Are life story rights clearances from biopic and docudrama subjects legally required?

Every indie film producer wants to check as many items as possible off his or her “to do” list during development. Should clearing life rights for the living subjects of biographical films and dramatizations always be one such item?

The question was one on the table at Southwestern Law School’s recent Entertainment and Media Law Conference. It’s one to which independent filmmakers generally assume the answer is an unqualified “Yes!” But it may not be that simple. Faced with subjects who may refuse to grant permission for cinematic portrayal of their life stories, it may be helpful to understand when—and if—legal options exist.

Every situation, of course, is different, so this post should not be treated as specific legal advice applicable to your film and its subject. Always consult an entertainment attorney who can evaluate your planned story and advise you. Some general guidelines, however, can be kept in mind. As in many other aspects of entertainment law, the issue here is understanding the intersection between a filmmaker’s rights under the First Amendment, which protects speech, and the subject’s rights under applicable state privacy, publicity, and defamation law.

Legal Background
The lines around that intersection were repainted about two years ago by the California Court of Appeals in the case of De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018). A little more than a year ago, the U.S. Supreme Court denied review, leaving the lower state court decision in favor of FX to define the lanes for filmmakers seeking to avoid the hazards of litigation. While de Havilland is law only in California, it will likely be persuasive in other states, so having a good idea of what it permits makes sense.

In a nutshell, clearance of life rights when writing or producing a dramatization or fictionalization of someone’s story is not an absolute legal prerequisite. If your depiction is reasonably accurate and is not defamatory, it will likely be found entitled to First Amendment protection. That’s extremely important. Allowing a litigant—even a Hollywood legend like Ms. de Havilland—to prevent such a portrayal would leave, in the words of the California Court of Appeal, leave:

“authors, filmmakers, playwrights, and television producers in a ‘Catch-22.’ If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative—even fictitious and therefore ‘false’—way, they face a false light lawsuit if the person portrayed does not like the portrayal.”

Three Reasons Clearing Life Rights is a Practical Step
But does that mean that producers should simply disregard clearances? No, for several reasons that are also extremely important. First, clearing life rights upfront means that the filmmaker will not have to defend defamation, false light, and other privacy rights claims in the first place. Even if all attorneys’ fees and litigation costs were recovered after such claims were defended successfully, there would still be the considerable burden of lost time, as well as lack of peace of mind while the outcome is unknown. Very few aspects of any lawsuit are absolutely predictable.

Second, errors and omissions insurance underwriters will almost certainly refuse to cover your film without clearance. Since, as noted above, a lawsuit’s outcome cannot be guaranteed, and the time and expense may be quite significant, clearance is nearly always vital to securing an E&O policy. And such insurance coverage is a requirement for anything beyond self-distribution, including distribution via Internet streaming, studio, television, cable network, and DVD. An International Documentary Association blog post explains, errors and omissions insurance “protects filmmakers from lawsuits pertaining to theft of idea, copyright infringement, libel, slander, invasion of privacy, defamation, product disparagement, trade libel, infliction of emotional distress, right of publicity, outrage and outrageous conduct, false light, wrongful entry, false arrest or malicious prosecution.” All claims that an unhappy life story subject (whether justifiably or not) might assert. An underwriter might accept a strong legal opinion supporting the script in lieu of clearance in certain cases, so inability to obtain life rights should not necessarily stop development. Discuss that possibility with your entertainment attorney. As a general rule, though, if you can obtain clearance, you should. It will make production and distribution that much easier.

Finally, clearing life rights may allow you to access private information from the subject that might not otherwise be available. With such inside knowledge, you may be able to strengthen your portrayal—and do so while also strengthening your legal position. Both may make your biopic or docudrama more attractive to film distributors.

Dane Johnson
djohnson@iss.law