hollywood