Terms of the Agreement
In negotiating for life-story rights, there are a number of important issues
that need to be resolved. At the outset, the parties must determine the
extent of the rights granted. Does the grant include remakes, sequels,
television series, merchandising, novelization, live-stage rights and radio
rights? Are the rights worldwide? Buyers will usually want as broad a grant
as possible. The seller may insist on retaining certain rights.
The buyer must also consider other releases that may be needed. What
about the subject’s spouse, children, friends and relatives? Will these
people consent to be portrayed? Will the subject ask his friends and
relatives to cooperate? Can these secondary characters be fictionalized? If
the producer is planning an ensemble piece about a basketball team, it
makes no sense to sign up players one by one, hoping to get them all. A
smart producer will gather the team in a room and purchase all of the rights
or none.
Another issue is whether the rights can be assigned to a studio or
production company. If the buyer is a producer, she will often need to
assign such rights to a studio or network later as part of a
financing/distribution agreement.
The purchase of life-story rights can be structured as either an
option/purchase deal or as an outright sale, often with a reversion clause. A
reversion clause provides that in the event the rights are not exploited
within a certain number of years (i.e., the movie is not made), then all
rights would revert to the subject. This provision protects the subject if he
has sold rights to his life story to a producer who never uses them, and
some time later another producer is interested in making such a film.
The agreement should recite the consideration exchanged. Consideration is
a legal term of art. Consideration is that which is given in exchange for a
benefit received. It is a necessary element for the existence of a contract. A
contract is only binding with consideration. It is what distinguishes a
contract from a gift, which may be revocable.
Consideration is usually money, but it can be anything of value. As a
general principle, courts do not review the adequacy of consideration. In
other words, should you be foolish enough to agree to sell your brand-new
car, worth $15,000, for only $5,000, don’t expect a judge to rescue you
from the results of your poor judgment. Unless there was some sort of fraud
or duress involved, the contract will be enforced, although it may be unfair
to one party.
To ensure that a contract is binding, agreements often recite: “For ten
dollars and other valuable consideration.” This clause establishes that there
has been an exchange of value, even if it is nominal consideration. Make
sure the consideration is actually paid. It is wise to pay by check so that you
will have the cancelled check as proof of payment.
Mutually exchanged promises can be adequate consideration. For example,
a producer’s efforts to develop a project could be deemed adequate
consideration for an option. But to be sure their contracts are enforceable;
producers may want to pay some money for the option. There are some
exceptional circumstances when courts will throw out a contract if the
terms of the contract are unconscionable.
There are other ways to compensate a subject of a life story besides a flat
fixed fee. You could give the subject points (percentage of net profits),
consulting fees and/or bonuses to be paid when the film is exploited in
ancillary markets.
An important part of any depiction agreement is the “Warranties and
Representations” clause. A warranty is a promise. The buyer will want the
seller to promise never to sue for an invasion of his rights of publicity and
privacy, or for defamation, even if the buyer takes some creative liberties in
telling the story. The warranties must cover all conceivable situations. No
one wants to buy a lawsuit.
There will also be a provision that gives the buyer the right to embellish,
fictionalize, dramatize and adapt the life story in any way he chooses. This
is a frequent sticking point in negotiations. The subject is delighted to be
asked to have her story told on the silver screen, but when you present her
with a depiction release, she becomes concerned. She asks, “This document
says you can change my story any way you like and I can’t sue for
defamation. How do I know you won’t portray me as a monster?”
A producer may reply: “Trust me, trust me.” Sometimes that will work. But
the subject may respond: “I have no intention of trusting any of you
charming Hollywood types. I want script approval. Write your script, and if
I like it, I’ll sign the release.”
Can a producer give a subject script approval? No sane producer would. No
producer is going to expend a lot of time and money developing a script
only to find that the subject has changed her mind or is unreasonably
withholding approval.
If the subject refuses to give the producer carte blanche, are any
compromises possible? Yes. The subject could have approval over the
treatment or selection of the writer. Perhaps the subject will figure that if
she approves only a classy writer, her portrayal will be acceptable.
Alternatively, the producer could offer to make the subject a creative or
technical consultant to the production. “You’ll be right there by the
director’s side,” says the producer, “giving him advice and suggestions to
ensure that everything is authentic.” The producer may not mention that
the director doesn’t want the subject on the set and is not required to accept
her suggestions.
Another possible compromise could limit the subject matter and period
portrayed. Perhaps the subject is primarily concerned that an embarrassing
incident in her life not be re-enacted in Panavision. The release could say
that certain incidents (e.g., a divorce) are not included in the release. Or the
release could cover limited periods of the subject’s life (e.g., only those
incidents that occurred before 1947).
Finally, the subject might have the right to determine screen notice. She
could decide if the film will be billed as a true story or a dramatized
account. Alternatively, she could decide whether real names are used for
the characters.
Life Rights
Similar to a rights purchase agreement is a life rights purchase agreement. If a
producer intends to produce a biography on a person’s life, they may purchase that
person’s cooperation with a so-called life rights agreement. These rights can also be
purchased from someone who knows the subject well. This is most commonly used
when the subject is deceased. In that case, the life rights can be purchased from the
subject’s heirs or other immediate family who inherited these rights upon the
subject’s death. While story rights of certain deceased individuals may be considered
“public domain,” particularly if the individuals did not exploit their right of publicity
during their lifetime, there are dangers in producing a “bio pic” without an actual
person’s verified story. Included in these dangers is being sued for slander by the
deceased individual’s estate and/or being prosecuted for criminal slander against a
deceased individual in certain jurisdictions. Clearance of these issues can be critical
in obtaining errors & omissions (“E&O”) insurance at the time of distribution.
