Almost every writer in every entertainment industry has someone they find fascinating – someone they want to write about. Maybe it’s a movie star who overcame adversity and now gives back; maybe it’s an industry leader whose vision and drive have opened new possibilities; maybe it’s a promising athlete who crashed and burned under the spotlight of fame. Writers are always drawn to real stories that speak to them on a personal level.
Sometimes those writers call entertainment lawyers like me and say they need help acquiring life story rights from the person who has fascinated them. I get calls like this all the time; and when I do I usually shock those writers when I tell them the truth about life story rights.
The truth is that life story rights do not exist.
The First Amendment
The First Amendment to the U.S. Constitution provides that Congress shall make no law prohibiting free speech or the exercise thereof. Because no state can pass a law that Congress has specifically decided not to pass, no state can make a law prohibiting free speech either. Yes, there are some limits on free speech, like hate speech and yelling “Fire!” in a crowded theater. But the First Amendment guarantees the right of every writer to tell any story they choose – even the life story of someone else.
Patents protect innovations that are new, useful and non-obvious. Life stories are not eligible for protection under patent law because the concept of a life story is neither new nor non-obvious. Life stories are literally older than the Old Testament.
Copyright protects artistic expression fixed in tangible form. A life story is not fixed; it simply exists as a series of facts and events. Anyone can write down a selection taken from that series of facts and events to create a story.
But what happens when someone does write down their life story? If I write my autobiography, does that mean that no one else can write about my life? No. While no one would have the right to copy my autobiography (my story about my life), everyone is free to write their own story about my life so long as they do not copy anything I wrote.
Trademarks and service marks identify the source of goods and services used in interstate commerce. Life stories are neither goods nor services, so life stories cannot be protected by trademarks or service marks.
That’s not to say that a name can never be used as a trademark. If someone chooses to use their name to identify their goods or services, that name can be protected. Only Donna Karan can sell clothes using the name Donna Karan; however, since life stories are not goods or services, a name cannot be used to protect a life story under trademark law.
While trademarks do not protect life story rights, there is a section of the trademark law that does impact writers telling someone else’s life story. Section 43(a) of the trademark law allows someone to sue a writer if that writer creates the false impression that the writer was authorized to write that person’s life story. To be clear, the writer can still write the story, the writer just can’t make people believe that the writer had permission.
Since there is no federal law that gives people ownership of their life stories, the states are not allowed to pass a law that gives people that right. However, the states can and do pass laws that affect the way writers can tell someone else’s life story, and how they can advertise what they have written.
Some states recognize the right of a celebrity in their public persona. Performers Bette Midler and Tom Waits have successfully sued when commercials were produced using singers who sounded like them. The estate of Janis Joplin successfully sued a live stage production which included an on-stage performance of someone imitating Janis Joplin. The unifying factor in all of these cases was that someone was pretending to actually be the celebrity in question, rather than telling their life story.
Defamation is when someone “publishes” a false statement that damages someone else’s reputation. When that statement is “published” by being spoken, the statement is “slander.” When the statement is published in writing, in an audio format or in a video format, the statement is “libel.”
To deal with the “false statement” part of defamation, I encourage my clients to have three (3) sources for every factual assertion they write. I also remind them that the damage may not be to the main character. I had one client who wanted to make a character’s father an alcoholic. Even though the father was a minor character, the false statement that the father was an alcoholic would have been defamatory to the real-life father of the main character.
Be aware that even if the published statement is technically true but still creates a false impression about the subject of a life story, that showing of the subject to the public in a false light can give rise to a lawsuit.
Privacy laws address the way writers gain access to information about the subjects of their life stories. Even celebrities have a reasonable expectation that some parts of their lives will remain private, such as conversations with their lawyers or doctors. A writer cannot intrude upon a celebrity’s privacy by using technology to hear or see things happening behind closed doors. Similarly, a writer cannot gain access to a celebrity’s home by pretending to be someone else, like a Jehovah’s Witness or a cater-waiter.
The right to publicity pretty much boils down to the right to use someone’s name and likeness in trade and advertising. In a nutshell, if a writer is creating an unauthorized life story the writer cannot use the name or likeness of the subject of the story to advertise and promote the story. The exact parameters of the law differ widely from state to state, with some states providing protection for people who are deceased.
Why Enter Into An Agreement At All?
Even though any writer can write anyone’s life story without permission, there are a couple of compelling reasons to enter into an agreement with the subject of that life story.
First, a writer can get exclusive access to the subject through an agreement. Not only would the subject agree to be available to the writer to answer questions and share anecdotes, but the subject would not be available to anyone else. The subject could also give the writer access to archives, photographs, correspondence, and other people.
Second, there may be actual value in having the authorization and endorsement of the subject of the story.
The truly important thing is to be aware of what a writer can and cannot do without authorization, so that the right things go into any purported “life story rights” agreement.
And now you know the true story about life story rights.