For: Fourth Annual Entertainment and Sports Law: A Basics Boot Camp
Friday, September 26, 2003
Grand Hyatt Hotel, Atlanta
By Rob Hassett, Casey Gilson Leibel P.C., Atlanta, Georgia.
TABLE OF CONTENTS
I. INTRODUCTION ……………………………………………..…………………..
II. PROTECTING IDEAS ………………………………………………………….
III. LEGAL ISSUES RELATING TO DISTRIBUTION ………..…………………
IV. LIFE STORY RIGHTS …………………………………………………………
V. AUDIOVISUAL RIGHTS IN LITERARY MATERIALS ……………………..
VI. NEGOTIATIONS AND ACQUIRING RIGHTS ……….…………………….
VII. RECORDING EXCLUSIVE LICENSES …………………………………….
VIII. CONCLUSION ……………………………………….……………………….
An individual with an idea for a film or television program (hereinafter referred to as a “Filmmaker”) will want to reduce the likelihood that:
1. his or her idea will be stolen; and
2. legal concerns or uncertainties will make it difficult for the Filmmaker to obtain a distribution deal.
Obtaining life story rights, audiovisual rights to a pre-existing literary work, or other exclusive rights can reduce or eliminate these concerns.
II. PROTECTING IDEAS
A well-established Filmmaker can generally discuss their ideas with actors, studios and potential distributors with little fear of the idea being stolen. This is because it is likely that people with whom the established Filmmaker discusses the deal:
1. Would not want to cross the Filmmaker and face the consequences of making an enemy of someone with connections in the business; and
2. Would prefer to work with that proven Filmmaker if only to avoid competing with someone that is likely to complete production long before that actor, distributor, etc. could complete a competitive film or program.
This is not the case with a new Filmmaker. Ideas of new Filmmakers are frequently stolen. Of course, a new Filmmaker can have a non-disclosure agreement prepared which service providers (production companies, less well-known actors, etc.) would probably sign. However, the film studios and networks will not be willing to sign non-disclosures. In fact, they will require that the Filmmaker sign a submission release before submitting the idea. The submission release will usually provide that unless the studio or network violates the Filmmaker’s copyrights, the Filmmaker has no claim against the studio or network. So the Filmmaker should try to develop assets that are connected with the film or series that the studio would want. Assets could include an exceptionally well written script, audiovisual rights in a novel or other book, special skills, such as, if the film will involve underwater photography, talent as an underwater photographer, or if the film involves esoteric knowledge, exclusive agreements with a particular professor in the field. If the film involves a person’s life, exclusive rights to personal interviews, documentation and old footage would be helpful. The objective is to make it so that the studio wants something that the studio can get only if it works with the Filmmaker. Exclusive rights to base a film on a novel and exclusive life story rights are excellent ways for a Filmmaker to try to protect his or her idea.
III. LEGAL ISSUES RELATING TO DISTRIBUTION
A distributor of a film or series does not want to be concerned about lawsuits. Lawsuits relating to a film or program may be brought on a variety of grounds including:
1. Violation of privacy and publicity rights of an individual who is a subject of the film or program including:
(a) Wrongful appropriation of identity, likeness, image or name (this form of the right of privacy, with minor differences, also constitutes the right of publicity);
(b) Wrongful intrusion (peeping Tom scenario);
(c) Wrongful disclosure of embarrassing private facts; and
(d) False light;
2. Defamation, libel or slander of an individual who is a subject of the film or program; or
3. Copyright infringement of an underlying work such as a book.
Each of the above rights, except for copyrights, are governed by state, rather than federal, law and therefore vary from state to state. However, the statutes, in those states with statutes that concern privacy and publicity rights, tend to be similar. In those states, such as Georgia, where the rights are based on case law, the principles applied are generally similar both to other states where the rights are based on case law and those where the rights are set forth in statutes. Additionally, application of these laws is subject to the free speech clause of the first amendment, which curbs the impact that privacy and publicity rights can have on films and television programs. Of course, because of the differences that still exist, it is necessary to specifically check the law of each state that may be relevant. Likewise, most states have enacted statutes relating to defamation that are generally similar and their impact is subject to the free speech clause of the first amendment.
Wrongful appropriation and wrongful disclosure of embarrassing private facts are the areas of privacy law most likely to be violated by Filmmakers. Both are addressed in detail in the author’s article on privacy and publicity rights provided with this paper.
The type of wrongful intrusion that constitutes a violation of the right of privacy is wrongful intrusion into private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. To constitute a violation of the right of privacy an intrusion must occur in a situation where there is first a reasonable expectation of privacy.
False light invasion of privacy is the same as defamation except that the false statement need not be disparaging. For instance, if you say that a person went to Harvard when that person did not, you have not defamed that person, but you may have violated that person’s false light version of the right of privacy.
Often the subject of a biography or other work based on historical events will have created paintings, writings, photographs or other materials protected by copyright which could be useful in a film or series. Obtaining copies without cooperation of the subject of the film or series may not be possible. Use without authorization of the author will often constitute copyright infringement.
Films and television programs are also often based on literary works such as books and screenplays. These works are also usually protected by copyright law (unless because of the length of time since the author died or other reasons they are in the public domain) and therefore use as the basis of a film or program would constitute copyright infringement.
IV. LIFE STORY RIGHTS
Drafting and negotiating agreements is much more than a logical exercise where the attorney throws in every term favorable to his or her client. The attorney also has to try to determine in the particular circumstances what the client can live with and reasonably expect to obtain and help guide the client in determining what can be asked for without destroying any chance of obtaining the rights that are needed. Generally, for a first time Filmmaker who is not paying a substantial sum to the subject of a film or program, it is probably best to seek:
(a) Exclusive rights to interviews for any audiovisual work for a period of time (obviously the longer the better);
(b) A release from all privacy and publicity rights; and
(c) An exclusive right to use any documents, film footage or other materials that may pertain to the matter, especially photographs and audiovisual materials, for a period of time (at least 5 years).
For a first time Filmmaker who is not paying a substantial sum for the grant of rights, it is probably better not to seek a release of claims for libel and/or slander since this tends to cause the subject to reject the entire proposal. Producers, writers and directors should always be warned not to defame anyone in their works and have their productions reviewed by a qualified lawyer at each level (scripts, first cuts and final cuts) to flag potential problems.
V. AUDIOVISUAL RIGHTS IN LITERARY MATERIALS
Because of the great quantity of nonfiction books, novels and short stories published each year, and those that have been published in the past and not been used as the basis for audiovisual works, literary materials can be a great resource for Filmmakers. Many writers are as eager to see a film made based on their books as Filmmakers are to make one. A good approach is to find a terrific book that was popular many years ago, has since been forgotten, and has never been used as the basis for a movie or television program. A typical arrangement is to obtain either an agreement for exclusive rights or an option. Typically for a low option price (such as $1,000 to $5,000), the option can be extended from year to year for a similar low payment for up to 5 years. Exclusive rights can be exercised, for a much higher payment( $100,000 or more), at any time during the option period. Once exercised, the Filmmaker would have the exclusive right to make an audiovisual work based on that book for the life of the copyright subject to any applicable right of reversion, such as, for grants of exclusive rights by an individual author on or after January 1, 1978, the right of reversion set forth in 17 U.S.C. §203 of the United States Copyright Act.
VI. NEGOTIATIONS AND ACQUIRING RIGHTS
Acquiring Life Story and Audiovisual rights in literary works is usually not easy. It often takes many months and requires a great deal of energy, persistence, and patience. Expressing frustration is a sure fire way to kill any chance of putting the deal together.
VII. RECORDING EXCLUSIVE LICENSES
No one would think of purchasing a house without first assuring that a chain of title to the property is established in the courthouse. A transfer of the property is obtained in writing and that transfer is then recorded in the courthouse of the county in which the property is located. However, acquirers of exclusive licenses to literary works frequently fail to take the analogous steps provided for under the Copyright Act. This is detrimental because grants of copyrights and exclusive rights in copyrights are not valid unless they are in writing, and are subject to loss due to bankruptcy of the grantor or unscrupulous conduct of the grantor who resells the rights (even though the acquirer would have a right to sue such unscrupulous grantor for damages) if the grant is not recorded in the U.S. Copyright Office. The copyright of the original author should be registered in the name of the original author and each grant of an assignment or exclusive license should be recorded. Rather than record the entire agreement, the parties will often sign a short form exclusive license that sets forth the terms of the license to be recorded. This maintains the confidentiality of the overall deal while still meeting the requirements of the Copyright Act.
Life story and audiovisual rights in literary works can be extremely valuable, especially for a new Filmmaker. Acquiring such rights can mean the difference between having an idea stolen and making one’s own film or program. These rights can also increase the chances that the Filmmaker can obtain distribution of his or her film or proposed program.
© 2003 Rob Hassett, All Rights Reserved.
 The writer wishes to thank Laura Hassett for her help in preparing this paper.
The information above is provided for general educational purposes and not as legal advice. Laws in areas in which we practice change continually and also vary from jurisdiction to jurisdiction. Therefore no visitor to our site should rely on any of the articles provided for legal advice, but should always consult their own attorney regarding legal matters.