Real Name in screenplays

Bullfrog said:

I have written a screenplay base on real events involing my family and others. Because it is base on real events I used the names of Senetors, dead people, and people that still living. Is there any legal thing that I need to worry. I did some rescearh on the subject and am very confussed. A name is not a coyright issue but can be trademaked. The names I used are not trademaked. I also read something about defimation of chataer, nowhere do I make any of the people I named say or do anything that would make them look bad. I did also read of using people name for personal gain. But from what I understand is that if I were to use "John Doe" in a way that would sugguest that "John Doe" supported a product or use his likeness that it would be a problem. I do none of this. I simplely used names that were documented in public file that were part of the event. Please help

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The issue that you are potentially treading on is that of the "right to privacy."

That is, even if you don't particularly think that featuring somebody in your movie is damaging to them - they may simply want to be left alone and they may find that the simple act of being unwillingly projected into the public eye to be injurious to them.

In the eyes of the law, a private person has the right to enjoy their own privacy.

Now, there is an obvious exception to this and that is that the standard right to privacy doesn't apply to "public figures." That is, people like the President, or a movie star, or even somebody who has, because of some newsworthy event, found themselves thrust into the public eye -- (say someone who is suspected of a crime) -- is considered to be a public figure.

Newspapers write about them. CNN photographs them. They are in the "public eye."

Even though they may very much want *not* to be -- that's the way it is. In such a case, as a public figure, the rules regarding their depiction in a work of fiction are much more flexible. In order to be able to win a lawsuit (obviously they can sue you -- anybody can sue anybody) -- they have to demonstrate that -- first what you showed was untrue, second, that the depiction caused them some kind of damage, and third -- that it was done with malice -- that is, that you *intended* your depiction to cause them harm.

That's a very high standard for a public figure to reach.

So the question you have to answer in respect to the individuals that you depict are -- are they public or private figures?

And please note -- You might have the President -- he's a public figure. But it doesn't follow that the President's secretary is a public figure. There has to be some threshold at which a person is generally known.

A Senator might be considered a public figure - but it doesn't necessarily follow, unless there's been some kind of scandal, that the Senator's wife is a public figure, even if she shows up at the rallies and stands next to him and smiles.

Or the Senator's children.

That's one of those areas where one really needs to be very careful.

Ideally, in any situation like this, you always want to get what are known as "life rights" -- that is, a signed release form in which every living person that you are depicting in your work has signed, agreeing to allow you to use their name, likeness, and the events of their lives -- and most especially (and the key clause of any life rights agreement) -- the right to alter the events of their lives for dramatic purposes.

Because that is what you really need someone to agree to -- the right to alter the events of their lives for dramatic purposes.

Once they've agreed to that, you're home free. You can do anything you want.

But if you're just hoping that they'll be good sports and go along without having acquired any rights and any permission, just on the basis of the rights associated with "public figure" rights -- you need to be very careful and not depict anybody who isn't definitively a public figure -- or strictly a fictional character.

NMS

NMS is right about the private v public people - here is an article about some recent cases that were filed against writers by friends and siblings.

http://www.onpointnews.com/NEWS/New-Suits-Could-Chill-Writers-Use-of-Own-Experiences.html

Bullfrog said:

NMStevens thank you for the info. It was most helpful but I still need a little refining. You wrote that "In such a case, as a public figure, the rules regarding their depiction in a work of fiction are much more flexible“, what I am writing is facts. All dialogue come from transcripts take from a hearing. Now lets say I was writing about the trail of "Charles Manson" and I use the dialogue from the court hearing, could he sue me? Could he sue me for using his name and likeness? Could anyone from the trial that is depicted sue me? Or would I still have to get the "life rights” from him/them. Is he/them considered a "Public Figure"? I have seen many "Based on a true story" movies, are you saying that they had to get life rights from everyone? Does it apply to the dead? Could a family member of a deceased person sue me? do the dead have rights? Do I need to get the life write before I copyright my script?

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A basic principle of law is that one cannot libel the dead -- so if someone has passed away -- you are free to do with them what you will.

Regarding being sued -- as I said, anybody can always sue anybody, with the exception of very limited circumstances where someone has so abused the legal system, say by filing hundreds of frivolous lawsuits that they literally deny that person the right to sue anybody any more. But that very rarely happens.

The issue is always do they have any *basis* to sue.

I can give you an example. A company I worked for did a movie based on a case of a couple -- the woman was convicted of murdering both of their young girl children (though not the boy). The husband was suspected of complicity but ultimately never charged with anything. We didn't have any life rights on this thing. It was based on a non-fiction book written by the D.A. in the case. And it was largely based on court transcripts.

But you couldn't do the whole thing just on court transcripts. You had to have certain scenes that simply weren't covered in the trial. Scenes between the husband the wife -- because the question of his complicity came up and so certain questions of what they did or didn't do when they were alone together inevitably were raised and had to be dramatized in some fashion.

Now, every movie that gets made has what's known as E & O insurance. Errors and Omissions. That is, if you accidentally make some kind of mistake -- say you include a sign that is trademarked in your movie and everybody misses it and it ends up being aired and the trademark owner sues you.

E & O insurance covers you.

But what they also do is that they go over your script with a finetooth comb. They make sure, for instance, that none of the name, addresses, etc -- are the same as real names, real addresses -- because that's the sort of thing that gets you in trouble.

And especially when it's a true story -- they want to know that *everything* is sourced. Preferably multiply sourced. Court testimony is great as source material. Somebody objects to something being said in a movie, if you can point to court testimony and say -- this was sworn testimony delivered by the person who "said it" -- then you're generally fine.

You stray away from it, say to someone's written statement, or a newspaper report, or someone's notes that end up in a non-fiction book -- that's okay, but not as good.

And if it turns out that it's just something that the screenwriter made up because he thought it would make a good scene and it deals with people still living who might, for reasons of their own, *not* think that it was good scene -- and there are no life rights attached --

-- then the O & E people are going to very strongly suggest that you cut that scene out.

Oh, and if you're wondering about that movie that we made -- the husband sued us for a million dollars. I don't exactly know what the outcome of the case was, but I believe that the case was ultimately settled.

Which is why, in any case like this -- you always take a certain risk.

Now, if it's actually a famous serial killer, then you're probably in the clear, but you should also realize that every one of those guys has already had one or sometimes more than one movie adaptation made about their lives and crimes -- not to mention numerous book adaptations.

And the more obscure you go - the more you move away from "public figure" territory.

Unless everybody (and I mean everybody) is dead -- and then you're safe.

NMS

You cannot copyright an idea.

Bullfrog said:

NMS , you have been really helpful. I turly thank you for the advice. You have enlighted me a ton on the subject. You seem to know alot about the subject so Im going to ask you another question. I have read that I need to go to the US of Congress Libary to copyright the script, do I need to get "life rights" before mI copyright or can I copyright without them? And can I copyright the idea?

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No, you don't need life rights in order to copyright a screenplay, but you may find that not having such rights may make it harder to sell.

Or not. Again, not knowing what the project is specifically (and I'm not asking you to discussing particulars) it's difficult to answer specifically.

Also, you can copyright a project these days on line. Just google "Library of Congress copyright" and you'll be able to find the relevant forms and information.

And indeed you cannot copyright an idea.

NMS