Chapter 4: Personal Rights

by Michael C. Donaldson

People have rights, too! In the third decade after George Orwell's 1984-which was supposed to have been the watershed for dehumanization-legal protections for individual rights and the number of rights that are protected seem to be on the rise. Just because you have the right to use a photo does not necessarily mean you have the right to use the likeness of the person depicted in the photograph. That is a separate permission that you must acquire separately. The right to use a film or video clip does not necessarily give you permission to use the likeness of the person(s) appearing in the clip. You may also have to get the permission of the people who are recognizable in the clip to use the clip itself.

RIGHTS OF PEOPLE

Personal rights are the rights held by individuals. Generally, they were created by the courts based on the writings of legal scholars. Most states have legislated them into existence. These rights are based on the notion that every person has the right to control the way they are presented in public, unless they have placed themselves in the public eye or are participants in matters of public interest. Even then, individuals have the right to insist on accuracy and the right to prevent the commercial exploitation of their names or likenesses.

Fictional films usually do not run afoul of the rules about the rights of publicity and privacy, unless they identify a real person in their films. That is why script-clearance procedures are so important. Through those procedures, you learn if you are inadvertently identifying a living person, and, if you are, you can change the name of the character before you start shooting. See Chapter 14 to learn more about script clearance.

Producers of fact-based films-such as documentaries, biopics (biographical motion pictures based on the life of a famous person, living or dead), or historical films-need to be very aware of the rights of individuals.

Right of Privacy

The Right of Privacy is an individual's right to be left alone. This is the personal right that a filmmaker is most likely to invade innocently. Intent is not considered by courts in this case. It doesn't matter who you were aiming at, it only matters who you hit. If you violate someone's right of privacy, your innocent state of mind is of no help in avoiding liability. It may reduce what you owe, but you will still owe something.

The Right of Privacy can take several forms. For your purposes, it covers several traditional items: You cannot "out" someone in any way. You cannot reveal the private facts of someone's life. You cannot intrude into someone's private space in the course of your filmmaking. These activities invade someone's right of privacy.

Everyone has a bubble of privacy around them. That privacy bubble can be burst in various ways. One is the disclosure of private facts. Not lies. Not distortions. Facts. These private facts, however, must be of a kind that, when disclosed without permission, would be highly offensive to a hypothetical ordinary and reasonable person -you know, the kind that exists nowhere except in the minds of judges and the high-priced lawyers who try to persuade them. There is no interest in "protecting any shrinking soul who is abnormally sensitive about such publicity."

So I went in search of the cases that could show us fact situations that did and did not qualify as "highly offensive" (not just slightly offensive) to the masters of our litigation fates. I think I have a feel for what some judges are thinking, but I offer no guarantees-and there is no clear and simple way to describe the definitional watershed. Probably the simplest way to express the demarcation of "offensive" is to say that you should be highly sensitive to religion, sex, and politics, that is, views on matters of social importance. Why? Because that is where normal people are sensitive and that is where lawsuits are spawned and that is where filmmakers most commonly lose.

Since the right of privacy protection slams hard into the First Amendment right of free speech, free press, and the public's right to know, there is a well known exception: If the matter is of public interest, you can reveal it. There is something intuitive about all of this. If a congressman is diddling an intern, that is of public interest and can be mentioned, even though an office affair between consenting adults in a nongovernmental workplace would probably not be fair game. In practice, the courts have stripped elected officials of virtually all of their privacy rights based on the public's right to know.

Crimes are always reportable. However, the California Supreme Court has explicitly held an exception to that for stories about former criminals who have long been rehabilitated and are living a life of quiet obscurity. The U.S. Supreme Court said something very similar: "The ordinary citizen surely has a similar privacy interest in the aspects of his or her criminal history that may have been wholly forgotten."

An Illinois federal court reached a contrary result in a case in which all of the facts that were revealed were in the public court records.

Producers of documentaries and magazine shows on television are most likely to run afoul of someone's right of privacy, but the producer of a fictional film could do the same thing in a two-step process. First, someone is convinced (and their friends and family are convinced) that a certain character in a film is really them and, second, that the movie reveals private facts about them. The most common problems come up in movies that are admittedly based on films that were based on true-life stories.

The best way to avoid accidentally tripping over the right of privacy is to obtain a Script Clearance Report. The companies that prepare such reports check out names and locations against real people and places in the area of your film's setting. If you cannot afford such a report, then go through your script yourself and see if a normal viewer could reasonably identify a real person based on the information they observe in your film. If you are shooting in a fictional store in Queens, pick up the phone book and see if an establishment exists by the same name anywhere around the New York area. Better yet, seek out generic names for use in your film. Don't give your characters full names when using a first name only would do. Details, such as both a first and last name, are rarely essential to cinematic storytelling, and if handled improperly, they can get you into trouble.

This is an area where you must exercise extreme care. Frederick Wiseman, the well-known, award-winning documentary director, ran into a brick wall at the beginning of his career. The court enjoined his masterpiece film Titicut Follies from being commercially exhibited for thirty years. When a court enjoins something, it issues an order for people not to do a certain thing-in this case, Wiseman was stopped from commercially exhibiting Titicut Follies. Few people saw it after its initial public screenings because of flawed releases. Well, that was the official reason. There is a whole book on the litigation alone.

The film depicted the inner workings of a Massachusetts hospital for the criminally insane. The head of the hospital signed on behalf of the hospital and on behalf of most of the patients depicted. The hospital administration liked the film when they screened it privately, but when they showed it publicly, an understandable outcry followed. The emotionally brutal treatment depicted in the film was very different from what the public expected.

The state arranged for legal guardians for some of the patients, enabling them to sue on the grounds that the hospital did not have authority to waive the patients' rights of privacy. The result of the lawsuit was technically correct. The film languished, virtually unseen, on the shelf until the last patient went to the grave with the right to privacy well intact. Since those rights die with a person, the film can now be seen more widely. Wiseman now gets all of his releases on audio tape, usually at the end of the interview.

Right of Publicity

Professor J. Thomas McCarthy, a leading authority in the use of name and likeness, succinctly defines an individual's Right of Publicity as the inherent right of everyone to control the commercial use of his/ her identity. In his book, he says, "The right of privacy protects the soul. The right of publicity protects the pocket book." The right of publicity has to do with using someone's face or name to sell your product without permission to use that particular face or name. Be sure that you have permissions for all the things you use in your advertising. In the body of your film, you have every right to accurately portray a public figure, but in advertising your film, be very sure that you have written permission to use every name and likeness that appears in the advertisements.

The rule is: "You have to pay up before you put someone's mug on a coffee mug and try to sell it to the public." The same thing goes for your movie poster. That is the bottom line. Professor McCarthy's treatise (mentioned above) is over a thousand pages with cases and history and theory and explanation. All you need to know is that different rules apply to the advertisements for your film than apply to the content of your film. No matter what, you need permission before you use someone's name or likeness in your movie poster or other advertising.

Misuse of a star's name and likeness has produced much litigation in what are called pre-sales. Pre-sales refers to selling the right to distribute a film in a certain territory before the film is complete- usually before filming has even started. That is one of the main activities at the film market that takes place during the Cannes Film Festival held in France during May of each year and the American Film Market (now shortened to AFM) held in February in Santa Monica, California, and MIFED held in the fall in Milan, Italy. If you pursue your dream of being an independent producer, you will be spending a lot of time at these markets, because this is where a lot of production financing is arranged and is completed when films are sold.

As you wander around these markets, you will see many posters for films that have not been shot. The producers are trying to raise the money for these productions through pre-sales. The posters, however, can only list a name if you have written permission from the actual actor-not from his or her agent or lawyer.

If you do not have written permission to include someone's name in the publicity for your picture, you are on safe ground to include a factual statement about the involvement of a certain person in the production of your picture. You can say: "So and so directed the film." The more you include in addition to a simple factual statement, the more it looks like you are using the person's name to help sell your film, which, of course, you are. As your press release talks more and more about a person, it moves along a spectrum of safety from the very safe simple statement to the unsafe area of invasion of the right of publicity.

In negotiating the permission to use an actor's likeness on a poster, you will generally run into a request for approval over the likeness by the person you are negotiating with. Try to limit the approval right by requiring the actor to approve at least 50% of the likenesses within a fairly short period of time. Only the biggest stars are entitled to 100% approval over their likeness, and only the biggest stars have more than three or four days to give that approval. Also, approval should be deemed given after the third batch of photos is sent. The actor should not be allowed to unreasonably extend his or her legitimate request for an approval right to trump your need to advertise your picture. There is no extra charge for the right to advertise someone in your picture-the cost is wrapped into the overall cost of the services to be rendered.

The negotiation on the use of a name in advertising comes in the credit paragraph of a contract struck with just about everybody who will work on your picture. The toughest name-use negotiations are always with the above-the-line personnel. Above-the-line personnel are the key creative elements of a picture and the key financiers. These generally include all producers, lead actors, the director, and the writer. The issues most commonly encountered in name use in advertising are placement, prominence, and appearance in the main titles of the motion picture and in all paid advertising for the picture, except congratulatory ads and award campaigns. It is a little easier going with the below-the-line personnel. Below-the-line personnel include everybody who isn't above-the-line personnel: the crew, non-star actors, suppliers, and licensors. There the credit provision is usually the assurance of appearance in the end roll credit on all positive prints of the picture. These people's names usually do not appear in paid ads. The actual line that separates above-the-line from below-the-line personnel is a line across the page of the budget that separates the budget into two parts. The bottom part for other cast, crew, locations, equipment, and suppliers is fairly stable and predictable. The cost of the major talent and the script in the top part is subject to heavy negotiation and escalation, depending on whom you are able to attract to your project.

Usually an entirely separate paragraph dealing with publicity will appear in your contracts with the writer and the director and lead cast members. It sets out when the person must be mentioned in publicity and sets forth some restrictions on the artist issuing their own publicity. These restrictions are particularly important in the early stages of the project. The producer must maintain some degree of control so that word does not go out into the world before the producer is assured that all the elements are lined up. Sometimes a sensitive negotiation can be sidetracked by premature publicity about a picture-especially premature publicity that identifies attached creative elements before their attachment has been firmly cemented with a contract.

Note that the right of publicity is in the nature of a property right. Every citizen has it whether they are a celebrity or not. Obviously, it is a right that is more relevant and comes up more often in the life of the rich and famous than in the lives of the rest of us, but the right of publicity is a right that we all have. We all have the right to control the commercial exploitation of our name and likeness.

Many states have passed laws to protect one's right of publicity. However, it is the courts, not the legislatures, that have created most of the law in this area. You, of course, must be guided by the most protective state in the union.

Because the right of publicity is a property right, it lives past an individual's death and may be passed on to one's heirs. In contrast, the invasion of the right of privacy and false light and defamation are personal rights, so the injury is personal and dies with the person. You can't defame a dead man, but you can violate a dead man's right of publicity. In fact, all the state laws dealing with the right of publicity make it clear that the right can be left in a will and that the right lasts for a long time after death. Most of the statutes provide for terms that are 50 to 70 years in length after death.

SOUNDALIKES AND LOOKALIKES

Sometimes you cannot sign up the performer you want, so you are tempted to hire someone who sounds like or looks like the person you wanted to hire in the first place. They are called soundalikes and lookalikes. Not a good idea. Unless you are scrupulously accurate and forthcoming about the fact that you are using a soundalike or a lookalike, you are in trouble. Given the high cost of litigation, a good rule to follow is, "When in doubt, don't."

Don't think that you can skirt around these problems by invading someone's right to publicity with less than a picture and name splashed all over the place. Sometimes, the use of a distinctive voice, such as the one owned by Bette Midler or Tom Waites, is sufficient to identify the performer, even if an imitator supplies the voice. This is especially true in the context of advertising. Waites recovered $200,000 from Frito-Lay when it used someone who sounded so much like him that everyone thought it was him, even though he had always been very outspoken about not endorsing products. Soundalikes and lookalikes are of no help to you if you are using them to trick the public into thinking that you have the endorsement or the backing of a celebrity when you don't really have their backing.

Those whom the courts have punished for using soundalikes or lookalikes have really crossed the line. Take the Bette Midler case. The advertising agency for the Ford Motor Company really wanted Bette Midler to sing their song for a commercial. Midler did not want to do it. So they hired one of her former backup singers and paid her to sing as much like Bette Midler as she could. Having shared the stage with Midler for many years, she came very close. The advertising agency was happy. Ford was ecstatic. The public was confused. We all thought that Bette Midler was singing the Ford song. That little bit of intentional deception cost Ford and its ad agency a bundle. And rightly so. Honesty, accuracy, and disclosure are the guideposts to staying out of trouble, especially when dealing with rights of people.

I have warned you not to ask unless you are sure that you need the permission that you are seeking. Nowhere is this advice more important than in the area of using soundalikes and lookalikes. The reason is that an early inquiry is a tangible piece of evidence that, at the inception of the project, you wanted the star. It is easy for a jury to believe that when you did not get the star, you hired a cheap substitute.

When your purpose is to save money and you cannot get the star you want, go in a different direction altogether-do not try to fool folks. It's not nice, and it can be much more expensive than hiring the star in the first place. It is certainly more expensive than going in an entirely different direction. Don't you really think that they could have sold just as many Fords with another campaign or another talent in the campaign they did run?

Even political figures, who have virtually no privacy rights, have publicity rights. You cannot imply a commercial endorsement of your product or film by a political figure without the permission of the political figure. Speech and comment about political figures are among the most protected areas of free speech as long as there is no endorsement of a product implied.

DEFAMATION: LIBEL AND SLANDER

Defamation is the publication of anything false which is injurious to the reputation of another or which tends to bring them disrepute. A defamation designed to be read is libel. An oral defamation is slander.

Growing up, we all learned that it is not nice to tell lies. When the lies are about other people, they can cost you big bucks.

As a filmmaker, libel and slander issues do not come up often unless you are making a documentary or a biopic, or some other type of film that is offered up as a truthful version of the facts. Television movies often wander into this territory.

If you are offering your film as truthful, you want to have double sourcing on everything. Double sourcing simply means that you have two separate and independent sources for each factual assertion in your script. This is especially important for anything that might offend anyone, but especially the subject of the remark or representation. The second source should be truly independent of the first source. For instance, two different newspaper articles written from the same press conference or press release is not really a double source. The same fact verified by a second person not at the press conference would be a double source.

False Light

It used to be that the law only punished lies that damaged a person. Clint Eastwood fought one of his many battles with one of the grocery-store tabloids. The Star reported that he was romantically linked with someone other than the woman he had been involved with for many years. It was untrue. Everyone in Clint's life knew that it was untrue. On the face of it, this created a "no harm, no foul" situation. Clint felt deeply wronged by this false report.

He sued.

He won.

The courts created a new tort called false light. False light means that the statements were not true and caused some harm or embarrassment to Eastwood. In this situation, he was falsely reported to be dating someone else. Because he was a public figure, the court said that he had to show that there was gross negligence in their reporting of the situation. The rest of us only have to prove ordinary negligence.

Even if you are making a documentary and you accurately depict a person in context, you can still put them in false light in the editing room. Consider Michael Moore, whose Roger & Me offered many a good laugh. Unfortunately, some of those laughs were at the expense of certain persons who thought that the humor came from putting them in a false light. Remember the scene shot at the Great Gatsby Garden Party? One guest came off as an arch-conservative, insensitive to the evicted. In actuality, he was the liberal chairman of the Democratic Central Committee and had helped Michael in the past.

He sued.

The jury agreed with him. The jury found that Michael Moore had put the plaintiff in a false light. Michael didn't feel the need to obtain a formal release to use the man in the documentary because the man knew Michael, knew about the documentary, and consented to be in it. Everything would have been fine, but the way the film was edited put this man in a false light. Michael needs all the protective language he can get to protect against false light claims.

Defenses to Defamation and False Light

There are a number of common defenses to a suit for defamation. None of them is as good as never getting sued in the first place. Be careful when you make statements about individuals who are living and identifiable.

Truth: This is the classic defense. Everybody seems to know that truth is a defense. Even if a statement is not completely true, you should win with a public figure if you have checked the facts out and you have a reasonable basis for believing they are true. Unfortunately for you, reasonable people may differ on what amounts to a reasonable basis for believing anything. Check the facts carefully. Double source any dubious or inflammatory claims.

Opinion: Everybody has a right to their opinion. If you are stating an opinion, make it very clear that it is an opinion. "Jack is a thief" is libelous. "I don't trust Jack" is an opinion. This can be tricky. The courts don't let you off the hook with merely a perfunctory statement such as "It is my opinion that . . ." and then go on with a string of libelous statements. It must be clear to the reasonable listener that the statement is an opinion, not a fact.

Humor: Humor is a defense because, if everyone hears a comment as a joke, you have not damaged the reputation of whatever or whomever is the butt of your joke. However, there is a big difference between something that draws laughs or chuckles from most listeners and something that insults someone and, upon realizing that your words insult the person, you say, "It was only a joke" or "I was only kidding."

In some ways, humor as a defense is a variation on the opinion defense. In both cases, you are not stating a fact and you do not want your statement taken as factual.

THE VERBAL RELEASE

Here is the good news for documentarians. You can obtain valid and binding verbal releases on film. The key is to make sure that the subjects give a full and informed release. While the camera is rolling, tell the subject of your interview that you are making a documentary film. Tell them what it is going to be about. Then explain that with documentaries, you never know how they are going to be distributed, but television, videocassettes, and libraries are the most obvious and likely methods of distribution. Let the person know that you will try to enter the film in film festivals, and if you are successful, there is a chance for a theatrical release. (Don't forget to tell your subject that you may sell clips from your documentary for use on news programs or in other documentaries.) This explanation takes time, but if the interview continues-as it usually will-you have recorded a valid release by the person's continued participation after your careful explanation.

Lily Tomlin learned this the hard way. She allowed documentary filmmakers to prepare a documentary about her Broadway show, The Search for Signs of Intelligent Life in the Universe. Tomlin allowed the crew back stage during rehearsals building to opening night. Tomlin did not ask that they leave or turn off their cameras when tensions were high and some participants revealed more of themselves than they intended.

Tomlin hated the result. She tried to stop distribution of the film on the grounds that she never signed a release and neither did any of the people around her. The court watched a good portion of film in which Ms. Tomlin and everyone involved in the show acknowledged that they were being filmed for a documentary. No objections were made when they thought a flattering portrait was being prepared, and no objections were made even at less flattering times. The court said that if they wanted to retain approval rights, they should have spoken up at some time during the process. The court felt common sense dictated that was too late to complain after the film was finished and ready to be sent out into the world.

Read Chapter 3