In the 2014 film The Theory of Everything, Actor Eddie Redmayne delivered a dedicated, compassionate and inspiring performance portraying the extraordinary physicist Stephen Hawking and his romance life. (Freckles won an Academy Award for this role!) Sadly, this great physicist passed away in March 2018. Rumor says Hawking enjoyed watching the movie The Theory of Everything and even shed a tear or two.
In making biographical films, the most important rights for a filmmaker to secure are the rights surrounding a real-life story. Granted by the first amendment, a filmmaker is free to use materials and information obtained through public record. But in many cases, the process requires access to the story owner’s diaries, private documents and facts. The best practice is to purchase all relevant rights including the right to fictionalize a story, publicity rights and effectively a waiver of rights to sue the production for defamation, invasion of privacy or false light. This includes a purchase agreement for the main character's story and releases from all side individuals.
Publicity rights are the economic rights attached to a person’s name and likeness (e.g., image). An example is using a public figure’s name for advertising or commercial promotions in the marketplace. In most states, publicity rights expire when the individual is dead, except in Tennessee, where Elvis Presley’s heir is still guarding his name and images over any commercial use.
Libel (written) and slander (oral) are the two types of defamation. The defense to a defamation claim is the truth, and for public figures to claim defamation, proof for a malicious intent is required.
If some private facts are highly offensive, they cannot be released without permission. Invasion of privacy claims are based on tort law except in California, thus varies state to state.
The rights to claim defamation and invasion of privacy expire when the individual is dead. Filmmakers will have a much easier time in IP clearance if the biographical film portrays a dead person. Same for biography book authors.
Protect Dead Person Rights
While it is difficult to protect the privacy and images of a dead public figure, there are ways to control certain rights by, for example, registering a trademark of this person’s name for certain goods and services thus no one else could use it in the same categories. I noticed Stan Lee’s name and image were on the trademark database shortly after his death.
Bonus - String Theory
The theory of everything is more commonly referred to as the string theory, which is also an approach to understand quantum gravity. In Albert Einstein’s last notes and conversations, he expressed his strong desire to “read God’s mind” and “know God’s thoughts” by finding one equation that would explain everything and every force – the theory of everything. Till this day, physicists are still working on this great mission. Notably, physicist and professor Michio Kaku has gained popularity for his work in string theory. Kaku believes if we understand this theory of everything, one day we would be able to preserve and save ourselves as intellectuals. Here’s my favorite joke told by Michio Kaku – dinosaurs died because they didn’t have a space program. True.
Silvia Sun, Esq.
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