Life Rights for Biopics and Docudramas: The Case for Acquisition
Biopics and docudramas –films portraying the real events of a person’s life—are deeply popular among movie studios today. Indeed one of 2024’s most successful films, A Complete Unknown, is a biopic of Bob Dylan (while the producers in that film did not acquire his life rights, they did receive his permission to make the film and his cooperation).[1] In producing these projects, studios will frequently purchase the life rights of their subjects through contractual agreements. Despite this practice, life rights, from a legal perspective, do not technically exist.
The First Amendment to the Constitution ensures that speech –such as the portrayal of real events – is presumed to be protected. This First Amendment protection was exemplified by the foundational case De Haviland v. FX Networks, LLC, which arose from a dispute over a film about actresses Bette Davis and Joan Crawford[2] In the film, Catherine Zeta-Jones portrays Olivia De Haviland, who is a good friend of Davis in real life.[3] De Haviland claims she did not give the production permission to use her name or identity.[4] The court ultimately decided and established that the First Amendment fundamentally protects expression like the portrayal of De Haviland, whether they are fictionalized or not.[5]
In addition to the First Amendment, facts cannot be copyrighted. Hoehling v. Universal City Studios Inc. exemplifies this.[6] That case addresses a dispute arising from a book providing alternative explanations for the 1937 Hindenburg Disaster.[7] After the disaster, there were numerous journalistic and literary accounts and investigations into the incident.[8] In 1962, A. A. Hoehling published his book, “Who Destroyed the Hindenburg.”[9] In the book’s final chapter, “Hoehling suggests that all proffered explanations of the explosion, save deliberate destruction, are unconvincing. He concludes that the most likely saboteur is one Eric Spehl, a ‘rigger’ on the Hindenburg crew who was killed at Lakehurst.”[10] Later, author Michael Mooney wrote a novel that portrayed Spehl planting a bomb on the airship.[11] The court ruled that presented as historical fact, the potential reality of the sabotage—whether true or not—is not the original work of the author but a moment of history.[12]
Given these foundational legal principles, recent examples illustrate the value of acquiring access to a subject through life rights. The 2022 Netflix miniseries Inventing Anna portrayed con artist Anna Soroki, who posed as a wealthy German socialite in order to gain access to New York high society.[13] In preparation for production, the producers consulted extensively with Sorokin, gaining crucial insight into, not only her life story but the nuances of her quirky personality and demeanor[14]. Beyond the story itself, acquiring life rights and the resulting cooperation of a subject like Anna ensures she cannot claim to have been blindsided by the production and publicly disparage it.[15] If she did so, it could harm the production’s reputation and the resulting profits.[16]
At the same time, some recent productions have faced issues as a result of not acquiring life rights and the subsequent lack of cooperation from the subject matter. For example, The Apprentice, a 2024 biopic about President Donald Trump, struggled to find distributors in the United States because of its portrayal of the president.[17] Further, while he did not eventually pursue litigation, the president sent a cease and desist letter to the filmmakers, forcing them to employ lawyers to counter it,[18] In particular, there was much controversy surrounding a scene in which Mr. Trump raped his wife Ivana.[19] While Ivana did accuse him of Rape, there is still potential for the President to bring a defamation claim, putting the producers in a difficult position.[20] Another film, the 2001 Winnie Mandela, a biopic about the wife of iconic South African activist and then president Nelson Mandela, had a disastrous run in part due to criticism from the subject herself. Crucially, there was no life rights agreement with Mrs. Mandela.[21] There was no life rights agreement with Mrs. Mandela.[22]. After the film’s release, Mrs. Mandela publicly derided the film, leading to public uproar and almost certainly contributing to near-universally negative reviews.[23] Receiving public criticism from a widely admired subject can destroy a movie’s commercial potential.[24] Had the producers involved Mrs. Mandela and received her blessing—as with Inventing Anna—the film could have been more successful.[25]
Life rights can provide producers with access to a subject, which can prove critical to obtaining the information necessary to create a successful film. [26] Further, these agreements can allow producers to gain exclusivity to a subject’s participation in a project, placing them at a competitive advantage in the film marketplace[27] Similarly, the agreement can also ensure that the subject participates in publicity for the film, increasing its potential commercial appeal.[28] These agreements further make it far simpler to acquire the necessary insurance required by distribution companies.[29]. Simply put, life rights acquisition is primarily a business, not a legal decision.[30] That being said, it is a good business decision for those seeking to avoid litigation and complex publicity scandals, while also desiring access to the best possible resources for the film.[31]
Footnotes
