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Life Rights, Privacy Rights and the Right of Publicity

A question I’m often asked is whether a writer or filmmaker needs to purchase the “life rights” for a story waiting to be told. This question comes up when someone wants to tell a story involving real life events, and therefore involving people that actually exist. The storyteller usually wants to include the real life central character, and perhaps other real life people in the retelling of the events. So, do the life rights need to be purchased or obtained by consent?

Cerberus, the three headed dog.

That’s my answer – or at least that’s what I think of, because the answer is a little like Cerberus the three headed dog.

Whether the life rights need to be purchased depends on three things, at least: (1) Whether the story will result in any real life person being “recognizable” in the story; (2) whether the recognizable person has an expectation of privacy (whether they’re a public figure or not), and to what extent do they have an expectation of privacy; and (3) even if they have no expectation of privacy – for example, they’re dead – whether there is a right of “publicity” at issue.

Generally, people have a right to a reasonable amount of privacy – that is, a right to their seclusion. However if they are a public figure – either a “limited” public figure (in the news for a particular reason, for example) or a politician or celebrity, they may have a lower expectation of privacy – and therefore some or much of their life may be the subject of a story without obtaining life rights. That by itself can be a fairly complex question.

If the real life protagonist is dead, then their right to privacy has died with them. However, if they commercialized their persona in life, that persona may still be protected “property” even after their death, and therefore perhaps off limits in someone else’s unauthorized story. That too is a complex question, and one with answers that vary based on the laws of different states.

All of those considerations are balanced against the broad freedom of speech under the U.S. Constitution, and further balanced against issues of defamation, libel, slander or portraying someone in a false light.

Those additional issues add several other heads to our already three headed dog. A complicated beast to be sure.

So my general advice to writers and storytellers is to first consider fictionalizing everything, and therefore removing the risk of infringing on any real person’s life rights, privacy rights or right of publicity. The storyteller may even find that fictionalizing real life events results in more freedom to dramatize the story, thereby making it more poignant or more entertaining.

But if you absolutely, positively MUST reference real persons to tell your story, definitely involve an attorney well versed in these matters, and preferably BEFORE you expend time and effort on the story – lest you get bitten later by one of Cerberus’ snapping jaws.

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