Yes, get a lawyer! Writing contracts—especially something as complex as a life rights agreement—can get hairy if you don’t know what you’re doing. Sure, hiring a lawyer will cost you and could put the brakes on a situation you’d rather move quickly on, but in my opinion, the benefits outweigh the drawbacks. For one thing, a lawyer trained in entertainment law will have the experience and know-how you won’t. They’ll know the industry standards, what provisions are typical in life rights agreements, and what kinds of situations to avoid. Most importantly, they’ll be able to draft an agreement that ensures you properly get the life rights, but also protects you and your friend if the working relationship goes south. To me, that alone is worth the money.
But if you can’t afford a lawyer, or don’t want to rock the boat by hiring one, there are definitely things your life rights agreement needs so you can get the script finished and in front of producers. Things like:
Will the film cover your subject’s entire life (like Amadeus)? Will it cover a defining period of her life (like The Social Network)? Or will it jump around to specific events (like Steve Jobs)? Before you start writing, you and your subject need to hammer out what parts of her life are up for grabs, artistically speaking, and what parts are off limits. The same goes for which people in her life will be accessible to you and which won’t be. It should go without saying that the agreement should also explicitly permit you to use the subject’s name, likeness, voice, and other identifying characteristics.
Sometimes writers and producers want access to archival material the subject owns (or owned), such as photographs, videos, diary entries, etc. While these things tend to get used more in documentaries, they can still provide valuable insights for a script writer. If your subject or her estate possesses these, the agreement should specify whether you’ll have access to them as well.
Is your subject going to co-write the script with you, or will she simply be a rubber stamp to anything you write? How involved she’ll be in the writing process is something you want to agree on early, preferably before you start writing. This will prevent confusion and antipathy later on. If the subject is alive, you also want to get in writing how much cooperation her family and friends are expected to give. Ditto her estate if she isn’t alive.
Even if you and your subject are based in the United States, what happens if you get a French or German production company interested in your script? Determining whether your grant of rights is focused only in the U.S. or is applicable worldwide is worth discussing.
How long will you have the rights? Will you have them in perpetuity or will the subject only grant you the rights for a certain period of time? Most of the time, writers and producers don’t acquire life rights for an indefinite period. They usually have a fixed timeframe in which to exercise their option on the rights (i.e. get a movie made). When that time expires, the rights revert to the subject. Speaking of which, don’t forget to add a reversion clause stating when the subject will reacquire her life rights.
“Consideration” is legalese for compensation. For a contract to be valid, the parties need to exchange something of value. Usually it’s money, but it can be anything, really: stock, services, tangible or intangible assets. Even something as innocuous as promising to help get a movie made can be sufficient to meet this requirement. That said, compensation can be the stickiest part of the agreement since your valuation of the subject’s life story and hers could vastly differ. This is the kind of place where having a lawyer handle the negotiation could help move things along.
Since life doesn’t play out in a simple three-act structure with convenient plot points and a tidy resolution, many biopics will fictionalize events and characters. How much of that will your subject permit?
Obviously, this isn’t an exhaustive list, but it gives you a sense of what kinds of things you want to cover. Even outside the scope of your agreement with the subject, however, there are other topics you’ll want to discuss that will arise further down the road when talking with a producer or production company.
Other People: A biopic is based on a true story, which means that your subject isn’t the only person whose rights are important. You’ll have to get permission from anyone else who factored into subject’s life for the periods your film covers.
Ancillary Rights: sequels, remakes, TV series, books, merchandizing and stage rights. While considering how far your subject’s life rights extend may not be on your mind at the writing stage, having that talk with her before writing begins may be a worthwhile endeavor.
As you can see, there’s a lot of stuff to cover, which is why I recommend hiring a lawyer to handle this for you. But if you decide not to hire one, at least now you know what to talk about before moving forward. MM
Have a legal question you want our advisers to answer in a future installment of Cinema Law? Send it into [email protected] with the subject line “Cinema Law Question.”
Gregory R. Kanaan, Esq. is a New England-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.
The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.
