But to what extent is someone’s life story protected? What should you be concerned about when you want to use another’s life as the basis for your script?
The legal issues surrounding these questions are complex, and screenwriters have wound up in court for issues ranging from defamation to invasion of privacy and publicity rights. If you are planning a creative project based on the life of a real person, it is essential to protect yourself on the front end by speaking with a lawyer who is well versed in intellectual property law and understands the film industry.
Questions to ask a lawyer about your life-story script
Here are some of the many things you should consider, ideally before you begin writing, but at least before you go mainstream with your work:
1. How much do I need to change?
In 2016, the Ninth Circuit Court of Appeals held that The Hurt Locker’sartistic expression of one man’s life – Staff Sergeant Jeffrey Sarver – was protected under the First Amendment. The Court said, “[T]he First Amendment… safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” The keyword to pay attention to is “transform.”
Whether you transformed the work enough is a question a judge may ask should you ever find yourself in court over your script. “How much is enough?” depends on the unique facts of your case and is something to discuss with a lawyer.
2. Do I need to make my story a work of fiction?
As you know, a film’s success can depend, at least in part, on the public knowing that it is based on a true story. What if you want it to be as factual as possible? How much are you willing to change vs. tell the real story? Will fictionalizing it too much portray the person in a false light? This is something you should consider at all stages of your draft.
3. Does it matter if my characters are public figures?
Public officials’ privacy rights are different from those of private individuals. It is important to consider how public or private your character is in “real life,” and how that affects the decisions you make for your script.
4. Is it worth it to purchase someone’s life story rights?
Purchasing someone’s life story rights can protect you from lawsuits. It can also give you access to undisclosed information (such as a diary not yet available to the public). That said, it isn’t always necessary. A lawyer can help you evaluate the pros and cons of purchasing life story rights.
5. If I purchase someone’s life story rights, what should be in my agreement?
Your agreement will define what you can use and how often. There are many things to consider here such as whether you will write a sequel or need rights for live productions. Do you need rights from multiple individuals (family members, etc.), or solely from the individual whose life is front and center in your script? Should the rights be assignable (you might need to assign them to a studio, for example)? What will you offer the individual in exchange for the rights?
6. How much research do I need to do?
If you are basing your script on fact, it is important to verify all your facts, and verify them again. And again. An attorney can help you determine a good process for fact checking the information in your script.
A lawyer can help during all stages of the process
Your attorney should be someone who is an advisor to you throughout the process. When I represent clients, I don’t step away after the first meeting. If someone has questions while they are working on their script, I’m available to answer them.
Once you are done with your script, have your attorney do a thorough review of it and alert you to any potential legal challenges you might face. Ideally, that same attorney will be able to help you protect your creative work through production contracts, financing agreements and other necessary legal documents.