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Taking Care of Business
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Old January 16th, 2005, 01:17 PM   #1
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Legal implications of being "based on a true story"?

Hello!

I have a couple ideas for short films, but both of these ideas are based on true stories. One story is based on one of my personal experiences. The other is based on a second hand description of real events that happened to friends of a friend of mine.

So I have a couple questions:

First, if you're writing and filming a story based on true events, do you need to get the written consent of the real people that were involved in the true events?

Second, if it is not possible to get their consent, is there a way to work around it (that is, if there's anything legal to work around) by changing details of the story? Changing names of people and places, adding scenes to the story that aren't based on true events, etc. (I intend to do these things anyways.)

Basically I'd like to make a short film that was inspired by true events, but I want to know the legal implications of this. I'm certainly not trying to do anything horribly unethical, either.

Thanks in advance for any help!

Adam
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Old January 18th, 2005, 08:26 AM   #2
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Welcome aboard DVInfo.net Adam! I have no experience with this
subject but am kinda interested in it as well. So I hope more
people respond.

It is my understanding (which could be wrong) that you have no
problems as long as characters are not easily identifyable. So
definitely don't use real names or portray someone in a bad light
that could easily be identified by others etc.

However, I could be completely wrong on this. Any others know
how this works?
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Old January 18th, 2005, 08:35 AM   #3
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It's difficult to give you a specific answer, with your general question. But if you look closely, in the credits of films, you will see the disclaimer, "These characters are entirely fictional, and do not represent anyone living or dead..." etc. etc.

For stories that are "ripped from the headlines" as Law and Order likes to promote - you are treading on different turf. Individuals have a right to privacy, as well as a 'right to publicity". Having said that, story elements and plot lines cannot be copywritten. Only the expression of those elements.

Make sense?
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Old January 18th, 2005, 08:40 AM   #4
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My Guesstimate would be that as long as you dont use real names you would be fine. Chaulk it up to inspiration.

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Old January 18th, 2005, 11:52 AM   #5
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Didn't the real life inspirations for "Dazed and Confused" sue recently? I haven't heard that the lawsuits have been dismissed or settled, so I assume they're still active. I believe Sylvestor Stallone was recently in litigation with the fighter whose life "Rocky" is based on.
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Old January 18th, 2005, 01:18 PM   #6
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It is always best to clear the rights because you can still be sued and it will cost you money even if you are in the right.

Also, be careful if you are basing your account on news reports because you can also be sued by the reporter if you are clearly using an identifiable account. This is why many producers will clear the rights with the reporter too. That is also a handy way around clearing the rights with the individuals because if it was reported in the news, it is then in the public eye. Right now it is commonly understood that the reporter(s) has the rights to their own story, not the newspaper (or other medium) that published it.

If you do primary research it is all yours but if you interview the subjects you must clear the rights to any information they gave you.

You are also always open to libel if the story is identifiably based upon a real person and you make them appear in an unfairly negative light. Whether or not this is true will go down to the way the case goes.

Always consult your own lawyer.
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Old January 18th, 2005, 01:48 PM   #7
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Keith, as far as news goes, in the U.S. you can't copyright facts (I'm a journalist). Every news organization I've ever worked for has asserted that they own every word that I write, even down to my notes. I've heard of photographers getting into spats with management over ownership before though, especially for photos that were never published. The famous O.J./Bruno Magli photo is a well-known example.
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Old January 18th, 2005, 11:01 PM   #8
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I think the surviving families of the divers that the movie "Open Water" was based on were upset. I'm not sure how that turned out legally.
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Old January 19th, 2005, 01:14 AM   #9
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<<<-- Originally posted by Marco Leavitt : Keith, as far as news goes, in the U.S. you can't copyright facts (I'm a journalist). Every news organization I've ever worked for has asserted that they own every word that I write, even down to my notes. I've heard of photographers getting into spats with management over ownership before though, especially for photos that were never published. The famous O.J./Bruno Magli photo is a well-known example. -->>>

Marco, I based what I said on an article I read recently about how producers regularly clear rights with the writers of the article. I'll go dig it up. Maybe it'll be good news to you (or maybe I read it wrong).

Found it:
Folio Magazine: The Dream Factory and the Idea Factory

Let me know what you think. It's been awhile since I read the article.
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Old January 19th, 2005, 07:51 AM   #10
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Well, the article is about the magazine industry, a world I know little about. I'm one of the "workaday wretches at newspapers" who the author says are unlucky enough to not be able to option their stories. However, his main point seems to be that magazine writers are only able to cash in through a "peculiar magazine-world tradition" that doesn't make any sense because the authors don't even own what they're being paid for. He even says the situation only exists because "Hollywood people are stupid." That's how I read it anyway. Thanks for the article, it was -- depressing.
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Old January 19th, 2005, 09:06 AM   #11
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Thanks for your responses everyone! I am also trying to contact some lawyers to see what they say. If I find out anything more definitive I'll post it here.

Adam
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Old January 20th, 2005, 08:24 AM   #12
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I've been reluctant to respond to this thread because it calls for specific legal advice, which I can not, and will not, give. The OP's best course of action is what he's indicated he will do -- contact some lawyers of his own.

With that said, there are a number of misconceptions that have been posted here.

As a general rule (note use of the word general -- this has no application to the OP's situation), there is no legal requirement that rights of some sort be obtained if a film or book is based on the life of a real person. There are, however, at least two concerns:

1. Defamation, including false light defamation: truth is a defense to libel, but you'll have to prove it. And, if you're wrong, and it's defamation per se, you're on the hook for punitive as well as actual damages.

2. Right of publicity: some states preclude appropriation of another's name, likeness and/or voice for commercial purposes without consent.
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Old January 20th, 2005, 09:44 AM   #13
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3. Leave it to Paul to come in and set us on the right path.
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Old January 26th, 2005, 03:00 PM   #14
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I just talked with a lawyer and his basic take on my situation is that a legal disclaimer in the credits of the movie should cover me, as well as changing names and places of course.

However, if the story is a well known unique set of events (like something unique reported in the news, not just another typical crime), then that is a different legal issue altogether, and others have touched upon this earlier in this thread.

So apparently it's a fairly grey area, but if the story isn't well known then it's easier to get by with a disclaimer, but of course the points that other people brought up about showing someone in a bad light is still applicable. But it depends on how "bad" the light is.

As for ethics, that's up to the director of course, not the lawyers.

Adam
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Old March 18th, 2005, 02:47 PM   #15
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Along the same lines, what if it is a story about a situation in which all parties involved were guilty of various crimes for which they could be prosecuted for if they came out and claimed to be the people the story is about? Now I guess that they could claim the since they were not caught in the act they are not liable for penalties. On the other hand I would still change all names and leave the disclaimer.
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