Vondran Legal® - California Entertainment Law: "Life Rights" Agreements: What You Need to Know Call us at (877) 276-5084.
If you are a TV, movie, or video producer and you want to make a movie about a real person, dead or alive, you might want to consider trying to secure a "life rights" agreement from the person who is the subject of the media or their estate if it holds the rights (ex. a post mortem right of publicity in California). However, there are pros and cons, and sometimes it is not an easy decision to go for the contract or just rely on first amendment rights to tell and protray factual stories and events.
Benefits of having a life rights agreement
Here are a few benefits of having a life rights agreement from the proper rights holder:
- You can usually get them to cooperate with you, which can give you potential access to a rich treasure trove of notes, photographs, journal and dairy entries, old films and newspaper clippings that you might not be aware of. By having the rights holder cooperate with you via an agreement, you could theoretically make your project much more interesting and entertaining.
- You can get an agreement of covenant not to sue you (meaning, you can have wide latitude to make the film without worrying about right of publicity lawsuits, defamation, invasion of privacy, or false light claims).
- Movie distributors may be more willing to distribute your film, knowing there is no legal recourse from the rights holder.
- This could help drop your insurance rates for media liability insurance.
- You can request "exclusive rights," and the rights holder will not work with any other producer, which can help you maintain a competitive advantage in the marketplace.
- The rights holder may participate in marketing and advertising that may help promote the creative work
These are some of the main reasons to consider getting a life rights agreement before moving forward with your film, video, or movie production. However, trying to get these rights may run into problems. For example:
- It is hard to contact the rights holder and time-consuming
- The rights holder wants too much money to give you the rights
- The rights holder may want creative rights to agree or not to agree to certain things (this can hamper your creative independence)
- They may be difficult to work with from a personality perspective (ex. argumentative, impatient, non-responsive, etc.).
This makes it tempting to proceed without obtaining a life rights contract. After all, in most cases, a true and honest story about a person's life and events is generally protected by the First Amendment (discuss this with your entertainment counsel).
What if you don't want to risk rejection?
If you don't want to risk it, it makes even more sense to engage entertainment counsel to guide you through your project and help you avoid claims such as:
- Defamation (libel)
- False light
- Invasion of privacy
- Violation of Right of Publicity (check your state laws, e.g., California Civil Code 3344 or common law right of publicity)
- Trademark disputes
- Public disclosure of private facts or private affairs
- Intentional infliction of emotional distress
- Copyright infringement (ex. fair use or public domain fails)
Remember, when you go to get media liability insurance, they will ask you if you ever requested permission and were denied. If so, you would need to disclose this, and this could be excluded from an insurance policy.
Learn more about California Right of Publicity Claims, which allow for postmortem rights in California for both celebrities and non-celebrities alike.
California Statutory Right of Publicity, Civil Code Section 3344
Here is what the code says (remember, there is also a "common law right of publicity").
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
(b) As used in this section, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.
(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.
(2) If the photograph includes more than one person so identifiable, then the person or persons complaining of the use shall be represented as individuals rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.
(3) A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.
(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee's photograph or likeness.
(d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).
(e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).
(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person's name, voice, signature, photograph, or likeness as prohibited by this section.
(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.
Exceptions to liability under California Right of Publicity Law - The First Amendment
The First Amendment also limits rights of publicity. See Daly v. Viacom, 238 F. Supp. 2d. 1118, 1123 (N.D. Cal. 2002). Here, the court held:
"Similarly, to assert a common law cause of action for commercial misappropriation, plaintiff must plead:
(1) the defendant's use of the plaintiff's identity;
(2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise;
(3) lack of consent;
(4) resulting injury." See Downing v. Abercrombie Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) (citing Eastwood v. Superior Court, 149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342 (1983)).
As with the statutory cause of action, a defense under the First Amendment is provided where the publication or dissemination of matters is "in the public interest." See Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639 (1995)
("[N]o cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it."). Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1122 (N.D. Cal. 2002)
Under the First Amendment, a cause of action for appropriation of another's "name and likeness may not be maintained" against "expressive works, whether factual or fictional." See Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 871-72, 160 Cal.Rptr. 352, 603 P.2d 454 (1979) (Bird, J. concurring); Comedy III Prod., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 398, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001) (holding expressive works do not loose "constitutional protections because they are for purposes of entertaining rather than informing").
"Whether the publication involved was factual and biographical or fictional," privacy rights have "not been held to outweigh the value of free expression." See Guglielmi, 25 Cal.3d at 871-72, 160 Cal.Rptr. 352, 603 P.2d 454 (holding First Amendment barred claims based on use of Rudolph Valentino's name and likeness in fictional television program).
"[E]ntertainment is entitled to the same constitutional protection as the exposition of ideas." See id. at 867, 160 Cal.Rptr. 352, 603 P.2d 454; Comedy III Prod., 25 Cal.4th at 398, 106 Cal.Rptr.2d 126, 21 P.3d 797. Likewise, advertisements of expressive works are not actionable where the advertisements are "merely an adjunct of the protected [work] and promote only the protected [work]." See Cher v. Forum Int'l Inc., 692 F.2d 634, 639 (9th Cir. 1982); Guglielmi, 25 Cal.3d at 871-72, 160 Cal.Rptr. 352, 603 P.2d 454 (holding advertisement not actionable where advertisement "was merely an adjunct to the exhibition of the film" and did "not . . . promote anything but the film").
Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1122 (N.D. Cal. 2002)
Moreover, the California statute itself contains exceptions for uses related to news, public affairs, sports, and politics. Courts often focus on this statutory safe harbor, instead of the First Amendment directly, when confronting statutory right-of-publicity claims. See, e.g., Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 415-17 (Cal. Ct. App. 2001).
The First Amendment is more often directly relevant in common law right of publicity cases, since there is no statutory safe harbor. But since cases often involve both common law and statutory claims, the First Amendment analyses often cover both the statute and the common law. For example, in Daly v. Viacom, the court ruled that use of the plaintiff's likeness in advertisements for a television show, using footage from the show in which the plaintiff appeared, was protected as part of an expressive work. That case involved both common law and statutory claims.
The 9th Circuit has suggested that cases involving "noncommercial" uses (meaning, the use contains some expression and does not "simply advance a commercial message") receive heightened First Amendment scrutiny. If the plaintiff is a public figure, he/she "can recover damages for noncommercial speech from a media organization . . . only by proving 'actual malice' " in so far as the noncommercial use was "intended to create [a] false impression in the minds of [the] readers." Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186-87 (9th Cir. 2001). The full extent of the "actual malice" standard's applicability in right of publicity cases remains unclear, however.
So, in summary, if you receive a cease and desist letter or demand letter seeking monetary damages and attorney fees, make sure to consult an entertainment lawyer who can evaluate your claim for First Amendment protections.
Typical clauses to consider having in your life rights contract
If you decide to move forward with a life rights agreement, here are some typical deal points to consider:
- Will the rights be exclusive (or non-exclusive, allowing others to make similar life stories or biographies)?
- What will the enumeration be?
- Will the rights holder maintain any creative control over the project?
- Content and source contributions: will the rights holder be forced to supply photographs, video clips, diary or journal entries, memorabilia, interviews, emails, text messages, letters or other source content for the project?
- Territorial rights?
- Duration of agreement
- Rights to fictionalize?
- Release of all claims, including moral rights?
- Will the rights holder participate in advertising, marketing, and promotion?
- Rights in final product
These are some of the common terms to think about.
Contact a California Entertainment Law Firm
We have offices in Newport Beach, Santa Monica, and San Francisco, California. We have helped a wide variety of clients in various entertainment legal matters since our founding in 2004. This includes copyright, trademark, and right of publicity litigation.
Call us at (877) 276-5084 or fill out our contact form, and we will contact you.