by Linda Seger
Many true-life stories rely on public domain material. The movies about such public figures as Elvis, Liberace, and Jackie Kennedy were all done with public domain material, without getting the subjects’ rights. Although one of the Liberace films was done with the cooperation of the estate, the other was not. Sometimes a producer or writer will not get principal rights, but may go after subsidiary rights, such as the rights of a friend or relative—someone who would know the principal subject well. In this case the story may be told from this person’s point of view, while relying on public domain material for scenes with the principal subject.
Doing a script by using public domain material does not mean that you can’t be sued. It does not get you over the legal hurdle of claims of defamation of character or of invading the right of privacy of the subjects of your story.
When the networks planned to do an unauthorized film, or a docudrama, as such TV films are called, about Elizabeth Taylor, she promised to sue—and to spare no expense. The project was dropped. When they were thinking of doing one about John De-Lorean, he also promised to sue. His story would have had other pitfalls, since he was eventually found innocent. You are particularly vulnerable when doing a story about someone accused of a crime and then found innocent, since focusing on the accusation may defame his character, or invade his right to privacy.
If you do decide to write a story about subjects who are in the public eye and are still living, you have two choices. You might decide to write the story completely from material that is part of the public record, or you can contact the persons in order to get their rights. However, if you contact them and they won’t give you their rights, you may then be unable to use the material in the public domain, since the negotiation has failed. Once the contact is made, you’ve chosen a route that probably has only two alternatives—either the person will sell you the rights, or you can’t write the story. It would be difficult to convince a court at a later date that you tried to get the rights for “added protection.” The court will probably find that your attempt to obtain rights is an admission that you felt you needed those rights; therefore, doing the story without them could lead to a lawsuit.
Even though you could write the adaptation entirely from material in the public domain, you may want to get an option. Several years ago the producer Robert Radnitz wanted to do the story of Mary White, the child of William Allen White, editor of the Emporia, Kansas, newspaper. White wrote a famous essay about his daughter, who had died at a young age. This movie could have been done without obtaining any rights, since the essay was in the public domain. However, Radnitz wanted to shoot the film in Emporia, Kansas, with the full cooperation of the town. As a result, he obtained rights, even though that wasn’t necessary.
Obtaining an option even though it’s not necessary gives you certain advantages when writing the story. (1) It gives you the literary rights to the story, which protects you and the subject. (2) It may get you a release from any legal claims that may arise from the use of that material. For instance, if the subjects have given you their rights, they cannot then turn around and sue because they don’t like the way you write their story (unless you defame them or invade their privacy). It gives you a safety net. (3) It may get you the technical assistance or the active involvement of the owner of the rights. In many cases, you will need the assistance of your subject. He or she can give you further information, insights, and even serve as technical advisor in the film, usually for an additional fee. In some cases, subjects will even play small roles in their films. Norton Baskin, Marjorie Kinnan Rawlings’s husband, appeared briefly in the film Cross Creek, about the life of Marjorie Kinnan Rawlings (written by Dalene Young and produced by Robert Radnitz). When Shirley McLaine’s book Out on a Limb was optioned, she was hired to play herself.
The First Amendment recognizes that biography, literature, and docudrama entitle a writer to comment on matters that are in the public record. But public domain material still carries potential dangers and traps.
LEGAL LIABILITIES IF YOU DON’T OPTION RIGHTS
When you write from public domain material you must be particularly careful about not misinterpreting, defaming, or fictionalizing. For instance, if you were to write something false and defamatory about Oliver North, even if you were working from public domain material you could still be sued for defamation. If public figures do sue, they have to prove that the work was published with actual malice, knowledge of falsity, and/or conscious disregard for the truth. If it’s clear that a public figure has done something negative, you can write about that, but you can’t misinterpret. If you mistakenly said something false about someone, you would not be held liable unless the public figure could prove that you had done so willfully and deliberately.
The film Silkwood was an expose of the Kerr-McGee Corporation’s unsafe practices in their nuclear plant. It was done without any agreements with the company. There were elaborate agreements with the estate of Karen Silkwood, with her boyfriend, and, at a later date, with her roommate (played by Cher). Although Kerr-McGee threatened legal action, they never filed any lawsuits against the film. This was not because the producers signed a release, but because the film was so carefully produced and documented that everything attributed to Kerr-McGee, everything they were accused of doing, was sufficiently factual and verifiable that they could not mount a successful defamation case.
If you do decide to write from the public domain, you can’t make up anything unless it’s clearly shown to be fact. You could show a scene of Jackie Kennedy at the funeral of John F. Kennedy: that scene is in the public domain because we’ve seen it on television and read about it in the newspapers. But if you decided to follow this with a scene of Jackie alone in her room, or having a private conversation with her children, you would have begun to fictionalize the story, and you could get into trouble. Again, whether you are sued for this would also be dependent on what happened in that scene. Did you defame Jackie’s character? Did you misinterpret? Did you cast her in a false light? You could be sued for invasion of privacy and for presenting nonfactual material without a release or an option.
Sometimes writers try to get around possible defamation charges by fictionalizing material and adding a disclaimer that “Any similarities to people living or dead are coincidental” or that the material is “inspired by a true story,” but is not about any particular person. But this can also leave you open to lawsuits. As attorney Steve Rohde puts it, “One man’s fictionalization is another man’s falsity.”
In California several years ago there was a case involving a novel called Touching, by Gwen Davis. To write her book, Davis attended a series of nude marathons in Topanga Canyon that were conducted by Dr. Paul Bindrim. Prior to attending the sessions she signed a contract in which she agreed not to write any material about them. Touching was a thinly veiled story about a series of nude marathon sessions in Topanga Canyon. She fictionalized the character of Dr. Bindrim and for dramatic purposes suggested that his particular methods of therapy had caused the death of one of the participants. Dr. Bindrim sued Gwen Davis and her publisher, Doubleday, not only for breach of contract, but also for defamation of character. Several witnesses testified that they recognized Dr. Bindrim as the main character. At the trial, Bindrim’s lawyers treated as a false statement everything that the author had done to fictionalize the character. When the character had a long white beard, and Bindrim didn’t, that was false. When the character said abusive things that Bindrim didn’t say, that was false. They were able to catalogue every falsity that the author claimed was fictional, and used the fiction to prove that false things had been said.
They then put witnesses on the stand who said that when they read the book they thought that the character was Paul Bindrim, even though the name of that character had been changed. Bindrim won that case. Although the damages were reduced on appeal, it stands as a warning to writers to be careful—you can libel someone through fiction.
The book White Hunter, B
lack Heart—based on the director John Huston and the events surrounding the filming of The African Queen—was published in the early 1950’s. It was written by Peter Viertel, who also did the rewrites on the script for The African Queen. To Viertel John Huston was both a hero and a villain, and the book shows an egotistic director—flawed, manipulative, even cruel. In 1957 the novel was optioned, first by Hecht-Lancaster Productions, then Columbia, then Rastar. The option included a release from both John Huston and Peter Viertel to use the novel as the basis for a script, provided John Huston’s name wasn’t used. The film was not made until after Huston’s death, and it probably couldn’t have been made if the rights had not been obtained before he died, since much of the portrait was negative.
RESEARCHING PUBLIC DOMAIN MATERIAL
A writer can find out whether a book is in the public domain by asking the U.S. Copyright Office in Washington, D.C., to conduct a copyright search. There’s a nominal fee and it may take a while to get the results. The address of the U.S. Copyright Office is Library of Congress, Washington, D.C. 20559; telephone (202) 479-0700.
There are also private companies that can conduct these searches. You can get faster results from them, since you can hire them on a “rush” basis if you need the information immediately. Thompson and Thompson, in Massachusetts, is a corporation that will conduct a search for you, for about $85 and up. In addition they will also search for articles, announcements, book reviews, press releases, etc. relating to the work, and/or can help you track down the owners. Their address is 500 Victory Road, North Quincy, Mass. 02171-1545; telephone (617) 479-1600.
FINDING OUT WHO HAS THE RIGHTS TO THE STORY
If you are trying to option material that is not in the public domain, you’ll need to find out who has the rights to a particular story.
If you’re optioning a book, start by talking to the publisher. All major publishers have a rights and permissions department, which will tell you whether the publisher controls the motion picture rights or whether the author retains those rights. You will deal either with someone in that department or with the writer’s agent, or you will be turned over directly to the author. In order to protect the author’s privacy you may be asked to put your request in a letter, which will then be forwarded.
If you want to obtain the rights to a play, you can contact the Dramatists Guild; if the play is published, the publisher will probably be either Samuel French or Dramatists Play Service, both in New York City. Either they will retain the rights to the play, or they can give you the playwright’s address. You may also be able to find the address of a playwright or screenwriter (or the name of the agent) through the Writers’ Guild East or West.
It will usually be difficult if not impossible for a new writer to obtain the rights to a Broadway show. Many of these rights are tied up before the show even opens, often by a motion picture studio, which will have obtained the rights in the early stages of development or rehearsals. However, you may be able to obtain the rights to an Off-Broadway play. If the play is still running, you can contact the playwright through the theatre. If not, the play may be published, in which case you can get the playwright’s address from the publisher.
If you find an article in a magazine that you want to option, call the magazine. Chances are the rights will be held by the writer of the article, but the magazine will usually give you the name, or forward a letter for you.
You are allowed to use specific public domain facts from the article for your story without optioning the article: historical facts cannot be copyrighted; they are in the public domain. However, the expression of the facts is copyrightable. If you did a script about the Iran-contra affair based on the facts in a newspaper article, you wouldn’t need to option the article. But if you did the story from the viewpoint of attorney Brendan Sullivan, using his recollections, you would need to get his rights.
If the writer controls the rights, none of the above sources can give you an address, and you are determined to track it down, there are some other avenues to try, including public records (if you know where the writer lives) such as court transcripts and civil lawsuits. You can hire a private investigator who has access to voter records. Use your imagination. And don’t bypass the phone book. You might be surprised at how easily you can find the person you want.
WHOSE LIFE IS IT, ANYWAY?
With true-life stories, once you decide that you are not going to go through the public domain you have to figure out whose story (or stories) you need to option before you can make contact with the subject.
To begin, look for the central figure in the story. If you were going to do a story about the Iran-contra affair, whose rights would you need to tell the story? Oliver North’s? Ronald Reagan’s? John Poindexter’s? George Bush’s? Robert McFarlane’s? You would need to decide how you’re going to tell the story. Whose point of view will you use? If you decided to tell the story from Oliver North’s point of view, you might need to option the rights of his wife, of Poindexter (his superior), maybe even of McFarlane. You would probably decide that you can use public domain material for Reagan, Bush, and other public figures. You would be asking not only who’s the main character, but who else is involved in the story, even in a marginal way. The number of permissions you need will depend on the perspective you take on the story.
You may want to option someone’s life story, and realize that there are several books about that person. Which one do you option? If possible, option all of them, to protect yourself.
Sometimes one book is already optioned, so you option the other(s). Several years ago I consulted on a project about Edgar Cayce, based on the book There Is a River by Thomas Sugrue. Producer Joie Albrecht had optioned the book, but there were other books about Edgar Cayce that covered other aspects of his life and were optioned by other producers. In this case, Joie could work only with the material from the optioned book, or from public domain material about Edgar Cayce.
CAN ANYONE GO AFTER AN OPTION?
There are millions of stories out there, and they are fair game for both the new and the experienced writer, producer, or director. In fact, there are numerous examples of new writers who managed to get rights away from big companies.
Sometimes subjects of true-life stories just don’t trust a studio and would rather work with someone they know personally, trusting that this person will protect their interests. Sometimes you may find that you have something in common with the subject, which will strengthen the possibility that he or she will sell you rights. Say that you’re a writer who was once in the Olympics. It may be that Bruce Jenner or Mark Spitz would rather sell their rights to you than to an impersonal studio, which may not understand sports. Or you are an M.D. and a writer. Maybe Dr. Christian Barnard would be more comfortable selling you his rights, believing that you’d better understand his story.
The producers who optioned Karen Silkwood’s story were not well known, in spite of the fact that her story and her death were national news. A number of people were interested in her rights, including Jane Fonda, who had read a story Ms. magazine had done on Silkwood. However, two young filmmakers at UCLA, Buzz Hirsch and Larry Cano, became interested in the story, realized it would make a terrific movie, and were determined to get the rights. By making some phone calls, they found Bill Silkwood, Karen’s father, in Texas. They respectfully introduced themselves to him and made plans to see him. They spent several days with him, telling him that they had a financial partner with some resources, and that they wanted to tell the honest, true story of his daughter. In the end, notwithstanding the interest of many other people, they got the rights.
In the early 1980’s, Columbia Pictures wanted to make the story of Out of Africa and had bought the rights to Karen Blixen’s book of that name. This book, however, did not contain enough material to create a really workable story. Knowing this, writer Kurt Luedtke set out to option a small biography by Errol Trzbinski about the relationship of Denys Finch-Hatton and Karen Blixen, called Sile
nce Will Speak: A Study of the Relationship Between Denys Finch-Hatton and Karen Blixen, hoping to use it as leverage with the studio so he could write the script. He had already written the screenplay for Absence of Malice, so he had a track record and was known by the studios. As it turned out, he never had to option the book. After he mentioned it in a meeting with Columbia, the studio decided to option the book and hire him to write the script. While he was writing the script he happened to meet Judith Thurman, who was then writing a biography of Isak Dinesen (as Blixen was known). Columbia optioned this biography before it was published, solely in order to keep someone else from optioning it later. They discovered, however, that it was truly a fine book, and it became their most valuable resource for doing the film.
RIGHTS TO A CONVICTED FELON’S STORY?
Suppose you want to get the rights to a true-life story about a convicted felon. Some people feel that convicted felons have no rights, and they shouldn’t be making money from their crimes. In certain states, there are “Son of Sam” laws that say criminals in those states cannot make money off their crimes. If they write a book, they can’t keep any profits from its sale, nor can they profit by selling their rights for a movie (these laws are being challenged in court). Most of the time the convicted individual’s rights will not be necessary, since the public record will probably be adequate for your purposes. But if you want to do a scene that isn’t part of the public record, you will need to try to find some documentation. Maybe you want to do a scene that shows a murderer having a party with his wife and friends the night before he killed someone. You’d first ask, “Did this ever come up in the court record? Did the wife testify to anything like this?” If she did, you might decide that the wife is now a public figure because of testifying, and the event is now part of the public record, so it can be used. A lawyer might decide, however, that she is not a public figure, and that you defamed her through the scene you showed.