Docudramas

There should be confirmation that the applicant's attorney has obtained a completely annotated screenplay from the writer, with the annotations showing essentially on a line by line basis; whether a particular dialogue and test is completely accurate, is presumed to be accurate, but with words fictionalized or, is author created incident or test; Each notation should be keyed back to underlying factual works such as the specific pages of newspaper stories, books, articles, etc. The more sensitive the particular scene or statement, the more important it is that there be substantial backup including multiple sources.

The applicant's attorneys will have to be thoroughly familiar with all of the events and occurrences which are reflected in the screenplay, so that the attorneys will be able to spot if particular sources upon which the author relies are reliable or are totally contradicted by the sources. If there is a conflict between sources the applicant's attorneys should so advise us in their written analysis.

Since a docudrama names name's and supposedly what actually occurred, any fictional material incorporated in the screenplay must be of the "let's go get a cup of coffee" variety which does not reflect incidence and occurrences which in fact, did not happen or does not alter what happened, but merely explains and lightly dramatizes what the record will support. Any of the author created material, even if it meets the above criteria, must of course be carefully prepared so as to avoid placing an individual in a worse light than in completely supported by the factual backup material. The analysis furnished to us by the applicant's attorney should make it clear that all the foregoing has been accomplished.

The applicant's attorneys should advise us whether there are any composite or fictional characters and if so, what steps have been taken to make sure there is no conceivable basis for a claim of accidental identification. This process in many ways is similar to what we will discuss below in connection with fictional works inspired by the fact. We can assume that in addition to thoroughly reviewing the factual material and the screenplay along the lines discussed above, the applicant/s attorneys will also require that the services of an outside research entity such as Kellam DeForest be secured in connection with the project. Such entities may spot problems not known to the attorneys themselves. The applicant's attorney's analysis should state what the outside research entity has done and what its conclusions are. The applicant's attorneys should advise us of their opinion concerning the reliability of the various sources upon which the annotations rely.

We should be told if there are numerous sources for most of the material in the screenplay and if there is only one source, of course, we want to know that also. The law generally seems to be moving in the area of permitting the use of facts taken from a copyrighted work in another work without the permission of the copyright proprietor of the work from which the facts were taken. However, we're not sure the law is quite as broad as we've stated, at least in every part of the United States. Accordingly, if licenses have not bee obtained from the copyright proprietors of works which are the unique source of particular facts, they want to know this so that they can evaluate whether there's going to be a particular copyright problems. We should emphasize that the above analysis does not mean to exclude the rest of our normal clearance procedures. These, of course, will be followed. Furthermore, the above is quite general and the information which we will require from the applicant's attorneys is very dependent upon the nature of the particular project.

FICTIONAL WORKS INSPIRED BY FACT

As difficult as it is to state general rules for what we want to know about a docudrama, it's even more difficult when you get into this genre of work. The difficulty arises because the factual germ incorporated in the screenplay may vary from one extreme, which is close to a docudrama, to the other extreme in which the event which inspired the author was so generalized and so unspecific that there is no more problem with this particular category than with almost any other work of fiction. Certain events are so notorious that any use of them will easily give rise to identification of particular individuals. Thus, the story of the first recipient of an artificial heart will certainly conjure up the events surrounding the treatment and death of Dr. Barney Clark. On the other hand, a story about a high school football game, while it may have been suggested by one of the tens of thousands of high school football games that are played every year, may turn out to be so far removed from any event which anyone in the public would know about so as to fall within the category of a straight fictional work in which case the usual principles of avoiding accidental identification through the use of the DeForest reports will generally suffice.

It can be readily seen that when we're dealing with a fictional work inspired by fact it's very important for the applicant's attorneys to give us a detailed description of the plot and the setting and its relationship to the actual facts which supposedly inspired the story.

FICTIONAL WORKS INSPIRED BY FACT

The closer the fictional story is to one identifiable event, the more dangerous the situation becomes. The applicant's attorneys will have to thoroughly research the actual events so that they can be sure that the fictionalization is sufficient to eliminate any possibility of accidental identification. If the factual events which inspired this story are specific enough or well known enough so that the possibility of accidental identification is present, we will want the applicant's attorneys to provide us with a fairly thorough comparison between the plot of the screenplay and the actual events. We will expect the applicant's attorneys to detail for us all the various characters who might have living counterparts and advise us how the possibility of accidental identification has been eliminated or substantially avoided. In this regard, the applicant's attorneys should focus on characters who might be identifiable because of some particular position or relationship to the plot which such characters occupy.

Again, as in the case of docudramas the above analysis is not meant to imply that the applicant's attorneys should not fulfill all the usual clearance procedures. It is also true that what we will require in connection with any particular fictional work inspired by fact will depend upon the particular story.