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By: Christina Hamlett

Part 1
By Christina Hamlett

So there you are, working at a feverish pitch on your first screenplay and suddenly realizing that it’s missing that vital “something” that will really make it sizzle. In the background, the oldies-but-goodies station is running a medley of Elvis tunes. Eureka! That’s it! What’s not to like about a flick that features a walk-on by The King? Excitedly, you start to type “ELVIS enters the deli as CHLOE looks up from her pastrami sandwich” but something stops you. What is it? Hopefully, it’s this very article you’re reading now, a primer on the do’s and don’t’s associated with recruiting dead celebs to people your plots.

When I first started researching the subject in order to best respond to client inquiries, I was fortunate to be able to pick the brains of the following entertainment attorneys, who graciously supplied answers to some of the most common questions regarding the privacy rights of famous personas.

Jaime Wolf of Pelosi, Wolf, Effron & Spates
New York (www.pwes.com)

Mark Litwak of Mark Litwak & Associates
Beverly Hills (www.marklitwak.com)

Daniel N. Steven of the Law Offices of Daniel N. Steven
Rockville, Maryland (www.publishlawyer.com)

Scott M. Goldberg, Esq. of William L. Whitacre & Associates, P.A.
Orlando, Florida (www.showbizlaw.net)

An article such as this, of course, is no substitute for consulting a law professional if you’re in doubt about just how far you can push the envelope in depicting living and dead icons. The comments herein, however, will save you some valuable time in understanding what rights are yours between FADE IN and FADE TO BLACK.

Q: Do the same laws that cover dead celebrity rights in screenplays also control people who make their living as impersonators? I can't believe that all the Elvises and Marilyns and Blues Brothers had to get advance permission before they could start their careers.

Mark Litwak: If the impersonation is a parody or otherwise protected expression, then it would be protected content under the First Amendment. Otherwise, it might be considered an invasion of the celebrity's right of publicity, or some other cause of action such as the unnamed cause of action mentioned in the Bette Midler case where a celebrity look-a-like impersonated her voice for a commercial. Impersonation can also give rise to a cause of action for unfair competition and/or trademark infringement in some circumstances, unless there was a disclaimer ensuring that viewers know that this is an impersonator, not the real thing. Likewise, if it is apparent from the circumstances that an impersonator is at work, not the real person, there would be no grounds for confusion. Rights of publicity vary by state law, and the laws vary on whether this right is descends to the estate after death. There are cases where celebrity impersonators, and their promoters, have been successfully sued, such as the Big L case involving an Elvis impersonator, the Elie Landau case re Beatlemania, and the Marx Brothers’ case, both of which where in New York and involved plays. The fact that some impersonators may be violating other rights and nobody is bothering to sue them, doesn't mean that they have a legally recognized right to do this.

Q: Where does someone go to obtain permission to use a dead celebrity persona in a movie?

Jaime Wolf: First, figure out if you need to obtain permission at all. You may have to consult with an attorney, but please don’t simply leap to the conclusion that you need permission from the estate of every dead celebrity mentioned in your script. If you decide that you do, then follow the money! If the dead celeb is a writer, call the subsidiary rights department at his/her publisher. If the dead celeb is an actor, try the Screen Actors Guild. The folks who handle the dead celeb’s money should know who to reach and how.

Q: What constitutes "permission?" Do I need something in writing from the star or agent or would a phone call suffice?

Jaime Wolf: I’m old-fashioned, and you should be, too. Get permissions in writing and get a signed original. It may even make sense for the star/agent/heir to have their signature notarized so that there’s no doubt that they really were the one who signed the document.

Q: I know that famous people can take you to court if you depict them in an unflattering and/or untrue light. Could they still find fault with something that makes them look good and sue you just because you didn't ask them first if it was okay?

Mark Litwak: First, note that the laws in the USA are not the same as the United Kingdom and other countries. All of my remarks concern US law, and these principles don’t necessarily apply elsewhere. Whether you are famous or not, you can be depicted in an unflattering light and don’t necessarily have a cause of action. However, if the portrayal is defamatory, or invades your privacy, you may have a case. Either way, it is much harder for public officials or public figures to prevail because they must prove that the defendant acted with actual malice. This means the person publishing a defamatory remark either knew it was false or was reckless in publishing it.

Q: I have a great idea for a screenplay about Elvis only pretending to be dead so he can fulfill his ambition of being a secret agent. Since he really is dead, my project would obviously be a work of fiction and the product of my own imagination. Do I have to get permission from anyone to do this?

Daniel Steven: Generally, no. There is an area of law called “right of publicity” that protects living celebrities, and in some states, recently dead celebrities like Elvis, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray Elvis without defaming him or his family -- and it is absolutely clear your work is fiction -- you need not seek Elvis' estate’s permission. You would, however, need permission to exploit purely commercial “spin-offs” of the movie, such as t-shirts or posters. Particularly in the case of Elvis, you should consult a lawyer because of the numerous trademark, privacy, and copyright laws involved.

Part 2
By Christina Hamlett

Last month’s column introduced you to some of the pitfalls of celebrity grave robbing (figuratively speaking, of course). The following experts continue their discussion of which rights are yours for the taking…and which should be left to rest in peace.

Jaime Wolf of Pelosi, Wolf, Effron & Spates
New York (www.pwes.com)

Mark Litwak of Mark Litwak & Associates
Beverly Hills (www.marklitwak.com)

Daniel N. Steven of the Law Offices of Daniel N. Steven
Rockville, Maryland (www.publishlawyer.com)

Scott M. Goldberg, Esq. of William L. Whitacre & Associates, P.A.
Orlando, Florida (www.showbizlaw.net)

Q: How dead does a dead person have to be before you can use them in a script and not have to worry about lawsuits? And do these rules only apply to American-produced/distributed films or are they worldwide protections?

Scott Goldberg: There is no uniform law in the United States with regard to how many years the right of publicity survives the death of an individual. Some states have statutes that protect the right of publicity after death, while others do not. For example, under Florida Statutes, the right of publicity survives for 40 years after the death of an individual whereas under California Statutes the right of publicity survives for 70 years. As for the right of publicity in other countries, because each country has their own particular laws, one will have to look into the laws of that country where the individual lived and died in order to determine how many years the survivability of right of publicity lasts.

Q: What if I am descended from a famous person in history? If a filmmaker does a story about my ancestor and I don’t like their interpretation, can I sue them?

Mark Litwak: Rights to privacy and the right to protect your reputation (defamation) are considered personal rights in the U.S. and they do not descend to the estate or heirs. Thus, once you are dead, your heirs cannot sue for infringement of these rights. So, if you are George Washington the 5th, a direct descendant of our first president, and a writer does a book or script that falsely portrays George as a child molester, thief and criminal, you—as heir—cannot bring an action for defamation of your great, great grandfather.

Q: I am planning to do a documentary on a famous dead movie star who served with my father in the Navy. I have tons of photographs and will intersperse it with narrative and interviews of still-living vets who were on the same ship. Do I have to get permission to use these photos or even to talk about this person in something which is a non-fiction project for cable or public television?

Jaime Wolf: Make sure you have permission from whoever owns the copyright in the photos. That’s key. Permission from the blokes in the photos isn’t. That being said, if you intend to use one of those photos as the key art for the show or you intend to use it in advertising for the show, then it might be a good idea to get a sign-off from the folks in the picture.

Q: The plot of my MOW is about a Czech bodybuilder who marries into a prominent East Coast political family and decides to become an actor. Do the privacy rights of living luminaries extend to scripts that could be construed to have similarities to reality?

Scott Goldberg: The right of publicity is the right of an individual to be able to profit from and control their own name, likeness or other persona for the purpose of trade, or for any other commercial or advertising purpose. The right of publicity arose out of the privacy right laws established by prior statutes and case law. Exemption from such rights for an individual occurs when such use of living luminaries or political figures is newsworthy, in a bona fide news report, and in a newspaper, magazine, book, news radio or television broadcast where a legitimate public interest is involved. The rights of publicity and privacy most certainly apply to scripts.

Q: The first part of my indie takes place in a Hollywood restaurant. The main character is a waiter who is serving several well known celebrities their lunch. Since we don't have the budget to hire actual stars, could we just use celebrity lookalikes and not have to worry about getting sued by the real McCoys?

Daniel Steven: Again, the right of publicity applies. In general, the prohibition against commercial exploitation of a celebrity applies to look-alikes and impersonators as well as the Real McCoy -- but so does the First Amendment exception for fictional work.

Q: I have recently acquired the film adaptation rights of a non-famous person's story about the Depression. We have agreed to split the movie sale 50/50. The problem is, she keeps telling me to rewrite scenes because "that's not the way it really happened." When things like this occur, who has the final say-the person who lived the life or the one who is interpreting it for a commercial venue?

Mark Litwak: How collaborators share revenue is a different issue from how they share control and ownership of their work. Usually when a writer or producer acquires life story rights, they also acquire the right to freely change and fictionalize the story. Of course, if the subject is not famous, the writer could always change the names of the characters and fictionalize the entire thing.

Q: What does it take for a script to be exempt from the laws?

Scott Goldberg: In order for a script to be exempt from the laws of right of publicity and privacy, the purpose of the script must have a bona fide newsworthy intent, such as a documentary film might have. Because most scripts are created for a commercial purpose, the right of publicity will most likely apply and therefore one will need to seek permission from the particular individual upon which the script is based.

Q: Why aren't public figures "public domain" as far as using them as characters in an original film?

Jaime Wolf: To some extent, they are. It’s just that when you try to use their creative work (e.g., Picasso’s paintings) in a movie, then you must determine whether that work is in the public domain or protected by copyright. In the case of Picasso, some of his work (the early stuff) has fallen into the public domain. The rest of it hasn’t and is protected by copyright. So you can see how the question of which rights you need to obtain can become complex.

Q: I am doing a comedy where the character of God is heard but not seen. I know someone who can do a great impression of James Earl Jones, plus he'd do it for far less than the real James Earl Jones. The question is, could the real one come after me in court even if the credits at the end of my movie specifically say that God is played by my friend Larry?

Mark Litwak: Yes, the Bette Midler case had a celebrity voice imitator and this was held to infringe on Bette’s rights under California law. However, having a disclaimer might preclude a cause of action for unfair competition which is based on causing confusion to consumers about an origin of a production.

Q: An important scene in my film involves the characters watching "The African Queen" on their television set. Since it's such an old movie, can I go ahead and use it?

Daniel Steven: It’s not that old -- 1951, and thus still under copyright. Copyright law protects the reproduction and depiction of the film. If a scene from the film merely flashes across the scene, it probably would be considered incidental and might not be challenged, but greater use would certainly bring a response. Your characters can talk about the movie -- that comes under first amendment protection -- but you need to get permission from the copyright holder (the movie studio) to show a clip within your movie.

Q: Since most films have a disclaimer at the end of their credits that says any resemblance to real people is coincidental, why do I have to get special permission from anyone at all?

Daniel Steven: That disclaimer is aimed at inadvertent depiction of ordinary people whose right of publicity is usually broader than that of celebrities, to protect against claims of invasion or privacy. If you clearly are depicting a celebrity and the use is not protected by the first amendment exception, this disclaimer will not help you.

Q: TV shows like "Saturday Night Live" or stage productions like "Beach Blanket Babylon" are always spoofing political figures or popular stars. Do they pay someone for permission to do that or are spoofs exempt from this process?

Scott Goldberg: This question deals with what is commonly known as parody and satire. Under federal law, one may use an individual’s name and likeness to make social comments on, or to criticize, a celebrity’s or public figure’s actions without obtaining permission from the particular individual commented on, even if such use is for a commercial purpose. Most likely, a television show like “Saturday Night Live” by its very nature criticizes and comments on celebrities and political figures and therefore, such parody use of an individual’s name and likeness would be allowed without obtaining permission from the particular individual, or having to pay the individual. However, the rule of thumb here is that when in doubt as to whether using a celebrity’s or public figure’s name and likeness may be considered a parody, always seek proper permission first!

Former actress and director Christina Hamlett is the author of 17 books, 98 plays and musicals and several hundred magazine columns. She is also a script coverage consultant specializing in character development and snappy dialogue. For more information, she can be reached at scriptingsuccess@cswebmail.com.

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