Am I allowed to write a movie (or book or article) about you without your permission?
Unequivocally and without hesitation the answer is: maybe.
At the time of this writing, a former television reality show host and NY real estate developer has held the office of President of the United States for nearly a year. There are oodles of books written about Donald Trump. He may have — or he may not have — at one point or another signed a life rights contract awarding a particular biographer permission to write his life story.
Rest assured, however, that the vast majority (if not all) books about Trump were written without his authorization.
Even since the election, the United States is still (mostly) a free nation whose liberty is underscored first and foremost by this annoying, pesky item called The Constitution and, particularly, its First Amendment.
It’s no accident that the First Amendment is just that: the amendment that comes first.
Various people, many among them experts, have said that the Amendment is not clear regarding the sort of expression that is allowed. Does it require us to tolerate, for example, Nazi propaganda, racism, sexism, and religious bigotry?
I’m not a lawyer; I don’t even play one on TV.
Nevertheless, I can tell you this: the First Amendment is not foggy regarding the issue but, instead, crystal clear. It holds that expression spoken, printed, or written, does not have to be fair, balanced, rational, intelligent, or anything else.
It just has to be tolerated.
The burden is not on the speaker or the writer but the listener or reader. It is not the creator of the expression who is burdened by the Amendment but the receiver, the observer.
The question inevitably arises: In writing the First Amendment did the framers of the Constitution mean for it to allow, say, violent pornography?
The short answer: Yes.
No one has to protect your right to say “Have a nice day,” or “Our legislators are doing a great job.” It’s the provocative stuff, the jerky, stupid, ugly stuff that requires protection.
If you can’t countenance caustic, corrosive criticisms of the country, there are nations around the planet that you might enjoy, for example, North Korea or Saudi Arabia. Listening to the radio or watching TV or movies there will never offend you with sexuality, violence, and naughty language. Nothing in the media will ever cause you awkwardness or discomfort.
Is that the kind of country where you’d like to live?
The First Amendment pretty much guarantees Americans the right to write anything about anybody without acquiring anyone’s authorization – not even that of the subject.
This does not mean, however, that the subjects do not have the right to sue. The right to free expression doesn’t mean writers can’t be held accountable for material we write if it knowingly, maliciously, and with reckless disregard for the truth creates fictions that are measurably, verifiably harmful to the real-life subject.
The bar for establishing in court such violations is properly higher for subjects deemed to be ‘public figures.’ There are two reasons for this. First, there is an understandable reluctance on the part of a democratic society to limit free and open discussion of its leaders, its public business, its governance. There is potential for far greater harm to be caused by telling lies about, say, my professional tax-preparer neighbor across the street than, say, Barack Obama.
Additionally, thanks to the nature of their celebrity status, public figures have greater access to the media in order to ‘correct’ misstatements and misimpressions offered by writers of article and books and makers of films about them.
Do you need permission, that is, a signed life rights contract, to make a movie about, say, Ray Charles or Bob Fosse?
The answer again: yes and no.
No, first of all, because of that nagging, annoying First Amendment, and doubly so, because these people’s stature renders them public figures.
Even so, I strongly expect that when their bio pictures were produced both the Ray Charles estate and Bob Fosse were offered life rights contacts.
A life rights contract may run dozens, scores, even hundreds of pages. All that really matters in it, however, is a concise statement somewhere in the document stating that the subject of the film relinquishes his/her right to litigate.
The threat of litigation, even suits that are on their face specious and spurious, is enough to cause film investors to worry that there will be costly court action. The estate of Ray Charles, for instance, as well as someone so successful as Bob Fosse, can threaten all sorts of nuisance litigation that may well delay a production. Such circumstances may militate against the film’s chances of being produced.
That’s why creators of such movie fare will go to the trouble and expense of securing life rights for a film bio, even if they’re essentially not required to do so. The subjects will accept a certain amount of money—it’s negotiable—in return for promising not to sue.
The takeaway for screenwriters?
As I’ve argued elsewhere, writers can do what no one else in the movie family can do: create a work that belongs solely to them. Directors and agents and producers and actors and costumers and hair-and-makeup artists can’t do that.
That’s why it is the only thing that writers should do.
We should avoid subjects where there are rights issues, what lawyers call ‘encumbrances’ and ‘entanglements.’ We should create clear, unfettered new copyrights based upon material we created on our own, wholly from scratch.
Richard Walter is a screenwriter, author of best selling fiction and nonfiction, celebrated storytelling educator, associate dean, entertainment industry expert and longtime professor and chairman of the graduate screenwriting program at the UCLA School of Theater, Film and Television. In February 2018, Professor Walter will offer an exclusive online 6-week course. Here is a once-in-a-lifetime opportunity to train with the world’s most accomplished screenwriting educator. And, he’ll read your script if you complete it within 1 month of the class! Reserve your seat at http://richardwalter.com/workshop/. To join Richard Walter’s email newsletter list email him at firstname.lastname@example.org.