Q&A: What Life Rights Do I Need to Write a Screenplay About Someone Who Died But Has Surviving Family?

Q: I have a question that I’ve been toiling over for months. I’ve done some research on it and cannot find a clear answer. I’m beginning to work with a writer on a screenplay on someone who died about 20 years ago. She has surviving brothers, but her parents are dead and she never married or had children. What type of life story rights do we need to acquire to tell this story — a screenplay that could potentially turn into a feature film? I guess the first question should be do I even need to buy or acquire the life story rights? Can I just change her name?

A: First of all, there is really no such thing as life story rights. There is the right against being defamed. There is the right against certain private facts about you being publicly disclosed without your permission — the New York Times would be violating it if its reporter sneaked in your bedroom, copied your most secret diary entries, and published them. And there are certain other rights of this nature. But there is no life story rights. When you buy life story rights, what you really “buy” is a promise from the subject of your story that they will not sue you for defamation or any number of other possible violations of their privacy rights.

In theory, you can make a movie about anyone alive without obtaining their “life story rights,” as long as the movie doesn’t defame the subject and doesn’t violate all these other privacy rights. In practice, that’s hard to do and no matter how much you try not to violate these rights, you can’t stop someone from alleging you did. So practically, in most cases, when a movie is made about someone alive, “life story rights” are acquired.

Now let’s focus on the dead. Perfect timing — Halloween is less than a month away. The dead can’t be defamed. The dead have no rights of privacy. The dead have no say about how they’re portrayed in movies. You can say anything you want about the dead, true, false, or in between. Well, not all of the dead.

Some of the dead are better protected than others. You can’t get sued for defaming the dead in the United States (or in other countries that follow British common law), but you sure can be sued (and even imprisoned) for defaming the dead in many other countries (as a rule of thumb, in any countries led by someone whose official title has the words “Supreme Leader,” “Chairman,” or “Revolution” in it).

If you call Joseph Stalin a “bloodthirsty cannibal” in Russia, you’d get sued by Stalin’s grandson. Just happened a few years ago. But even a Russian judge (the one whose score is routinely thrown out in Olympic competitions) threw this lawsuit out.

If your story is about some long-dead, but still admired in her country, female dictator, you can’t be sued by her second cousin twice removed in the United States, but I wouldn’t recommend that you travel to the premiere of your movie in her country. Actually, this example is impossible. There are no female dictators. Would the world be a better place if there were women dictators? I don’t know. That’s a question for another blog.

So let’s say your story is about Chairman Mao’s favorite wife who died decades ago. And let’s say you portray her as a murderous, bloodthirsty, sexually deviant monster. I don’t know, but I’m sure Mrs. Mao is still, at least officially, admired in the People’s Republic of China. I don’t know, but I’m pretty sure that it’s criminal (and by criminal I mean prison time) to defame or probably even mention in less than absolutely glowing terms the Chairman or his favorite wife in China. Of course, in the U.S., you can portray Mrs. Mao as anything you please. Just think hard before your next trip to Hong Kong.

So if your dead heroine is not from one of these countries that “protects” the dead, you’re in the clear. But don’t forget about her still living brothers. If you include them in the script, then you do have the “life story rights” problem with them.

Finally, this is all legally speaking. As for not speaking ill of the dead, that’s between you and your rabbi, yoga instructor, pedicurist, or whatever — can’t help you there.

This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.

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4 Responses to “Q&A: What Life Rights Do I Need to Write a Screenplay About Someone Who Died But Has Surviving Family?”

  1. Nathan says:

    Hi Matt,

    So this means that I can write a screenplay based on someone’s life if they are dead? What if they wrote a book about their life but the publisher of that book has film rights. That just means the publisher has film rights to what is in that particular book, not the deceased life story right?

    Thanks
    Nathan

  2. Tom Stones says:

    Hi,

    I would also like to know an answer to Nathan (aboves) question.

    If someone has died but wrote an autobiography that was published, can I write a play about that persons life?

  3. Jennifer says:

    I have precisely the same question as Nathan. I talked to an attorney about using things in an autobiography my subject wrote (she was in a highly publicized scandal and later wrote about it as one chapter), which is not yet in the public domain. Her daughter is still alive (though quite old, now), and was peripherally involved. The attorney said that you can’t copyright what ‘happened’ – only its expression. However, because I’d only know about certain facts because of the book, would I need to get the rights to whoever has them for the book – her daughter, I assume? (The book is long out of print, by the way.) Thank you for your help! I’m sure it’s a question quite a few screenwriters are trying to sort out.

  4. Chesley Lydekker says:

    Is a private estate my family owned until 50 years ago, but remains perfectly preserved by a new owner considered public domain property if its atmosphere has inspired a fictitious estate in my screenplay 2016.

    Can only say many thanks for an answer or reference; and when things materialize will certainly keep your firm handy: so far, screenplay money I’ve made came from personally winning two law suits against L.A. agents.

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