With the critical and commercial success of such documentaries as Mad Hot Ballroom and the Academy Award-winning short documentary Freeheld, both documentarians and audiences are acknowledging the compelling power of the non-fiction biographical narrative form of storytelling. However, the mediamaker must grapple with a myriad of legal, business, aesthetic and often ethical issues when embarking on the biographical portrait
Although general releases are often sufficient for a mediamaker when interviewing secondary or peripheral people in a biographical project, both fiction and non-fiction producers have begun to recognize the need for a project’s subject to sign a more detailed “Consent and Depiction Release” or a life story agreement.
These agreements serve several purposes. No matter how “newsworthy” a subject may become and how powerful a First Amendment argument may be, mediamakers have recognized that these project must be covered by “Errors & Omissions” (“E & O”) insurance. “E & O” insurance is a form of coverage which protects mediamakers against claims which third parties may bring concerning libel and/or slander (i.e., defamation), invasion of privacy, right of publicity and copyright and trademark infringement. These policies are required as a “deliverable element” when mediamakers enter into agreements with sales agents, distributors and other licensees that will demand to be named as “additional insured” parties under such policies.
Although mediamakers generally will secure such coverage which will ensure that appropriate clearance procedures were followed and releases obtained, life story agreements should include a key provision in which a subject waives his or her rights to bring such claims. Such waivers will assist mediamakers in securing such “E & O” coverage.
In addition, mediamakers who will devote often years on a biographical project should receive assurances from the subject that he or she will not do anything which might undermine the project’s progress or value in the marketplace. In these “Consent and Depiction Releases” or life story agreements, mediamakers should request that they receive exclusive non-fictional (and, in rare cases, fictional) rights to depict or utilize elements of a subject’s life in a media project, thereby taking the subject “off the market” regarding possibly competing projects. However, in the fiction arena, there have been several examples of directly competing projects such as the rival network television movies concerning Amy Fisher who was accused and convicted of shooting her lover’s wife. These competing projects demonstrate that even “exclusivity” provisions in life story rights agreements are not absolute since one network secured Fisher’s rights, a second network secured the rights to Joey and Mary Jo Buttafucco’s story (of how Fisher had an affair with Joey and shot Mary Jo) and a third network used news and magazine articles and court transcripts to tell its own version of the Fisher tabloid saga. Therefore, a mediamaker may be obligated to obtain the exclusive rights not only to a subject’s life story but also to the life stories of other figures such as a subject’s family members and friends.
These agreements should provide a “window” period of exclusivity that would be subject to a mediamaker achieving certain goals or “milestones;” otherwise, subjects would be precluded from having their story told even if a mediamaker abandons the project or puts it on the proverbial “back burner.” Typical “milestones” generally would require a mediamaker to secure some or all of the financing for a project or to commence or to conclude principal photography within a certain time period from the signing of the agreement by the parties. If a mediamaker does not achieve such “milestone” within a given time period, then he or she would lose “exclusivity” concerning the subject’s life story and the subject could work with other mediamakers on potentially directly competitive projects. Mediamakers should not agree to be obligated to complete production on or have a project exploited within a certain period of time since there are several factors, beyond a mediamaker’s control, which would affect the ability of a project to be distributed such as changing programming and audience interests. Mediamakers should also never have their rights to produce a project non-exclusively contingent upon such “milestones”; otherwise, the mediamaker’s years of hard work and expended funds will be destroyed.
Life story rights agreements also should contain a “covenant of cooperation” provision in which a subject agrees to provide the mediamaker with access to any information in the subject’s possession (e.g., newspaper and magazine articles, photographs, personal notes and writings and other memorabilia). Still mediamakers should recognize the existence of the rights of privacy of third parties who may have written, sent or been mentioned in such private papers. Another aspect of this cooperation covenant would require the subject to use reasonable or best efforts to work with the mediamaker to obtain releases from such third parties as a subject’s family members and/or friends. Although a subject generally cannot guarantee success in such efforts, a subject can assist a mediamaker in producing the project and lessening a mediamaker’s possible legal exposure.
The other key element in a cooperation covenant is a provision to limit or prevent a subject, for a certain period of time, from entering into an agreement with other mediamakers who may want to produce potentially competing fiction or non-fiction projects, thereby undermining the mediamaker’s efforts to place the project into an often narrow marketplace.
There should be a “grant of rights” provision in these agreements which would permit the mediamaker to market and exploit the project throughout the world (or even the universe, especially with the growth of direct broadcast satellite delivery), in perpetuity and in any medium, “whether now known or hereafter devised” such as by theatrical release (if applicable), home video (including DVD and other formats), television (including network, syndication, cable, satellite, etc.) and by interactive and/or on-line means.
Another feature of such a grant of rights is the right by the mediamaker to secure the rights to a subject’s life story so that a mediamaker can enter into a financing/distribution agreement with a distributor, sales agent or licensee, either before, during or after production of the project. Mediamakers also should have the right to use a subject’s name, voice, nickname or likeness not only in the project itself but also in the advertising and promotion of the project. These rights and the other provisions of the life story rights agreement should be assignable to a mediamaker’s successors and assigns such as a sales agent, distributor or licensee. These rights should be allowed to be exercised within a mediamaker’s sole discretion as much as possible; otherwise, a mediamaker may have difficulty securing a financing or a distribution agreement for the project.
One of the most important issues in the life story rights agreement concerns the extent to which a subject may have either consultation or approval rights concerning aspects of a project. This issue forces the mediamaker to balance the need to form a relationship built on trust with a subject with the mediamaker’s ability to produce a project with a minimum of interference by a subject. This concern also includes how a mediamaker shall address his or her interests with those of a subject’s family members and friends. Mediamakers, only in the rarest of cases, should grant any approval rights to a subject for the reasons addressed previously in this article; however, mediamakers can grant “meaningful consultation” rights (i.e., a subject’s right to review and comment on the project) either throughout the course of the project or just prior to when the final version of the project is available for screening. While some mediamakers will listen to a subject’s comments and alter or edit their project accordingly, other mediamakers will listen and decide not to include a subject’s comments or suggestions in a project.
Some mediamakers, such as Jennifer Fox (who produced and directed the commercially and critically successful “An American Love Story”), will take the potentially problematical and risky step of agreeing to remove any part of a project that may cause a subject significant concerns prior to the project’s distribution or release. These decisions are often based on the relationship between a mediamaker and a project’s subject.
A mediamaker’s agreement should also address the mediamaker’s right to produce and/or license others to produce such ancillary products as companion books, audio recordings and, in some cases, merchandising. These rights are often granted unconditionally to the mediamaker and, in other cases, subject to good faith negotiations by parties, especially if the parties cannot reach an agreement concerning this issue at the time of entering into the agreement.
There should be a clear understanding of whether a mediamaker has acquired solely non-fiction rights to a subject’s life story or fiction rights as well. Mediamakers should recognize that a subject may want to grant these rights to different parties, especially if one area is within a mediamaker’s expertise or experience. In addition, the agreement’s terms can vary under each scenario since the markets for fiction and non-fiction rights are different in nature and scope. Still non-fiction mediamakers may want to create “re-enactments” of certain parts of a subject’s life story. If a mediamaker wants the right to produce such re-enactments, then a provision concerning fictionalization should be included in the agreement.
One of the thorniest provisions in the life story rights agreement concerns whether and how a subject should be compensated for his or her rights as well as involvement in a mediamaker’s project. Some mediamakers will maintain that such payment or even potential payment often can compromise a project’s integrity by introducing a monetary motive, while other mediamakers would argue that compensating a subject for his or her time and participation is simply a pragmatic economic reality, especially given such factors as a subject’s time commitment during a project and the proliferation of outlets for such biographical projects on basic and pay cable as well as on home video.
Both mediamakers and subjects must recognize the economic realities concerning non-fiction projects: that for every Roger & Me or Hoop Dreams, there are many projects which lose money for the mediamaker or just break even since the revenue streams and markets for non-fiction are rather small and limited compared to those found with fiction projects.
While some subjects (and their advisors) often may request that their compensation should be at least a fee which is taken from a project’s budget, they do not recognize the fact that such projects are often funded in increments over a period of time, thereby reducing the likelihood that there will be upfront fees for subjects. Mediamakers and subjects, therefore, often enter into profit-sharing or deferment arrangements in which the subject would be paid either a fixed sum or a percentage of the monies derived from the project’s exploitation often after a project’s costs have been recouped or repaid. Since the likelihood that a project shall generate such “profits” is remote, the mediamaker’s offering of such potential profits is often a sign of good faith by the mediamaker to acknowledge the importance of a subject’s involvement in a project.
Although certain mediamakers and subjects are reluctant to enter into this type of agreement, this agreement is not only prudent from a business and legal standpoint but also can be one of the first steps for a mediamaker and a subject to establish a relationship based on openness, fairness and trust.