When creating a project – whether a film, TV show, videogame, graphic novel, or other form of creative expression – that depicts actual living individuals, a commonly arising question is: “Do we need to obtain life story rights from that person?” The answer can be a bit puzzling: “Well, ‘life story rights’ don’t really exist, but you should still probably put a life story rights agreement in place.”
Huh?
Even though, strictly speaking, life story rights aren’t actually rights at all, there are essentially five reasons why producers should enter into a life story rights agreement: release/waiver, access, cooperation, exclusivity, and E&O Insurance. We’ll discuss each of those reasons in further detail below.
Life story rights: Not actually a thing
While people colloquially refer to “life story rights,” no one has a legally recognized proprietary interest in the story of their life. There’s certainly no “Life Story Act” which confers such an interest, and no other form of legal protection quite fits the bill either. In a sense, a “life story” is really just a collection of facts about a person. And as courts have repeatedly made clear, there is no copyright in facts (for an illustration of this principle in the film and TV context, see the decision in Maltz v Witterick 2016 FC 524, where the court dismissed the plaintiffs’ claims for copyright infringement based on the defendant’s use of facts about a person’s life where such facts had been set out in a documentary produced by the plaintiffs).
When people talk about “life story rights”, they are likely referring to a loose cluster of potential claims that a person might assert when confronted with, say, a movie about themselves to which they object. Those potential claims include misappropriation of personality, invasion of privacy, and defamation.
Of those, misappropriation of personality is usually the easiest to discount: Canadian courts have consistently, from the Gould Estate v Stoddart Publishing Co decision in 1996 to the Wiseau Studio v Harper decision in 2020, drawn a distinction between using someone’s image for the purpose of driving commercial activity such as by means of endorsements (“sales”) and using someone’s image in connection with expressive activity about that person such as in a biography (“subject”). A “sales” use falls within the scope of the tort of misappropriation of personality; a “subject” use does not – so, writing a book about someone, or making a movie depicting them, generally will not fall afoul of the tort.
Invasion of privacy claims and defamation claims can be a little trickier to navigate, depending on the content of the project. Ontario courts, in particular, have over the last few years recognized new common law torts of “intrusion upon seclusion,” “public disclosure of private facts” and “false light” – the combined reach of the new torts is potentially quite broad. For example, the U.S. Restatement (Second) of Torts, to which the Ontario courts have repeatedly referred when discussing these new “privacy” torts, describes the “public disclosure of private facts” as being concerned with matters pertaining to sexual relations, family quarrels, illnesses and “most details” of a person’s “life in [their] home.” Depending on what is being depicted in the project – particularly if the depictions are not relying on factual matters which are already in the public record – grounds for a claim could be present. Similarly, defamation claims are an ever-present risk due to the way in which creative and formal imperatives can result in a “torquing” of someone’s character: actual incidents may need to be “dramatized” or “sexed up,” multiple characters may need to be composited into a single on-screen portrayal, and nuance or explanatory background may need to be cast aside in order to meet a two-hour running time.
Life story rights agreements: Still worthwhile
So, despite life story rights not being an actual “thing,” there are still risks in proceeding without having some kind of agreement in place with the individual being depicted. The “life story rights” agreement is a mechanism for mitigating those risks, and potentially obtaining additional advantages, as follows:
Release/waiver of claims – I often caution clients who are working through their clearance process that the goal of clearance isn’t to be in a position to win a lawsuit if someone sues you, it’s to avoid the lawsuit in the first place. One critical purpose of a life story rights agreement is to obtain a waiver and release of claims from an individual being depicted so as to foreclose the possibility of a claim, irrespective of how unfounded or unlikely to succeed it may be. A life story rights agreement that contains a waiver and release of claims thus functions as something of an informal insurance policy – it proactively removes a potential source of friction.
Access – For some projects, it may be advantageous simply to have access to the individual in question. They might be able to provide additional narrative or emotional insight that is not available in public sources, or they might have and be willing to disclose private journals or correspondence, for example. The individual might be willing to provide consulting services, weighing in to correct errors and misrepresentations (“It didn’t actually happen quite like that”). A meeting between the director or screenwriter and the portrayed individual could open up creative avenues not previously contemplated.
Cooperation – Related to the ability to “access” the individual, securing their co-operation in the project can have its own separate benefits. Beyond consulting, there may be promotional or credibility benefits to be gained by having the “authorized” version of the story (i.e., the version that was made with the participation of the individual being depicted); the life story rights agreement might even oblige the individual to participate in promotional or marketing activities for the project. Further, the individual could be obliged to assist with obtaining release/waivers/consents from other people who might be depicted in the project (spouses, children, friends, etc.) and to provide the consents needed to obtain access to materials held by other parties (e.g., waiving the benefit of privacy or confidentiality restrictions on releasing documents/information possessed by others).
Exclusivity – It will often be productive to have the individual agree not to participate or cooperate with other competing projects. No producer wants to find out that there are two (or more!) projects on the life of the individual coming to market at the same time, and securing exclusive access can help prevent that from happening. (To be clear, even if the individual agrees to an exclusivity covenant, that will not prevent others from independently creating their own projects, but it will give the producer a cause of action if the individual breaches their exclusivity commitment and works with competing projects.)
E&O insurance – Almost every audio-visual project that is going to be commercially exploited will require errors and omissions insurance – and virtually every E&O insurance policy will stipulate in its clearance procedures that all living individuals who are depicted in the project must sign some kind of written agreement / release / waiver / permission, etc. So, if a particular living individual’s life plays a prominent role in your project, and you don’t obtain a life story rights agreement, there is a risk that E&O coverage will be limited by an exclusion for claims from that person, or a denial of coverage if a claim does ensue (because of a failure to abide by the clearance procedures). Whether a life story rights agreement with each depicted individual will actually be entered into is a function of a variety of factors, including budget, timelines, analysis of the strength of potential claims (usually leading to discussions between production counsel and the E&O insurer’s counsel), and the risk tolerance of the parties.
