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(Page 1 of 1 pages for this article ) Filed under: How to buy a life storyWhat it means to buy someone’s “life story,” and what buying a life story teaches about buying every kind of rights
Whether the right to use a computer program derives from copyright or secrecy (or both) in a particular case could matter because copyrights and secrets are legally different—different to obtain, different to maintain, and different in the ways they can be sold or lost. Those differences can be relevant to how an agreement is drafted. This problem—the problem of people selling things that don’t exist—occurs frequently, especially in emerging technologies. Another example occurred in the early days of online computer games when companies including MPath Interactive and Total Entertainment Network were buying the exclusive right to host online game play—another thing which doesn’t exist. If game play involves copying and distributing copyright protected parts of the game, those rights can be sold, as can the right to “publicly perform” the game (which is arguably what’s needed to permit strangers to play each other across a network). Game names are almost always protected as trademarks, and they too can be sold for use in connection with an online game network. But a promise to sell the right to play online doesn’t mean anything by itself. It’s another Brooklyn Bridge—at best expressing a business goal without the legal analysis to assure achieving it. Much like a promise to sell a life story. What is a life story?1. A promise not to sue for invasion of privacy. “The right to privacy” covers several things, and putting the nonpublic details of someone’s life in a movie without their permission can violate a few of them. 2. A promise not to sue for defamation Defamation involves false statements that injure a person’s reputation. Movies usually don’t plan to be false, but they’re never literally true either. 3. A promise not to sue for violation of the right of publicity New York State has a law which prohibits, under threat of criminal penalties, using “the name, portrait or picture of any living person” for advertising purposes, or for the purposes of trade. California and other states and countries have similar laws which protect “public personalities”—the sellable personality associated with actors and other celebrities. For example, when a VCR company used a parody of Vanna White (not her name, not her likeness, just a robot in the future wearing a blonde wig spinning a wheel of fortune) she sued for theft of her right of publicity. She succeeded in keeping the lawsuit from being thrown out (although there was a funny opinion in dissent which raised the question of whether she had enough of a public personality to steal). 4. A promise to cooperate While anyone may be able to make a movie based a story reported in the newspaper, they won’t automatically have the cooperation of the subject of the story, who may have details to fill in, and who can promise to help promote the movie by appearing on talk shows. 5. A copyright license in things protected by copyright The subject of a story may have written about themselves, or have taken relevant photographs—and you can obtain the rights to use those things too. That’s not an exhaustive list of the things you want when you buy a person’s life story, or a full explanation of any of them. Every situation is a little different. The point is parsing out the elements that apply in a particular situation is the only way to know what’s even possible to buy. Parsing out the elements is also important because they’re often different in how they’re created, how they end, what words may be needed to transfer them. The “right of privacy,” for example, doesn’t survive—you can’t embarrass the dead. You also can’t injure the feelings of a dead person by telling lies that injure his reputation—so claims based on defamation don’t arise after death either. But the “right of publicity” does survive, at least under the law of some states. When IBM paid an actor to humanize its XT computers by playing Charlie Chaplin’s “Little Tramp” character, IBM paid Charlie Chaplin’s estate for the privilege. The need for such payment wasn’t legally clear at the time, but IBM presumably wanted to avoid trouble. Which is really what buying a life story is about—not about *getting* anything, so much, as about trying not to get sued. For that reason lawyers often recommend getting lots of people to sign away their stories—the person with the life story, their relatives and anyone else involved who might have privacy or publicity issues or any of the rest. The alternative is to stick to making movies using only public information about famous people who’ve been long dead. Or just to make something up.
- Charles
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Charles B. Kramer, Esq.
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Got a subject you’d like to see explored? I welcome suggestions!
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For discussion purposes, not legal advice.
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