While original screenplays require no legal counsel, there are many instances where you will need to acquire rights prior to developing the idea into a screenplay. In addition to the examples mentioned in the previous screenplay post, here are some additional common types of screenplays that would require legal agreements.
You cannot develop a screenplay based upon the life of a private person absent a Life Story Agreement between the person and you. A “private person” is a living person, who is not a celebrity and whose story has not been previously the subject of a national news story. In other words, a private person is someone not known to the general public. Do not commence writing until you have entered into the Life Story Agreement. The only exception here is if you are writing about a deceased person because the right of privacy terminates upon death.
A Life Story Agreement grants you the right to develop a screenplay, to produce the screenplay into a motion picture, and to distribute and exhibit the picture based on the subject’s life. The Life Story Agreement is an Option/Purchase Agreement (see below for an explanation of Option/Purchase Agreements) which takes into account the personal nature of the rights being acquired. The option fee and purchase price for a private person’s life story are generally on the low end because there is no “demand” for the private person’s life story. The option fee is minimal and the purchase price is a lot less than the private person might expect. You will hire a writer to write the screenplay if you do not write it yourself, so do not overpay for the life story rights.
You need the Life Story Agreement not only because you need permission from the subject of your screenplay, but, also, because you want access to the research you require to develop the screenplay, such as journals, letters, and interviews with the subject and people who know the subject. You can and should grant the subject the right to comment or consult on the screenplay, but do not give the subject final approval over the screenplay. You want the subject to provide feedback, but you do not want the subject to keep you from producing the picture.
Keep in mind that the Life Story Agreement conveys upon you the right to use the subject’s life story—it does not give you permission to defame or portray the subject of your screenplay in a false light without legal repercussions. Go ahead and take reasonable dramatic license with the story, but do not depict the subject in an untrue and inaccurate manner—especially one that would be offensive or damaging to the subject. Let the subject comment on the screenplay so that you know where you have potential issues. It is much easier and cost-efficient to fix the problems during the writing process than to address them in a court of law. Note that defamation and false light are not the same thing: the former is making false statements that harm a person’s reputation and the latter is making untrue statements that are offensive to the subject or causes the subject embarrassment.
People who disclose their private facts and live public lives such as celebrities, politicians, and other persons in whom the general public has great interest are all considered “public persons.” They have a more limited right of privacy and a lesser expectation of it.
You have a lot of leeway with politicians because of the First Amendment and the public’s right and need to know about their politicians.9 You may disclose truthful facts about politicians, e.g., that a politician is taking bribes, is an alcoholic or drug addict, has cancer, is having an affair, etc. Limit disclosure to facts that impact the politician’s ability to do his job or how he carries out the responsibilities of his office. You do not have the same berth where a celebrity is concerned. If you want to avoid a costly judgment in favor of a celebrity, use facts that are already in the public consciousness, garnered from sources such as a trial transcript, news story, magazine article, biography, autobiography, television interviews, etc.
In the category of public persons are criminals whose crimes have catapulted them to celebrity status. Casey Anthony, Amy Fisher, Ted Bundy, and David Berkowitz aka the Son of Sam are what I call “celebrity criminals.” The aforementioned all had pictures produced about them, but not all entered into Life Story Agreements with the television networks that produced them. In fact, two of the three networks that produced pictures about Amy Fisher, the “Long Island Lolita,” did so without a Life Story Agreement. You can produce a film about a celebrity criminal as long as your screenplay does not deviate from the facts disclosed in court and in the news.
Notwithstanding, since the public person has a right to privacy, limited though it may be, I recommend that you consult with an attorney and that you enter into a Life Story Agreement rather than proceed without one. In order to secure financing and/or distribution for your completed film, you are going to have to warrant and represent that you have not invaded anyone’s right of privacy and will be required to agree to indemnify and hold harmless the financier and distributor if you breach that warranty and representation. This means that you have to reimburse the financier and distributor for any damages they suffer due to your breach of the right of privacy. The Life Story Agreement greatly eliminates the risk of litigation and a costly judgment, as long as you do not defame or portray your subject in a false light (there has to be an element of maliciousness where celebrities are concerned). The financier, distributor, E&O insurance carrier may want the assurances and rights granted via the Life Story Agreement and may make it a condition of financing and distribution. Also, you may want the subject’s cooperation either because you want to interview the subject to gain access to information that was not previously disclosed and/or need the subject’s help in securing releases from other individuals integral to the life story. You may read more about E&O insurance herein below.
The Right of Publicity
Every person, be they private or public, also has the “right of publicity,” which includes the right to control the commercial exploitation of their name, likeness, voice, and any other identifying aspect of their persona. The Life Story Agreement will grant you the right of publicity of the subject whose life story you are acquiring. You will not be able to advertise and distribute the picture based on your subject unless you acquire the subject’s right of publicity.
Also, though the right of privacy terminates at death, the right of publicity does not always, because state law determines whether the right survives death. For example, in New York the right of publicity is extinguished at death for persons domiciled there10 and, as per California statute, the right of publicity is a descendible property right that survives death by 70 years (for persons who died there prior to 1985).11 You need to know where the subject of your screenplay died and/or resided in order to ascertain whether the right of publicity ended with, or outlived your subject’s life.
A collaboration entails you writing a screenplay in partnership with another writer. Your writing partner and you will jointly own whatever you create together for the term of copyright, which is your lives plus 70 years. Do not commence the writing process prior to entering into a Collaboration Agreement with your writing partner. The Collaboration Agreement will address issues that will determine the success of the collaboration, e.g., who gets to produce, how copyright and compensation are split, the order of credits, what occurs if the two writers do not agree on creative or financial matters, who will shop the screenplay, what happens if you do not complete the screenplay due to a disagreement or death, etc.
Resist the temptation to enter into a Collaboration Agreement without the assistance of legal counsel. This three to four-page document is well worth the effort and cost. I know that you can download a boilerplate from the internet, but doing that will deprive you of the benefit of having an agreement tailor-made for your needs and the negotiation process that can be very telling. The attorney can help your partner and you come to an equitable compromise if you are not on the same page with regard to the Collaboration Agreement’s deal terms, and will advise you to walk away from counterproductive collaborations.
What happens if your relationship with the other writer has become completely unworkable and you started writing without a Collaboration Agreement? All may not be lost if your writing partner is willing to assign her interest in the screenplay (or whatever has been written thus far) to you. This transfer is done via an “assignment,” a written document that evidences the agreement of one party to bestow upon another an asset. In this case, the asset is the screenplay and its copyright. Go ahead and secure the assignment even if you believe that what you have written thus far may not qualify for copyright protection because an implied-in-fact or oral contract may be at issue. Note that you cannot affect an assignment via email because you need the assigning party’s written signature.5 These situations tend to be difficult ones to navigate due to the acrimonious circumstances that caused the rift between the parties. Nonetheless, cooler heads can sometimes prevail. Your attorney may be able to motivate your writing partner to assign the screenplay by offering him a portion of the screenplay’s purchase price and credit pursuant to the rules of the Writers Guild of America (“WGA”). I use the WGA rules for credit determination, even when the writers are not members because they are fair. You may have to shelve or assign the screenplay to your writing partner if he refuses to assign the screenplay to you.