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Do I need to obtain a release from every living person I wish to write about from a real event in history?

By Robert L. Seigel

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Question: I would like to write about a real event in history in which some of the people involved are still alive today. Do I need to obtain a release from every living person in order to use their name in the story? Or do I not need to worry about this for a spec and leave that to the studio's legal team once my script is sold? Or.. would you simply advise me to change the names of all the characters and prelude the script with "based on true events"?

Your question is one of the most problematical ones to analyze since many issues pop up throughout any discussion of real life events and attempts to fictionalize them in film, television or books. First off, when refer to "a real event in history," I am assuming that it is some form of a public event or an event that has been covered in other media such as a trial, an accident or a murder. If it is a private event that occurred sometime in the past, there is a greater need to obtain releases or permissions from living persons. I state "living" persons since one cannot defame or invade the privacy of a dead person. Those claims die with them.

There may be a right of publicity but that is usually trumped by First Amendment considerations in films, television and other media unless you are creating items or services to sell with one’s name, likeness or voice such as clothing. If your event was covered by the media and you solely take the facts from the event, then permissions would not be necessary in most cases. However, if you are using the expression of an author/creator or information that cannot be obtained from more than other than the author/creator, you may have to option and eventually secure the rights to that author’s/creator’s work such as a book or a newspaper or magazine article.

Back to the living people. If a living person has become a public figure through his or her own efforts and circumstances, there is a lower threshold for defamation or invasion of privacy claims than if a person is a non-celebrity or public figure who is not injecting himself into the public light. This often occurs with the friends and relatives of people who are in the public eye. You should get releases from them especially or de-emphasize their role in your story. Try to depict them in a neutral to positive light and only when they are relevant to the noted event.

Blogs and gossip aside, you should bear in mind that public figures have private lives with facts that are not disclosed or known to the public and which may lead to a possible invasion of privacy claim.

On a practical level, you can write a spec script concerning the event without getting the appropriate releases but you are possibly lowering the marketability of the project for an independent producer who will have to secure the services of an attorney to "vet" the script at an early stage to determine whether he or she should take on the project. (The producer will have to have this "vetting" process done anyway in order to secure what is called "errors and omissions" insurance in case someone brings a claim against the producer, the project’s distributor and even you as the author/creator). In a possible best case scenario, if you have a script and an agreement with a principal for their life story rights then obviously you have more leverage in dealing with a producer, network or studio.

You can change the names of the script’s characters and alter the events and then perhaps pitch your project as "inspired on a true story" as opposed to "based on a true story." However, please bear in mind if you just change the names, the subject may be recognizable nationally or even on a regional basis. You should discuss with your attorney whether the value of having the "true story" marketing hook justifies the possible liability issues that may arise.

This is just a brief and general discussion and a guide. Therefore, it is important to consult with an entertainment/media attorney so that any legal analysis can be done based on the specific circumstances of your situation.

About Robert L. Seigel

Robert L. Seigel ([email protected]) is a NYC entertainment attorney and a partner in the Cowan DeBaets Abrahams & Sheppard LLP law firm which specializes in the representation of clients in the entertainment and media areas.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Screenwriting Article by Robert L. Seigel

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