Q: I have recently optioned the autobiography of a person that I’d like to use as the subject for a feature film. In the last quarter of the book, a historical figure whom my subject served with in the military is featured in a number of scenes. Do I have to get clearance from the person’s estate before using them in the script? I assume the author got permission to use her story in his book, but does this permission extend to a film?
A: Judging by your question, I think I can assume that your historical figure is truly historic (i.e., he or she is history). Either that or you are pondering getting clearance from someone’s large house. I’ll assume the former. The fact that your person of interest is an historic figure and is no longer with us makes your question much easier to answer.
Whenever you’re depicting real people in a film, there are three main things you need to worry about: defamation, right of publicity and right of privacy. Because of the facts in your situation, you may be able to imitate Alfred E. Neuman and sit back, smile and ask “What, Me Worry?”
With respect to defamation, the historical figure’s family’s loss is your gain (sorry about that, historical figure’s family). As a rule, you cannot defame the dead. Under the law, the right to not be defamed is a personal right — only the person in question can sue for defamation. Therefore, a family member cannot bring a claim against you. I’m assuming you’re going to try to recreate reality the best you can but even if you decide to portray the person as a raving lunatic, that person can’t sue you for defamation because that person can’t do much of anything considering their physical state.
When it comes to right of publicity, it doesn’t matter that your historic figure is deceased because family members do have a continuing right to prevent others from using their dead loved one’s name and likeness for commercial purposes (which triggers a right of publicity). Additionally, this right applies to both public and private figures. Therefore, this could be a concern. The good news, however, is that use of a person’s name and likeness in a film has been held not to be the type of use that violates a right of publicity. Although your film will hopefully make money, courts have held that they are more akin to art than a commercial product. Please note, however, that if your movie is the next summer’s blockbuster, you cannot include depictions of this real person on any merchandising, commercial tie-ins or the like, because that may be considered a violation of that person’s right of publicity that can be actionable by the person’s family. In other words, I don’t want to see a McDonald’s Happy Meal action figure depicting your historical figure (actually, as a consumer, I’d love to see it — but as your legal conscience, I don’t).
That leaves rights of privacy. This is a fairly complex area of law. Luckily, and without even getting into whether or not the historical figure’s family could have a claim against you on such grounds, by your use of the term “historical figure,” I’m assuming he or she was a public figure. A public figure has significant hurdles to jump over in order to have a valid claim of an invasion of their right of privacy. Due to the fact that it sounds like you’re depicting something that could be in the public interest, without knowing all the facts, I would think your first amendment right should keep you safe.
From the answer above, you can see that it likely doesn’t matter whether the author of the autobiography acquired the film rights to this historical figure’s life. Most likely the author did not and did not need to for the reasons referenced above.
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.