Buying life stories is a big business. Anyone’s story is fair game — war veteran, whistle blower, acne survivor. One attorney with experience in this area reports the price to buy a life story for use in a television movie “might be $50,000 to several hundred thousand dollars. For feature films, it could be two times or more that amount. If the subject is famous, the figure could be considerably higher .”
I knew someone who, in his striving to become a movie producer, spent years scouring tabloid newspapers for tragic stories with uplifting endings. When he found a good one, he sought out the survivor and paid for an option to buy her life story and pitch it to Hollywood studios. When a studio picked up the option, he’d be a real Producer at last.
Anyway, that was his plan.
Mostly he met a lot of tragic people, and a few charlatans who’d thought of the life selling idea before he did. The options only gave him a limited time to make his pitch, and eventually he had the choice of paying to renew the option, or watching his hot prospect slip away.
The legal form he used was 2 pages in close-spaced type. Mostly it consisted of a promise to sell a life story plus assurance it hadn’t already been sold to someone else. He paid $1,300 for that form — 10 years ago — and was very proud of it.
It was the stupidest form I ever saw.
Selling the Brooklyn Bridge
Everyone knows the Brooklyn Bridge joke:
- * “Hey, I just ordered an antigravity bicycle. This guy I know swears is works!”
- * “If you believe that, I’ve got a bridge to sell you.”
No one has laughed at that joke in 50 years, but it makes a point: you can’t sell something you don’t own, and people don’t own their life stories. To claim to own something, you’ve got to be able to explain why. As examples:
- * A company that’s famous for publishing a series of books under a familiar name (“Home surgery for Dummies”) could, if it wanted, sell to another publisher the right to publish a book under that name (“Aneutronic Fusion for Dummies”) as long as it owns the “… FOR DUMMIES” trademark.
- * An independent author can sell the right to publish a book he wrote because, as the author, he owns a copyright in it. The copyright gives him (among other things) the exclusive rights to copy and distribute the book — which is mostly what publishing is — and because he owns those rights he can sell them.
- * An independent programmer can sell the right to publish his software program because (much like the book author) he owns a copyright in it.
Except selling software is more complicated than that. A company that publishes software has to do more than copy and distribute — it needs also to give the people who buy the program the right to use it. The right to use starts with the programmer, who gives it to the publisher, who gives it to end-users — which is a fine system as long as the programmer owns the right in the first place.
But does he?
- * Ordinarily when you use software your computer copies part of it temporarily into memory. That probably brings the right to use software within the Copyright Act’s exclusive right to copy.
- * Ordinarily software is distributed only as machine readable object code. That preserves the secrets in the source code (what the programmer actually wrote). The owner of secrets owns (among other things) the exclusive right to use them (at least until they become public, or are independently discovered), and because he owns it, he can sell it.
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 B. Kramer, Esq.
Got a subject you’d like to see explored? I welcome suggestions!
For discussion purposes, not legal advice.