Life Rights

I have a somewhat libertarian disposition when it comes to life rights. And if I weren't an attorney, and was instead a documentarian, I'd probably be in a lot of trouble. The issue arises of when life rights are needed.

Is your subject dead? If so, in most states and cases, the old chestnut "the dead can't sue" applies. A client was surprised ("shocked, shocked I say") to see my eyes light up when he told me that the subject of a film he was writing, based on a real person, was dead. And better yet, lived and died in New York where I know that the dead can't sue for life rights. Where life rights are concerned, the deader, the better.

If you have a live one, are you fictionalizing or making a documentary? If you're fictionalizing, you will need to get the subject's life rights. If not, well, this is where the libertarian in me conflicts with the advice that I give my clients.

Let me be very clear about this: The First Amendment protects educational and newsworthy speech. A documentarian should not be required to get life rights for the subject of a film where the work is being done from documents in the public domain on First Amendment grounds.

Nonetheless, there are issues of privacy and publicity, particularly as they pertain to non-public or personal pieces of information. If you are interviewing a subject, and she's talking about something that can be found in the Encyclopedia Britannica, you probably don't need a life rights release. As she would have no expectation of privacy in her discussion of that subject. (However, she may have an expectation of compensation and that should be negotiated and memorialized.) Alternatively, if you ask her questions of a personal nature, it's likely that she had an expectation of privacy and you will need to get her life rights.


There are also some commercial considerations that you should take into account:

1. Exclusivity: Do you want to lock your subject up and have sole access to him/her for tv/film/book, etc. You can't prevent someone else from doing research, but probably from conducting new interviews.

2. Prophylactic Measure: To prevent a suit, even if upon frivolous grounds.

3. Saleability: Closely related to 1 & 2 if you're looking to sell this to a production company or a major distributor, they're going to want to know that they won't have immediate competition and that they're not buying a lawsuit.

So in addition to the legal, there are good commercial, if not legal, to secure the life rights of his/her subject.

Life rights agreements tend to have the following main deal terms:

Initial Option Fee & Period
Subsequent Option Fees & Periods
Execution Fee
Grant of Rights (does it include fictionalization?)
Types of Media
Contingent Compensations
% of gross/net
Production bonus
Set up bonus
Personal appearances/consulting
Artistic control (rarely granted to the subject)