The easiest, cheapest and safest way for a writer to avoid rights issues when writing a “Life Story” screenplay is to rely on publicly-disclosed information. Second choice is to base the story on a book, and acquire the rights to that book.
If these two options are not available to you then there are three dangers to be aware of:
- Invasion of privacy
- Defamation and
- Misappropriation of the Right of Publicity
These can prove to be a minefield as every country enforces these differently in their legal systems. The law (and sometimes the interpretation of the law,) regarding these rights in South Africa, is different to the law in the United Kingdom, which is different to the law in the USA, and so on. In the USA they even differ from state to state. California, for example, recognizes a continued right of publicity for deceased persons up to 70 years after they die, in other states once a person is dead you can use and abuse their story with no legal recourse for the estate, the heirs or family whatsoever.
It is preferable to avoid court and obtain the necessary rights
Although the onus will always be on the offended individual (or their representative) to sue the screenwriter or producer, and to prove the offence, it is preferable to avoid court and obtain the necessary rights in an agreement or to utilise information in the public domain to write the story. (In some cases public domain information can be embellished with privately disclosed information, where disclaimers and warranties are provided by the sources, and that will be enough for you to write your screenplay.)
Once you start negotiating rights be sure that the “Life Story” agreements at least grants you exclusive rights to the story, and the rights to any remakes, sequels, television series, merchandising, novelization, live-stage rights and radio rights. There should also be a provision in the agreement that gives you, the screenwriter, the right to elaborate, embellish, dramatize and adapt the story in any way you choose.
Keep in mind, that it is probable when you secure the rights to someone’s’ life, that you might also need the rights to their spouse, their key friends and relatives, etc. (These will likely need to be separate agreements.) It may also be prudent to include in the agreement any photographs, documents, or other media related to the life story that they are able to provide you with.
How much should you pay for the rights to a life story?
The purchase of life-story rights are usually structured as either an option or as an outright sale for a fixed fee. These are sometimes combined into one agreement.
Besides a fixed fee there are other means of compensation, the most frequently used of which is to offer the subject points, (i.e. a percentage of the net profits), profit share in merchandising, and/or bonuses which will be paid at certain milestones in the distribution process. As a writer however, you should be aware that the deal you secure prior to writing the screenplay, may preclude you from finding a producer or buyer for that screenplay. I therefore highly recommend that screenwriters do not embark on securing an agreement and writing “Life Story” screenplays without the advice and input of an interested producer.
A question I am frequently asked is; “How much should a writer pay for the rights to a life story?” The answer is both simple and complex; “How many fish are there in the water?.” Or “It depends!” Some life stories are worth more than others. The bottom line here is… the bottom line. How much money can potentially be made from dramatizing this specific story? What kind of Return on Investment (ROI) can a producer expect? Does the name of the subject attract publicity and therefore, “bums-on-seats”? As a writer if you are not sure, it is a sign that you need a producer on board. They’ll know… and negotiate the lowest possible cost.
Points of Negotiation
Some subjects may be reluctant to sign over the rights to their story, and so to sweeten the deal a writer (or producer,) could include one or all of the following in the agreement;
- An offer for the subject to act as a consultant on the production (This usually doesn’t require the producer/director to accept or act on their input)
- A restraint on the subject matter
- A constraint on the years of the life story to be depicted
- An exclusion of certain incidents
- The right to determine if the film will be billed as a true story or a dramatized narrative
“Life Story” agreements very often include a reversion clause that provides for the eventuality where if the rights are not exploited (i.e. the film is not made,) within a certain number of years, they return to the subject.
In closing the best advice I can give when talking about “Life Story” rights, is that they are almost always complicated, and it is best to utilise an experienced entertainment contract lawyer to draw up your documentation when acquiring the rights before attempting to write the screenplay.