untitled

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 1 28-JUL-23 16:30

The Life Story Rights Puzzle

Jorge L. Contreras* and Dave Fagundes†

ABSTRACT

The life story deal is a staple of Hollywood entertainment law practice.

Studios seeking to make a docudrama (a feature based on real life facts but

including dramatized elements) often do so only after securing life story

rights from the subject of the production. Yet “life story rights” are a fic-

tion. No source of law vests exclusive rights in the facts that comprise the

narratives of our lives. Despite popular misconceptions, neither copyright,

trademark, privacy, nor the right of publicity give individuals the exclusive

right to exploit facts concerning their lives. On the contrary: in the United

States, First Amendment considerations severely limit any legal constraint

on expressive speech, including dramatic depictions. So why do production

* James T. Jensen Endowed Professor for Transactional Law and Director,

Program on Intellectual Property and Technology Law, University of Utah S.J.

Quinney College of Law.

† Baker Botts LLP Professor of Law and Research Dean, University of Houston

Law Center. The authors thank Esther Johnson, Victoria Carrington and Dan

Berger at the University of Utah for research assistance. We are grateful to 13

entertainment industry professionals who generously agreed to be interviewed for

this project during 2021 and 2022. We thank Emma Perot for access to her PhD

dissertation on the commercialization of persona. This article has benefitted from

presentation and discussion at the 2022 M3 Intellectual Property Workshop, the

2022 Annual Meeting of the Association of Law, Property, and Society (ALPS), the

2022 IP Scholars Conference (IPSC), the Southeastern Association of Law Schools

(SEALS) 2022 Annual Conference, the Trademark and Unfair Competition

Scholarship Roundtable at University of Pennsylvania, and faculty workshops at the

University of Houston and Washington University in St. Louis, as well as

comments and feedback from numerous people including Kevin Collins, Rebecca

Curtin, Nestor Davidson, Brian Frye, Mark Lemley, Michael Madison, William

McGeveran, Rafael Pardo, Neil Richards, Mark Roark, Jennifer Rothman and

Andres Sawicki.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 2 28-JUL-23 16:30

154 Harvard Journal of Sports & Entertainment Law / Vol. 14

companies pay amounts that are sometimes in the millions to acquire these

“rights”? Drawing on interviews with practitioners across the entertainment

industry, we approach this puzzle by identifying the principal components

of life story rights: a grant of (illusory) rights, a waiver of liability claims,

guaranteed access to the subject, and an agreement to work exclusively with

the acquirer. The modularization of these distinct jural relations under the

rubric “life story rights” is the result of successful private ordering within a

fast-moving and highly competitive industry, thereby enhancing transac-

tional efficiency through reduced information costs, signaling and litigation

avoidance.

CONTENTS

Introduction .............................................. 155

I. No Right to One’s Story ............................ 160

A. Copyright ......................................... 162

B. Right of Publicity .................................. 164

C. Public Disclosure of Private Facts ..................... 167

D. Defamation ........................................ 169

E. False light ........................................ 171

F. Trademark ........................................ 173

G. Conclusion ........................................ 173

II. Solving the Life Story Puzzle ....................... 174

A. History of Docudramas and Life Story Rights ........... 174

B. The Mechanics of Acquiring Life Story Rights ........... 179

1. Fictionalization ............................... 180

2. From Whom Are Life Story Rights Acquired? . . . 182

3. Insurance Coverage ............................ 184

4. Life Story Rights Across Media ................ 186

C. Basic Elements of a Life Story Deal ................... 187

1. Grant of Rights .............................. 187

2. Liability Waiver .............................. 189

3. Exclusivity ................................... 190

4. Access and Cooperation ........................ 192

5. Valuing Life Stories: Compensation ............. 194

6. Granularity ................................... 196

7. Creative control ............................... 197

D. Life Story Acquisitions versus Releases and Other

Agreements ........................................ 198

III. Deconstructing Life Story Rights .................. 200

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 3 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 155

A. Life Story Rights as Private Ordering – The Interplay of

Law and Norms ................................... 200

B. Transactional Efficiency.............................. 205

1. Modularity, Standardization and Information Costs

............................................. 205

2. Litigation Avoidance .......................... 208

3. The Signaling Function of Life Story Acquisitions

............................................. 209

Conclusion ................................................. 210

Introduction

One of the breakout hits of early 2022 was Inventing Anna.

The Netflix

series recounted the story of Anna Delvey, purportedly a German heiress

who wormed her way into New York’s social and financial elite circles. In

fact, “Anna Delvey” was actually Anna Sorokin, a Russian woman who was

eventually jailed for fraud based on her subterfuge.

Inventing Anna was

widely perceived as a true story and was compelling, in part, for that reason.

But was it true? The answer to the question lies in the distinctive niche that

such productions occupy in the entertainment world.

Inventing Anna is a docudrama. Docudramas are rooted in true facts,

hence part documentary, but are also substantially fictionalized, hence part

drama.

For this reason, ads for the show claimed not that it was a true story,

See Kelli Boyle, ‘Inventing Anna’ Tops Every Nielsen Streaming Ratings Chart in

Second Week, TV Insider (Mar. 18, 2022), https://www.tvinsider.com/1036973/in-

venting-anna-tops-nielsen-streaming-ratings/.

Inventing Anna (Netflix 2022). Among other things, Sorokin hoodwinked a

series of minor New York celebrities (former child star Macaulay Culkin, pharma

bro Martin Shkreli and Fyre Festival promoter Billy MacFarland) and wheedled her

way into a surprising number of unpaid hotel stays and lines of credit.

Seale v. Gramercy Pictures, 964 F. Supp. 918, 923 (E.D. Pa. 1997) (quoting a

definition of docudrama in Davis v. Costa-Gavras, 654 F. Supp. 653 (S.D.N.Y.

1987) as “a dramatization of an historical event or lives of real people, using actors

or actresses . . . utiliz[ing] simulated dialogue, composite characters, and a telescop-

ing of events occurring over a period into a composite scene or scenes”). See also Tom

W. Hoffer & Richard Alan Nelson, Docudrama on American Television, 30 J. Univ.

Film Assn. 21 (1978) (defining docudrama as a “blend of fact and fiction which drama-

tizes events and historical personages from our recent memory”). Other terms for

film/television productions that dramatize recent real-life events include story docu-

mentary, dramatic reconstruction, faction, reality-based film, murdo-fact, fact-based

drama and biopic. See Alan Rosenthal, Why Docudrama? Fact-Fiction on

Film and TV (1999). For the sake of consistency, we use the term “docudrama” to

describe this category. We intentionally avoid the term “biopic” (biographical pic-

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 4 28-JUL-23 16:30

156 Harvard Journal of Sports & Entertainment Law / Vol. 14

but that it was “inspired by a true story.” And opening-scene chyrons coyly

inform viewers that “This whole story is completely true

—

except for all the

parts that are totally made up.”

Despite (or perhaps because of) its ambiva-

lent relationship with the historical record, the docudrama is one of the

most popular genres in film and television and has been for decades.

Because of their popularity, studios compete fiercely to make and re-

lease the leading docudramas each season. This competition manifests in

races to secure “life story deals” with the subjects of compelling narratives.

These deals are understood within the entertainment industry to reserve to

the acquirer the exclusive right to make a production based on that subject’s

life. As such, life story deals are the subject of industry gossip and news,

often earning subjects substantial paychecks. Netflix, for example, paid

Anna Sorokin $300,000 for the exclusive right to dramatize her story.

For

all of these reasons, life story deals are big business.

ture), as it is generally understood to encompass depictions of historical, as well as

contemporary, subjects. See George F. Custen, Bio/pics: How Hollywood

Constructed Public History (1992). While some biopics are docudramas, many are

not.

Inventing Anna, supra note 2. This line seemingly pays homage to Kurt Von-

negut’s famous opening lines to Slaughterhouse-Five, “All this happened, more or

less. The war parts, anyway, are pretty much true.” Kurt Vonnegut, Slaughter-

house-Five (Random House) (1969).

See Section II.A, infra. There is no comprehensive bibliography of docudrama

productions, though some related compilations give a sense for the large body of

this work. See Eileen Karsten, From Real Life to Reel Life: A Filmography

of Biographical Films (1993) (cataloging over 1,000 biographical films), Michael

G. Stevens, Reel Portrayals: The Lives of 640 Historical Persons on Film,

1929 through 2001 (2003) (cataloging 640 individuals about whom two or more films

have been produced). For more recent, though selective, lists, see 71 Must-Watch

Movies Based on True Stories, Town & Country, Sept. 27, 2022, https://

www.townandcountrymag.com/society/g15907978/best-movies-based-on-true-sto-

ries/; Samuel R. Murrian, 65 of the Best Movies Based on True Stories

—

Must-Watch

Movies From History! Parade, June 20, 2022, https://parade.com/1253091/

samuelmurrian/best-movies-based-on-true-stories/; Matthew Singer, The 20 best mov-

ies based on true stories, Time Out, Mar. 15, 2022, https://www.timeout.com/film/

best-movies-based-on-true-stories. Although not definitive, the Wikipedia entries

for List of films based on actual events, https://en.wikipedia.org/wiki/

List_of_films_based_on_actual_events (visited Apr. 17, 2022) and List of films based

on actual events (2000

–present)

, https://en.wikipedia.org/wiki/

List_of_films_based_on_actual_events_(2000–present)#2020 (visited Apr. 17,

2022) are informative.

Vicky Baker, Netflix and Anna Delvey: The Race to Secure the Story of New York’s

‘Fake Heiress’, BBC News (Feb. 20, 2021), https://www.bbc.com/news/world-us-ca-

nada-56113478. Paying Sorokin for her story raised complications under New

York’s “Son of Sam” law, N.Y. Exec. Law § 632-a (McKinney 2001), which re-

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 5 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 157

There’s only one problem: “life story rights” do not exist.

They have

been referred to by entertainment industry insiders as a legal fiction,

a mis-

nomer

and an urban myth.

No source of American law secures to individ-

uals the exclusive right in the facts that comprise the narrative of their lives.

Quite the contrary: copyright law explicitly reserves all facts, including the

facts that make up life stories, to the public domain. Nor does trademark

law prevent studios from freely making features based on true life facts,

absent confusion about false endorsement or source of origin. Moreover,

courts have generally interpreted the First Amendment’s Speech Clause to

bar any laws from restricting expressive speech based on its content (life

stories or otherwise).

There are state law tort theories that pose some threat of liability to

studios that make unauthorized docudramas, but conceptually this liability,

even if found, does not amount to a “life story right.” That is, the ex post

risk of tort liability is not the equivalent of, nor does it give rise to, an ex

ante property right in the content of one’s life narrative. And most of these

causes of action pose only remote liability risks to studios willing to make

quires that victims be notified when incarcerated felons profit from depictions of

their crimes. According to press reports, Netflix complied with the law and paid

funds owed to Sorokin into an escrow account while she was in prison. Baker, supra;

Emma Tucker, New York’s ‘Son of Sam’ Law Invoked in German Heiress Fraud Scheme,

Wall St. J. (Dec. 28, 2020), https://www.wsj.com/articles/new-yorks-son-of-sam-

law-invoked-in-german-heiress-fraud-scheme-11609167604.

See, e.g., Bob Tarrantino, Life story rights: They don’t exist, but you should still get

them, Entertainment & Media Law Signal, Dec. 1, 2020, https://

www.entertainmentmedialawsignal.com/life-story-rights-they-dont-exist-but-you-

should-still-get-them/; Eric Goldman, The True Story About Life Story Rights,

UpCounsel Blog (2019), https://www.upcounsel.com/blog/true-story-life-story-

rights (“The truth is that life story rights do not exist.”). See also Emma Perot, The

Interaction of the Influences of Law, Contract, and Social Norms on the Com-

mercialisation of Persona: A Comparative Empirical Study of The United Kingdom

and the United States of America (2020) (Ph.D. dissertation, King’s College

London) (similar views expressed by interview subjects).

Perot, supra note 7, at 200 (quoting anonymous California interview subject).

Anonymous Interview #8 at 2 (calling life story rights a misnomer); Anony-

mous Interview #5 at 4 (“[L]ife rights is one of the biggest misnomers in the en-

tertainment industry”).

See Anonymous Interview #4 at 7 (calling the idea of life story rights “almost

like this urban myth”).

E.g., De Havilland v. FX Networks, LLC, 230 Cal. Rptr. 3d 625, 630 (2018)

(“Whether a person portrayed in one of these expressive works is a world-renowned

film star

—

’a living legend’

—

or a person no one knows, she or he does not own

history. Nor does she or he have the legal right to control, dictate, approve, disap-

prove, or veto the creator’s portrayal of actual people.”).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 6 28-JUL-23 16:30

158 Harvard Journal of Sports & Entertainment Law / Vol. 14

unauthorized docudramas. Defamation and invasion of privacy protect

reputational and dignitary interests, but these theories require plaintiffs to

overcome enough substantive hurdles that the risk of liability is low and

cases involving successful recoveries are nearly nonexistent.

The right of

publicity, which allows individuals to recover some of the value created by

unauthorized uses of their identities, represents the most plausible basis of

recovery for a subject incensed by an unlicensed feature based on their life,

though even these claims have seldom been successful against docudrama

productions.

Life story rights thus present a puzzle: why do production companies

pay considerable sums to acquire rights that don’t exist? This article offers a

solution to the puzzle. While life story deals do not convey a recognized

property interest, like a copyright or trademark, they do establish a set of

privately ordered contractual commitments that can be important in the

production of works based on true stories. Life story rights, as the term is

commonly used throughout the entertainment industry, emerge from acqui-

sition contracts (and related option agreements) that generally embody four

sets of related provisions:

(1) the producer’s authorization to use and adapt factual events concerning

the subject,

(2) the subject’s release of the producer from liability for claims arising

from the production, whether for defamation, violation of the right of pub-

licity, or otherwise,

(3) a prohibition against the subject’s cooperation with any other producer

on a similar project and

(4) the producer’s access to the subject for consultation and interviews, as

well as a commitment to provide further information and/or documents,

photographs and other artifacts.

In short, in exchange for a payment, the purchaser of life story rights

obtains a contractual package containing an authorization, a release, exclu-

sivity and access.

In this article, for the first time, we excavate the theoretical underpin-

nings of life story transactions and analyze the systemic implications of this

longstanding entertainment industry practice. Our solution to the life story

rights puzzle yields further descriptive insights. First, it contributes to the

growing literature about the prevalence of norms-based regulation of prop-

erty and business relationships. The practice of enforcing life story rights

seems to be a product of such norms. While one would expect that these

See Sections I.C and I.D, infra.

See Section I.B, infra.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 7 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 159

agreements are occasionally breached or are at least the site of strategic be-

havior between competing studios, our interview subjects reported that in-

dustry actors exhibit near-perfect compliance with them, and reported that

cases involving breach are vanishingly rare. Interview subjects suggested

that the high rate of fidelity to these agreements was due to industry partici-

pants’ aversion to sanctions and exclusion. By contrast, studios appear to

acquire life story rights not due to customary pressures, but from cost-bene-

fit analyses suggesting that they are justified (indeed, in some cases where

they are not warranted, studios eschew them). This analysis reveals that both

law and norms are at play in the domain of life story rights, and illustrates

that the two can function as complementary rather than mutually exclusive

forms of regulation.

Second, we show how the life story phenomenon connects to scholarly

observations of modularization in transactional law. The bundling of con-

tractual elements under the unitary label of life story rights exemplifies how

a complex set of contractual arrangements can be simplified by the deploy-

ment of a modular approach. Henry Smith observes that the modularization

of rights reduces information costs, as parties need only observe and compre-

hend the module, rather than its constituent elements, thereby facilitating

transactions in modularized assets.

This account shows why life story

rights took their distinctive form: as means to lower transaction costs, in-

crease transactional efficiency and provide important signals to the market.

Finally, we explore why life story rights are acquired in some

docudrama productions but not in others. For example, while Netflix took

pains to acquire rights to Anna Sorokin’s story for Inventing Anna, the pro-

ducers of The Social Network (concerning Mark Zuckerberg and the founding

of Facebook) and The Crown (concerning Queen Elizabeth II and the British

royal family) did not. In interviews that we conducted with industry insid-

ers, most conceded that life story rights are acquired in a majority, but not

all, docudrama productions, with the percentage varying based on the type

of production, producer and story.

We conclude that producers are

Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1708

(2012). See also Carol M. Rose, Modularity, Modernist Property, and the Modern Archi-

tecture of Property, 10 Prop. Rights J. 69, 70-71 (2022) (noting such modularized

architectures “save[ ] us all from spending a great deal of time figuring out what we

can and cannot do vis-´a-vis all kinds of resources”).

Anonymous Interview #4, follow-up email Oct. 27, 2022 (80-90%), Anony-

mous Interview #7, follow-up email Nov. 10, 2022 (70%), Anonymous Interview

#10 (“more likely than not”), Anonymous Interview #11 (30-70%).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 8 28-JUL-23 16:30

160 Harvard Journal of Sports & Entertainment Law / Vol. 14

pragmatists who carefully assess both benefits and risks before deciding to

acquire life story rights from the subject(s) of a particular production.

Our analysis draws on a comprehensive review of the case law concern-

ing life story rights, together with adjacent topics such as copyright, trade-

mark, the right of publicity and right of privacy, as well as interviews that

we conducted with experienced in-house counsel at television and motion

picture production companies and law firm practitioners in the entertain-

ment industry.

The remainder of this article proceeds as follows: Part I summarizes

existing U.S. law governing the production of works based on real persons

and events. It begins with a review of First Amendment principles applica-

ble to the relation and adaptation of factual events, then discusses in turn

various doctrines that have been raised, mostly unsuccessfully, to attempt to

control or limit the production of such works – copyright, right of public-

ity, right of privacy, defamation, and trademark. Part II summarizes the

history and contours of life story transactions, including the types of produc-

tions for which life story rights are sought and the key contractual elements

of life story rights transactions. Part III then explains the private ordering

mechanisms that led to the emergence of life story deals and describes how

they have enhanced transactional efficiency through reduced information

costs, signaling and litigation avoidance.

I. No Right to One’s Story

Life story deals are a familiar and longstanding practice of the en-

tertainment industry. Yet, as we show in this Part, their mere existence is

confounding because, as a matter of law, “life story rights” do not exist, and

See Christian Simonds, When To Acquire Life Rights In Biographical Content Battle,

Law360, Sep. 13, 2022 (outlining legal considerations favoring and disfavoring ac-

quisition of life story rights).

We conducted semi-structured interviews of 13 individuals using Zoom video

conferencing. One or both of the authors conducted each interview, which lasted

from approximately 30 to 60 minutes. All interviews were transcribed. The inter-

view subjects included 8 entertainment attorneys in private practice, 4 in-house

attorneys at major motion picture or television production studios, and one inde-

pendent producer. Ten subjects were based in California, two in Utah and one in

Japan (working for a U.S. studio). All subjects had at least ten years of experience in

the entertainment industry and indicated that they had been personally involved in

the drafting and negotiation of more than ten life story rights transactions.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 9 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 161

there is no vested property interest in the facts that comprise one’s life

story.

On the contrary, our constitutional tradition protects expressive speech

regardless of subject matter. The First Amendment broadly prohibits states

from enacting laws that abridge the freedom of speech.

Laws that target

speech based on its communicative content

—

content-based restrictions

—

are presumptively unconstitutional and may be justified only if the restric-

tions are narrowly tailored to serve compelling state interests.

As such, the

First Amendment creates a strong presumption favoring expressive speech,

even in the face of otherwise applicable rights of publicity and privacy.

one California appellate court recently explained in rejecting a legal chal-

lenge to an unauthorized docudrama,

Authors write books. Filmmakers make films. Playwrights craft plays.

And television writers, directors, and producers create television shows and

put them on the air

—

or, in these modern times, online. The First Amend-

ment protects these expressive works and the free speech rights of their

creators. Some of these works are fiction. Some are factual. And some are a

combination of fact and fiction . . . Whether a person portrayed in one of

these expressive works is a world-renowned film star

—

“a living leg-

end”

—

or a person no one knows, she or he does not own history. Nor does

she or he have the legal right to control, dictate, approve, disapprove, or

veto the creator’s portrayal of actual people.

This is, of course, only one way of understanding what it may mean to have a

life story right. We choose this framing because both the interview subjects we

spoke to and the popular conversations we observed seemed to invoke the idea of life

rights in this vested property sense. We discuss later how one may think of these

agreements as creating, if not transferring, other kinds of rights. See infra Part II.

Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

Id.

See infra Parts I.B and I.C. See also Robert C. Post & Jennifer E. Rothman, The

First Amendment and the Right(s) of Publicity, 130 Yale L.J. 86, 150-51 (2020) (“The

First Amendment requires that in public discourse the public be constitutionally

entitled to discuss whatever public information comes to its attention, including the

names and images of persons. It contradicts the constitutional function of public

discourse to make speakers pay for this privilege.”).

De Havilland v. FX Networks LLC, 21 Cal. App. 5th 845, 849-50 (2018)

(action brought by actress Olivia de Havilland against FX Networks with respect to

its docudrama miniseries Feud: Bette and Joan (2017). The series depicted the rivalry

between film stars Joan Crawford and Bette Davis. An actress portraying de Havil-

land appeared in two fictionalized scenes spanning less than 17 minutes of the 392-

minute miniseries).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 10 28-JUL-23 16:30

162 Harvard Journal of Sports & Entertainment Law / Vol. 14

Laws that could give rise to claims based on the production of an expressive

work such as a docudrama are thus subject to strict scrutiny under the First

Amendment.

But even though producers should be in the clear to make docudramas

without significant legal hurdles, they often seek subjects’ agreement before

doing so. In this Part, we explore the paradoxical pervasiveness of life story

rights, considering causes of action that have been used to challenge the

production of dramatized versions of individual life stories. We show that

while most of these theories range from marginal to completely unworkable,

one

—

the right of publicity

—

has more purchase in doctrine and case law.

Nevertheless, the propensity for litigation in Hollywood supports producers’

acquisition of life story rights, if only as a prophylactic measure.

A. Copyright

The events that make up our lives, whether salacious or mundane, en-

joy no copyright protection. Copyright inheres in creative expression that an

author generates, such as a novel, film, or musical composition.

Con-

versely, facts

—

mere data about the world that do not originate with any

author

—

are not copyrightable.

Though researchers may expend significant

effort to unearth previously unknown facts, this does not change matters

—

there is no “sweat of the brow” copyright conferred simply because one

invested effort in producing a work that is not otherwise original.

Thus,

when an author who laboriously gathered facts surrounding the destruction

of the airship Hindenburg and developed theories surrounding the perpetra-

tors’ motives sued the producers of a film that relied on those facts, the

Second Circuit held that “where, as here, the idea at issue is an interpreta-

tion of an historical event, our cases hold that such interpretations are not

copyrightable as a matter of law . . . Such an historical interpretation,

whether or not it originated with [the author], is not protected by his copy-

right and can be freely used by subsequent authors.”

Originality, not ef-

As one commentator notes, life story acquisitions are, to a large degree, done

for “peace of mind.” Eriq Gardner, Inside HBO’s Lakers Headache, Puck News, Apr.

25, 2022, https://puck.news/when-tv-shows-lie-inside-hbos-lakers-headache/.

See 17 U.S.C. § 102(a).

Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir. 1981)

(“Obviously, a fact does not originate with the author of a book describing the fact.

Neither does it originate with one who ‘discovers’ the fact.”).

See Feist Pubs., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 352-54 (1991)

(rejecting “sweat of the brow” copyright); Miller, 650 F.2d at 1371-72 (stressing

that research itself is not copyrightable).

Hoehling v. Universal City Studios, 618 F.2d 972 (2d Cir. 1980).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 11 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 163

fort, is “the sine qua non of copyright.”

Because the details of all life stories

are facts, they lie well outside copyright’s domain.

So while a docudrama

may make for a gripping viewing experience, and may contain audiovisual

expression that merits copyright protection, any true facts that comprise the

core narrative of that docudrama remain part of the public domain, free for

all to use.

The lack of copyright in facts does not, however, necessarily dissuade

aggrieved parties from threatening or initiating legal action. For example,

the estate of the author of the 1983 magazine article that inspired the 1986

film Top Gun recently sued the producers of the 2022 blockbuster sequel Top

Gun: Maverick.

That article factually profiled Yogi and Possum, two brash,

young F-14 fighter pilots at the Navy Fighter Weapons School known as

Top Gun. To our knowledge, the sequel used no original lines, or even

characters, from that article, thereby eliminating the typical grounds for a

claim of copyright infringement. But because the rights acquired by the

producers of the 1986 film apparently terminated in 2019, before produc-

tion of Top Gun: Maverick was completed, the successors in title to the au-

thor’s copyright sued the producers of the sequel for copyright

infringement. That case is currently pending and could lead to a monetary

settlement or, at a minimum, substantial attorneys’ fees, despite its tenuous

Feist, 499 U.S. at 345.

See, generally, Jacqui Gold Grunfeld, Docudramas: The Legality of Producing Fact-

Based Dramas – What Every Producer’s Attorney Should Know, 14 Hastings Comm. &

Ent. L.J. 483, 511-15 (1991) (analyzing copyright issues in docudramas).

E.g., Miller, 650 F.2d 1365 (not infringement for studio to make film about

victim’s kidnapping without permission from her or from author of news articles

about the incident); cf. Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) (purported

co-author acquired no copyright interest in script about historical person by ac-

cumulating information about her).

Yonay v. Paramount Pictures Corp., Case No. 22-CV-03846 (C.D. Cal., filed

Jun 6, 2022). Ehud Yonay’s article “Top Guns” appeared in the May 1983 issue of

California magazine.

A similar copyright claim was made under English law in 1994, when Sir

Stephen Spender sued the publisher of a novel that was allegedly based on Spender’s

autobiography, published in 1951. The case settled with the publisher’s agreement

to withdraw the novel from the market. See David Streitfeld, Publisher Kills Novel

over Pilfered Plot, Wash. Post, Feb. 17, 1994, https://www.washingtonpost.com/

archive/politics/1994/02/17/publisher-kills-novel-over-pilfered-plot/765ca239-

abc9-40c8-9ea9-b9403f97af8b/ (the authors thank Professor Michael Madison for

bringing this episode to our attention).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 12 28-JUL-23 16:30

164 Harvard Journal of Sports & Entertainment Law / Vol. 14

B. Right of Publicity

The right of publicity is a state-law cause of action that enables indi-

viduals to recover a share of the economic value created when their identities

are used without consent.

Thus, unlike defamation and invasion of privacy,

and like copyright and trademark, this cause of action seeks predominately

to advance a plaintiff’s financial rather than dignitary interests.

Thus,

though the right of publicity is not an IP right, per se,

we consider it to be

IP-adjacent.

The right of publicity is notoriously fragmented. It is broadly con-

strued in many jurisdictions, more narrowly in others, and some states have

no right of publicity at all. Some states extend the right of publicity to all

people, while others limit it to public figures.

Amid this disarray, how-

ever, one thing is clear: attempts are being made to expand the right of

publicity further.

It was once used almost exclusively to prevent unautho-

rized uses of plaintiffs’ personae in commercial settings

—

hence Johnny Car-

son’s successful right of publicity claim against a company that sought to

brand a portable toilet with his famous tagline “Here’s Johnny!”,

and

singer Bette Midler’s successful publicity claim against Ford Motor Com-

pany, which used a voice impersonator singing one of her most famous songs

in a car commercial.

In its more expansive iterations, rights of publicity

extend not only to unauthorized uses of plaintiffs’ identities in consumer

See Restatement (Third) of Unfair Competition § 46 (Am. L. Inst. 1995).

This was not always the case. As Jennifer Rothman has illustrated, the right of

publicity and the right of privacy share a common origin and used to vindicate

similar interests. The emergence of a distinct right of publicity giving individuals a

property-like interest in their personae emerged only when the two causes of action

diverged during the mid-to-late twentieth century. Jennifer E. Rothman, The

Right of Publicity 11-44 (2018) (showing the shared origin of these causes of action in

right of privacy law of the early twentieth century).

See Ratermann v. Pierre Fabre USA, Inc., 2023 WL 199533 (S.D.N.Y. 2023)

(claims under the New York Civil Right Law (right of publicity) “sound in privacy,

not intellectual property” for purposes of the exemption from liability under Sec-

tion 230 of the Copyright Act).

See Rothman, supra note 34, at 96-98 (describing the patchwork of U.S.

rights of publicity as “the state(s) of disarray”).

Id. at 87 (explaining that after the Supreme Court’s decision in U.S. v.

Zacchini, “the right of publicity has proliferated across the United States and in-

creasingly across the globe, and expanded in its breadth”).

Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983).

Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 13 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 165

products, but also in expressive works.

And while the right of publicity

conceptually remains a tort, courts have begun to imbue it with property-

like characteristics such as transferability and heritability.

As the breadth of the right of publicity has grown, plaintiffs have in-

creasingly sought to invoke it to recover a share of the value generated by

nonconsensual uses of their identities in film and other creative media. For

the most part, these suits have failed on First Amendment grounds.

Films

and television shows are generally considered to be expressive speech that

merits greater protection under the First Amendment than products and

advertising.

The Ninth Circuit’s recent rejection of a right of publicity

claim against the producers of the film The Hurt Locker clearly articulates

this point. The film, the court held, “is speech that is fully protected by the

First Amendment, which safeguards the storytellers and artists who take the

raw materials of life

—

including the stories of real individuals, ordinary or

extraordinary

—

and transform them into art, be it articles, books, movies, or

plays. If California’s right of publicity law applies in this case, it is simply a

content-based speech restriction. As such, it is presumptively

unconstitutional[.]”

While the run of cases has been against plaintiffs who have raised right

of publicity claims for unauthorized docudramas, there are notable excep-

tions. Olivia de Havilland lost the appeal of her much-publicized lawsuit

against FX Studios for its unflattering portrayal of her in the docudrama

Feud: Bette and Joan,

but originally prevailed at the trial court.

And in Doe

v. TCI Cablevision, NHL tough guy Tony Twist won his right of publicity

Consider, for example, the Restatement’s broad framing of the right of public-

ity as arising whenever someone “appropriates the commercial value of a person’s

identity by using without consent a person’s name, likeness, or other indicia for

purposes of trade[.]” Restatement (Third) of Unfair Competition § 46 (Am.

L. Inst. 1995)

See also Rothman, supra note 34

at 3 (observing that many states’ rights

of publicity appear to extend to “virtually any use of a person’s identity, including

use in news, movies, books, video games, and political campaigns.”).

In California, for example, the right of publicity can be transferred, inherited

by the beneficiaries of the original subject’s estate, and lasts for 70 years after the

subject’s death. Cal. Civ. Code § 3344.1(b) (2022); but see James v. Delilah Films,

Inc., 544 N.Y.S.2d 447, 451 (N.Y. Sup. Ct. 1989) (in New York, right of publicity

does not survive original subject).

See, e.g., Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) (denying right of

publicity claim brought with respect to film The Hurt Locker on First Amendment

grounds).

See Post & Rothman, supra note 21.

Sarver, 813 F.3d at 905-06; see also De Havilland v. FX Networks, LLC, 230

Cal. Rptr. 3d 625, 630 (2018).

De Havilland, 230 Cal. Rptr. 3d. at 630.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 14 28-JUL-23 16:30

166 Harvard Journal of Sports & Entertainment Law / Vol. 14

suit over his portrayal as a heavily fictionalized villain in the “Spawn” comic

book series.

Different courts have come to very different conclusions concerning the

right of publicity and fictionalization due to the tension between the plain-

tiffs’ interest in their identity and the defendants’ First Amendment rights.

The Sarver and appellate de Havilland courts situated the plaintiffs’ right of

publicity claims as content-based speech restrictions, which unsurprisingly

led to the defendants prevailing. But the de Havilland trial court asked a

question less favorable to the studios

—

was the use of the subject’s identity

transformative?

—

which led to a preliminary victory for the plaintiff.

And the Missouri Supreme Court in TCI Cablevision asked a more plaintiff-

friendly question still

—

whether the use of the defendant’s identity was pre-

dominately commercial or expressive

—

eventually resulting in an eight-

figure judgment for the plaintiff on remand. Given this doctrinal variance,

with its outcome-determinative implications, studios cannot be confident

about what law will apply, let alone what the outcome may be.

In light of the foregoing, our interview subjects indicated that when

thinking about the possible legal risks associated with a docudrama, they

weigh the right of publicity quite seriously.

This concern reflects an

awareness of the expanding doctrinal footprint of this cause of action. Sec-

ond, and related, the elements of a right of publicity cause of action present

a low threshold to plaintiffs as compared to defamation and invasion of pri-

vacy claims.

In a publicity claim, it is generally not necessary to show that

the defendant harmed the plaintiff’s reputation or engaged in conduct that

was “objectively outrageous,” but only that an unauthorized use was made

De Havilland v. FX Networks, LLC, No. BC667011, 2017 WL 4682951

(2017) (denying defendant’s anti-SLAPP motion to strike complaint).

Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003).

This is the leading test used in California to mediate between right of public-

ity and free speech. See Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.2d 797,

807-11 (Cal. 2001). The appeals court in de Havilland held that the test did not

apply to docudramas because they were inherently transformative.

The trial court did not rule for de Havilland after a trial on the merits, but

rather held that her complaint survived the defendant’s motion to strike it under

the California anti-SLAPP statute.

TCI Cablevision, 110 S.W.3d at 374.

E.g., Anonymous Interview #3 at 11 (discussing the pitfalls of the right of

publicity for docudramas and identifying it as the primary concern that motivated

execution of life story rights deals).

Invasion of privacy suits are hamstrung in particular by the showing that the

defendant’s conduct is “unreasonably offensive.” We catalog these and other doctri-

nal limits in supra Parts I.C and I.D.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 15 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 167

of the plaintiff’s persona. Finally, and perhaps most importantly, while

courts have usually rejected plaintiffs’ right of publicity claims in the con-

text of creative productions, there are enough counterexamples to give pause

to risk-averse studios, especially in light of the doctrinal uncertainty plagu-

ing the free speech/right of publicity interface.

C. Public Disclosure of Private Facts

Among the several iterations of privacy torts familiarly outlined by

Dean Prosser,

the cause of action for public disclosure of private facts has

been invoked periodically by subjects of unauthorized docudramas. Such an

invasion of privacy is actionable when a defendant makes public some fact

about the plaintiff that was formerly private in a manner that would be

highly offensive to a reasonable person.

This tort does not arise where the

disclosed fact is of legitimate public concern.

Examples of violations in-

clude making public facts about a plaintiff’s physical condition or sexual

preferences purely for purposes of providing titillation or shock value.

Unauthorized docudramas may expose studios to some risk from this

tort. A docudrama is fictionalized but includes substantial true facts about

its subjects. While many of those facts are likely to be in the public record,

some may be private facts that a studio acquires through legitimate means

such as interviews with the subject’s friends and family. If those facts are

embarrassing to the subject and not in themselves of public interest, the

subject could plausibly sue the studio for the disclosure of private facts.

Consider an example: a television studio is making a dramatized fea-

ture based on a story from a local paper about an otherwise obscure man’s

battle with cancer. The production team interviews the man’s family and

friends to learn more about his life, and in one such interview, the subject’s

Prosser identified four iterations of the right of privacy: intrusion on seclusion;

appropriation; publicizing private facts; and false light. Restatement (Second)

of Torts §§

652A–652E (1976). Appropriation has developed into the right of public-

ity, which we discuss above. We address false light below.

Id. § 652D. Not all jurisdictions recognize this tort. See, e.g., Freihofer v.

Hearst Corp., 480 N.E.2d 349 (N.Y. 1985) (declining to recognize a common-law

cause of action for public disclosure of private facts); Hall v. Post, 372 S.E.2d 711

(1988) (same).

Id.

E.g., Diaz v. Oakland Tribune, Inc., 139 Cal.App.3d 118 (1983) (disclosing

student’s transsexual identity held actionable because unrelated to news story); Cat-

souras v. Department of Cal. Highway Patrol, 181 Cal. App. 4th 856, 874 (pub-

licizing pictures of decapitated woman held actionable because it was done so only

to appeal to a “morbid or sensational interest”).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 16 28-JUL-23 16:30

168 Harvard Journal of Sports & Entertainment Law / Vol. 14

ex-spouse volunteers explicit information about his sexual proclivities.

While this information may have little to do with the man’s brave fight

against disease, the studio decides to include the prurient revelations solely

to attract viewers. This kind of gratuitous exposure of embarrassing, highly

personal information unrelated to the public interest in the subject would

likely be actionable as a tortious disclosure of private facts.

While this risk of liability theoretically exists for unauthorized

docudramas, in practical terms it remains remote. One reason is evident

from the implausible character of the foregoing example. Docudramas al-

most always seek to pursue a coherent narrative and derive appeal from the

subject’s story. If that story is not compelling in itself, the studio will not

make a financial commitment to the project in the first place. Adding unre-

lated facts for shock or titillation is thus rare in the genre.

But what about otherwise private facts that are related to the subject’s

story, and are also embarrassing? For example, what if the hypothetical

docudrama showed scenes in which the subject vomited on himself after

undergoing chemotherapy? This scene would probably not trigger liability

due to courts’ extremely broad interpretation of “legitimate public con-

cern.” This latter category is not limited to public figures, but extends to

otherwise private figures who are swept up in public events.

In Cox Broad-

casting Corp. v. Cohn, the Supreme Court held that a television station’s dis-

closure of the identity of a rape and murder victim did not violate her

father’s right of privacy because the crime was a newsworthy event.

“Legit-

imate public concern” need not even involve public events. In Haynes v.

Alfred A. Knopf, Inc., for example, Judge Posner opined that disclosing inti-

mate (though not explicit) details of the lives of several working-class people

did not violate their rights of privacy because those details were germane to

The defendant’s motive matters. Here, we are assuming that the fact was dis-

closed only for prurient appeal. But if the producers sincerely thought that it was

related to the subject’s story, that might make the fact part of the feature’s “public

concern,” and hence not actionable. See, e.g., Sipple v. Chronicle Publ’g Co., 154

Cal.App.3d 118 (1984) (holding that a newspaper’s disclosure of the sexual orienta-

tion of an otherwise private citizen who helped thwart a presidential assassination

was newsworthy because the newspaper reported the fact because it thought know-

ing the sexual orientation of the plaintiff would help counter negative stereotypes

about gay people).

E.g., Shulman v. Group W Prods., Inc., 955 P.2d 469 (1998) (holding news-

paper was not liable for showing pictures of auto accident victims who were not

public figures because the accident was newsworthy).

420 U.S. 469, 492-96 (1975).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 17 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 169

the narrative work of sociology in which they appeared.

And because stu-

dios choose to develop docudramas because they leverage well-known public

narratives or because they tell new stories that will have broad audiences, it

is unlikely that a court would regard any legitimate docudrama as not being

of public concern.

Cox and Haynes signal the narrowing of the tort of public disclosure of

private facts. While its domain originally extended to telling any story that

might be offensive to its subject, now this tort can arise only where a defen-

dant gratuitously publicizes a highly intimate and embarrassing detail that

was not before widely known and that is unrelated to the public interest.

Because the aim of docudramas is to tell stories that are currently salient

and/or generate substantial interest, the chances that an unauthorized

docudrama will have liability under this privacy tort are small.

D. Defamation

Defamation imposes liability on defendants who make false public

statements that cause plaintiffs harm. Unlike the public disclosure of private

facts, defamation centers on falsehoods rather than true but embarrassing

facts. Defamation remedies seek to vindicate injury both to the defendant’s

dignity as well as to her economic reputational interests.

In order to state a

claim for defamation, a plaintiff must show that the defendant made a false

statement about the plaintiff to some third party or the public and that the

statement caused the plaintiff measurable harm.

If the plaintiff is not a

public figure, they need only show that the defendant made the false state-

ment negligently.

If they are a public figure, they must show that the

defendant made the statement knowing of, or with reckless disregard for, its

falsehood.

Because docudramas often fictionalize the true stories on which they

are based, they relate the kind of falsehoods that may give rise to defamation

liability. Imagine, for example, that a docudrama purports to tell the story

of a famous athlete but fictionalizes the story to invent an ongoing struggle

with drug addiction in order to increase the feature’s dramatic impact. The

8 F.3d 1222, 1233 (7th Cir. 1993) (“No detail in the book claimed to violate

the Hayneses’ privacy is not germane to the story that the author wanted to tell[.]”).

Dan B. Dobbs, et al., Hornbook on Torts (2d ed. 2011) 931-32 (discussing

and contrasting economic and dignitary function of defamation law).

Restatement (Second) Torts § 558 (1977); e.g., Davis v. Boeheim, 24 N.Y.3d

262 (N.Y. 2014).

Id. § 580A (1977).

Id. § 580B (1977).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 18 28-JUL-23 16:30

170 Harvard Journal of Sports & Entertainment Law / Vol. 14

athlete could plausibly argue that the film conveyed a falsehood about him

(the drug addiction) to third parties (the film’s audience) and caused him

harm (reputational costs, lost endorsements, etc.).

Because the athlete is a

public figure, he must prove either that the studio knowingly or recklessly

propounded these falsehoods, but since we are assuming that the producers

intentionally invented this story line to make the story more enticing, that

standard would be met. This hypothetical is not implausible. Recently,

chess grandmaster Nona Gaprindashvili sued Netflix, arguing that its brief

depiction of her in The Queen’s Gambit as a chess competitor who had never

played a male opponent was defamatory.

The district court denied Net-

flix’s motion to dismiss, concluding that the statement was objectively false

(since Gaprindashvili had in fact played and beaten many of the world’s top

male chess players) and injurious to her reputation (because it cast aspersions

on her skill and status as a professional chess player).

One hurdle that will complicate most docudrama subjects’ defamation

claims is the heightened “actual malice” standard for defamation that ap-

plies when the subject is a public figure.

This higher bar is intended to

mediate between the free speech interests at play when speaking about a

matter of public import and the reputational interests of the subject. What

it means in practice, though, is that if a plaintiff is reasonably well known,

they cannot state a defamation cause of action unless they can show that the

producer acted with knowledge of, or reckless indifference to, the falsity of

the statement. Plaintiffs have generally found this standard difficult to

meet.

But it is not impossible, especially in the context of docudramas

where screenwriters often consciously invent facts they know to be untrue in

Cf., e.g., Bindrim v. Mitchell, 92 Cal.App.3d 61 (Cal. App. 1979) (finding a

book publisher liable for defamation where it released a novel portraying the thera-

pist subject as using vulgar language in sessions and making sexual advances to

clients).

Gaprindashvili v. Netflix, Inc., 2022 WL 363537 (C.D. Cal. Jan. 27, 2022).

(“The Queen’s Gambit” is a fictional feature, not a docudrama, that is based on a

novel. But it refers to many actual chess players from the mid-late twentieth cen-

tury, and those depictions can be the subject of defamation liability regardless of

whether they are in docudramas or pure dramas.) See id. at *5 (“[T]he fact that the

Series is a fictional work does not insulate Netflix from liability from defamation if

all the elements of defamation are present.”).

Id. at *6-8.

N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (establishing the “actual malice”

standard in defamation cases for public figures).

See Philadelphia Newspapers v. Hepps, 465 U.S. 767 (1986) (holding that the

Constitution requires the scales to be tipped against private figure plaintiffs in defa-

mation matters).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 19 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 171

order to enhance the story. This is precisely what happened in the Queen’s

Gambit case: the screenwriters concocted the detail that Gaprindashvili had

not played male opponents, despite knowing from the book on which their

script was based that this was not true.

On this basis, the court held that

her defamation complaint survived Netflix’s motion to dismiss even when

applying the actual malice standard.

Since the nature of docudramas is the fictionalization of subjects’ lives

to make them more entertaining to the viewing public, depicted subjects

will be able to state plausible defamation cases if fictionalization portrays

them negatively. For this reason, the industry professionals we spoke with

highlighted defamation, along with the right of publicity, as one of the chief

sources of liability that led them to acquire life story rights from their

subjects.

E. False light

It is also worth considering false light. This common law cause of ac-

tion is enumerated as part of Prosser’s taxonomy of privacy torts, though,

like defamation, it vindicates the plaintiff’s interest in being depicted truth-

fully.

False light is, however, unlike defamation in several key ways. First,

the information publicized by the defendant need not be false; it can be

accurate but misleading.

Second, the defendant’s statement need not be

defamatory, but only “highly offensive to a reasonable person.”

Third, the

defendant must have known of the false light in which they were placing the

plaintiff, or acted in reckless disregard of it.

These elements of false light tend to offer plaintiffs a lower threshold

than defamation. Plaintiffs need not show that they suffered reputational

harm, only that the facts asserted by the defendant would cause a reasonable

person psychological harm. Plaintiffs may thus state false light claims even

where defamation is unavailable. A film portrayal could simply distort a

subject’s life or embarrass them in a way that triggered false-light liability

even if it fell short of inflicting the kind of reputational harm required for

Id. at *8-9.

Id.

See Haynes, 8 F.3d at 1230 (observing that both defamation and false light

protect “the interest in being represented truthfully to the world”).

See e.g., Uhl v. Columbia Broad. Sys., Inc., 476 F. Supp. 1134 (W.D. Pa.

1979) (plaintiff prevailed in a false light claim against a television station when the

station spliced together actual footage of the plaintiff but did so to make it seem as

though he shot geese on the ground rather than in flight).

Restatement (Second) of Torts § 652E (1977).

Id.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 20 28-JUL-23 16:30

172 Harvard Journal of Sports & Entertainment Law / Vol. 14

defamation. Hall of Fame baseball pitcher Warren Spahn, for example,

stated a false light claim against the publisher of a book that, in Spahn’s

view, portrayed him in an excessively positive light. A court eventually held

that Spahn stated a valid claim for false light because the hagiographic por-

trayal was objectively offensive, even though it cost the pitcher nothing

reputationally.

While plaintiffs likely have an easier time making a false light claim

than a defamation claim based on a docudrama, numerous roadblocks re-

main. Defendants cannot be held liable unless they acted with knowledge or

reckless indifference to the false light in which they placed the plaintiff.

This is a high bar but not an insurmountable one, especially because

—

with defamation

—

docudramas as a matter of course involve conscious fic-

tionalization of the subject’s life. Second, and more troublesome to plain-

tiffs, false light typically applies only to aspects of a plaintiff’s private life.

So to the extent that most docudramas involve details that have already been

made public, this cause of action will be categorically unavailable.

Finally,

the false light tort is falling into desuetude. Many jurisdictions have ceased

to recognize it or never did,

often finding its differences with defamation

too slender to warrant a separate cause of action. The most recent Restate-

ment of Torts, for example, does not even mention false light.

The domain of the false light tort has shrunk enough that it is not a

meaningful threat of liability to makers of unauthorized docudramas as com-

pared with the right of publicity or defamation. It cannot be wholly dis-

missed, though. Where jurisdictions continue to recognize it, and where the

facts at issue relate to the subject’s personal life, it remains a plausible cause

of action.

See Spahn v. Julian Messner, 18 N.Y.2d 324, 329 (N.Y. 1967) (upholding

false light cause of action against publisher for book that distorted details of base-

ball player’s life).

See Time, Inc. v. Hill, 385 U.S. 374, 387 (1967) (articulating “actual malice”

standard in false light case).

See Patton v. Royal Indus., Inc., 263 Cal. App. 2d 760, 768 (Cal. App. 1968)

(“[F]alse light is a division of invasion of privacy tort, the claim must relate to the

plaintiff’s interest in privacy, and hence cannot involve matters, however offensively

misrepresented to the public, which are in essence “public” themselves.”).

See, e.g., Gaprindashvili, 2022 WL 363537 at *4 (dismissing false light claim

as a matter of law on this basis).

E.g., Denver Publ’g Co. v. Bueno, 54 P.3d 893 (Colo. 2002) (rejecting the

false light tort as a common-law cause of action); Cain v. Hearst Corp., 878 S.W.2d

577, 579 (Tex. 1994); Costanza v. Seinfeld, 279 A.F.2d 255 (N.Y. App. Div. 2001)

For example, false light was among the causes of action that survived the

initial motion to dismiss in Olivia de Havilland’s lawsuit against FX, along with

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 21 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 173

F. Trademark

Trademarks generally indicate the source of a product or service to con-

sumers. Well-known personalities can acquire trademark rights in their

names and personae when the public associates them with particular goods

or services (e.g., Jack Nicklaus golfing attire and accessories).

Likewise,

goods or services that use the name or likeness of a well-known personality,

or which imply that such a person has endorsed the good or service, can be

liable under trademark theories.

This being said, First Amendment consid-

erations impact the analysis of trademark claims when applied to expressive

works, just as they do in the other types of claims discussed above.

Courts have decided relatively few cases involving the assertion of

trademark rights against fictionalized dramas. The best known of these in-

volved a fictional film about two Italian dancers who become known as

“Ginger and Fred,” after the legendary American dancing team of Fred As-

taire and Ginger Rogers. Following the film’s U.S. release, Rogers sued the

producers for violation of her right of publicity, defamation, false light inva-

sion of privacy and on a trademark-based theory for creating a false impres-

sion that she endorsed the film by virtue of its title.

In rejecting Rogers’s

trademark claim, the court held that the title “Ginger and Fred” bore a

sufficient relationship to the artistic content of the film that its use was

justified, observing that “to the extent that there is a risk that the title will

mislead some consumers as to what the work is about, that risk is out-

weighed by the danger that suppressing an artistically relevant though am-

biguous title will unduly restrict expression.”

G. Conclusion

Despite the ubiquity of “life-rights” deals, industry insiders dismiss

the notion of life rights as a legal fiction and an urban legend. This Part has

given substantive heft to this instinct, showing that wherever one looks in

the law

—

from copyright to trademark, rights of privacy to rights of public-

right of publicity and defamation. Havilland, DBE v. FX Networks, 2017 WL

4682951 (Cal. App. Supp. Sept. 29, 2017), *2-9.

In a recent article, Jennifer Rothman argues that trademark law also serves

more directly to protect individual personality and persona. Jennifer E. Rothman,

Navigating the Identity Thicket: Trademark’s Lost Theory of Personality, The Right of Pub-

licity, and Preemption, 135 Harv. L. Rev. 1271 (2022).

Id.

Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).

Id. at 1001.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 22 28-JUL-23 16:30

174 Harvard Journal of Sports & Entertainment Law / Vol. 14

ity

—

there is no legal theory that gives individuals ownership of the facts

that comprise their lives. So why do production companies regularly pay

significant sums to secure deals for rights that don’t exist? This is the puzzle

that we address in Part II.

II. Solving the Life Story Puzzle

If there is no legal right to one’s life story, why do studios often pay to

acquire such rights? In this Part, we examine this puzzle. Life story rights

are not recognized property rights, but as something else entirely. Life story

deals comprise a bundle of semi-standardized rights packaged together

under a common label. This Part discusses how and when life story rights

emerged as tradable commodities in the entertainment industry, and what a

life story acquisition today generally entails.

A. History of Docudramas and Life Story Rights

The dramatization of real-life people and events has been a staple of

dramatic practice for centuries.

William Shakespeare’s “history plays” are

hardly historical, even by sixteenth century standards, yet their rich charac-

ters and text are far more memorable than renditions of the same events by

contemporary historical scriveners.

Many of the earliest moving picture

newsreels from the late nineteenth and early twentieth centuries involved

recreated or dramatized versions of battles and other recent events that could

not practically be captured on film as they were occurring.

New York’s 1903 Civil Rights Law

was the first indication that the

producers of such dramatized works, as opposed to documentary or news

productions, might require the consent of the individuals that they de-

picted. The law, for the first time, expressly prohibited the use of an indi-

vidual’s “name, portrait or picture” in trade without that person’s prior

John Aquino traces the first attempts to “present dramas based on contempo-

rary events” to a Greek play written in 492 B.C. John T. Aquino, Truth and

Lives on Film: The Legal Problems of Depicting Real Person and Events in a

Fictional Medium 11 (2d ed. 2022).

See Irving Ribner, The English History Play in the Age of Shake-

speare 12 (2005 Routledge ed., first published 1957) (“In the history play the

dramatic and the historical intentions are inseparable. The dramatist’s first objective

is to entertain a group of people in a theatre”).

See Hoffer & Nelson, supra note 3, at 22, John Corner, British TV Drama:

Origins and Developments in Rosenthal, ed., supra note 3, 38-39.

Civil Rights Law, NY Consol. Laws, §50 c.6 (1903).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 23 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 175

written consent.

Numerous early actions under the New York statute in-

volved unauthorized reproductions of photographic images of individuals,

including in motion pictures.

Some of these cases indicate that written

consents were obtained from individuals in cases involving motion pictures,

suggesting an early precursor today’s life story deals.

However, it was not

until the 1913 case Binns v. Vitagraph Co. of America

that a U.S. court

formally considered an individual’s right to bar an actor’s depiction of him

in a film.

John R. (“Jack”) Binns was the wireless telegraph operator on the

steamship Republic when it collided with another vessel in 1909.

Thanks to

Binns’s quick dispatch of the telegraphed distress code “C.Q.D.,” another

ship came to the rescue and saved the passengers and crew of the Republic.

Shortly after this newsworthy event, Vitagraph produced a short film titled

“C.Q.D. or Saved by the Wireless; A True Story of the Wreck of the Repub-

lic.” In the film, Vitagraph staged scenes using actors and sets constructed

to resemble parts of the ship.

Binns sued to enjoin distribution of the film

under the New York Civil Rights Law. In ruling for Binns, the court rea-

soned that, unlike a newsreel, Vitagraph used an actor portraying Binns “to

amuse those who paid to be entertained.”

The statute was clear that such

uses in trade, without the prior written consent of the subject, were

prohibited.

Lawsuits like the one brought in Binns raised a cautionary flag among

motion picture producers and caused them to begin to seek permission from

real life subjects before making films about them. It was not until World

Prior to the enactment of the Civil Rights Law in 1903, the right of privacy in

New York was found not to prohibit the use of an individual’s likeness in trade. See

Roberson v. Rochester Folding Box Co., 171 NY 538 (N.Y. 1902) (denying recov-

ery for the unauthorized use of an individual’s photograph on a flour advertisement).

See also Rothman, supra note 34, at 22-25 (discussing case and its impact on NY

legislation).

See Louis D. Frohlich & Charles Schwartz, The Law of Motion Pictures, Including

the Law of the Theatre 274-78 (1918) (collecting cases), Rothman, supra note 34 at

31-35.

See, e.g., Ford v. Heaney 170 App. Div. 979 (N.Y. App. 1910) (reproduced in

Frohlich & Schwartz, supra note 91, at 275-76) (written consent obtained but ex-

pired after one year).

Binns 103 N.E. 1108 (N.Y. App. 1913).

Id. at 1109.

Id.

Id. at 1111.

Id. at 1109.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 24 28-JUL-23 16:30

176 Harvard Journal of Sports & Entertainment Law / Vol. 14

War II, however, that the docudrama format truly came into its own. As

explained by John Corner,

the central idea was to take a documentary theme (the submarine service,

for example, or the nightly bombing raids of the Royal Air Force) and

treat this by “particularizing” it around a story line with characters, which

could be given an intimate rendering using the depictive methods of fea-

ture fiction. The result mixed informational throughput with narrative

satisfaction, allowing for empathy with the main figures of portrayal,

whose experiences and whose personal qualities were projected with far

greater intensity and focus than more conventional documentary formats

could have achieved.

The growing popularity of docudramas in the United States led to an

increasing awareness of the need for contractual consents from their subjects.

As noted above, the 1903 New York Civil Rights Law required a producer

to obtain consent to use an individual’s “name, portrait or picture.” It was

not long, however, before motion picture producers began, in addition to

name and image permissions, to acquire rights to events comprising indi-

viduals’ “life stories.”

The earliest assignment of life story rights for a film that we have iden-

tified was made by Sergeant Alvin C. York, one of the most famous Ameri-

can heroes of World War I.

In 1919, film producer Jesse Lasky saw the

potential for a film focusing on the war hero. But when Lasky offered to buy

York’s story, the soldier is reported to have replied, “My life is not for

sale.”

100

After a series of failed overtures by Lasky, York finally agreed in

1940 to sell the motion picture rights to his life story for $50,000.

101

The

Corner, supra note 88, at 35, 36. In addition to these aesthetic considerations,

docudramas were also cheaper and more practical to produce than news footage that

required filming on location, often in places with restricted access. See id. at 37.

See Pat Silver-Lasky, Hollywood Royalty: A Family in Films (2017)

(“This American soldier unbelievably, and practically unassisted, had wiped out a

machine-gun battalion in the Argonne Forest in north-eastern France, and with just

twenty-eight bullets in his rifle, had killed twenty-eight German soldiers, captured

132 more, and had taken possession of thirty-five machine guns. As war heroes

went, nobody could top Sergeant York.”).

100

Silver-Laskey, supra note 99. See also Todd McCarthy, The Making of Howard

Hawks ‘Sergeant York,’ New Yorker, Jan. 9, 2017.

101

See Lasky v. Commissioner of Internal Revenue, 22 T.C. 13, 14 (1954). In

addition to the rights to York’s life story, Lasky obtained motion picture rights to

three books about York: Sam K. Cowan, Sergeant York and His People

(1922), Tom Skeykill, Sergeant York: Last of The Long Hunters (1930),

and Alvin C. York, Sergeant York: His Own Life Story and War Diary

(Tom Skeykill, ed., 1928). See McCarthy, supra note 100.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 25 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 177

film Sergeant York became the top-grossing film of 1941 (topping even Citi-

zen Kane) and earned actor Gary Cooper an Oscar.

102

Though York did not

actually agree to sell his life story rights until 1940, it is clear that Lasky, a

prominent Hollywood producer, perceived such acquisitions as necessary, or

at least desirable, when he first approached York in 1919.

The expansion of television to homes throughout the United States in

the 1950s led to an increasing number of televised docudrama movies and

miniseries based on true stories.

103

Yet it appears that life story rights were

still acquired predominantly in the motion picture industry, most likely for

budgetary reasons. Even so, not all life story acquisitions during this period

commanded the sums paid to Sergeant York. For example, in 1956, Chris-

tine Sizemore, the psychiatric patient whose case first brought multiple per-

sonality disorder to the attention of the public, sold her life story rights to

Twentieth Century-Fox for $7,000.

104

The result was the popular 1957 film

The Three Faces of Eve, for which Joan Woodward won an Oscar playing a

fictionalized version of Sizemore.

105

It was not until the 1970s and 1980s, a period characterized by the

overwhelming popularity of made-for-tv docudramas (so-called “movies of

the week”),

106

that television producers became sensitized both to potential

liability arising from these productions as well as the advisability of acquir-

102

See id.

103

See Hoffer & Nelson, supra note 3, at 23-24, Karsten, supra note 5, at vii-viii

(“With the advent of television, biographical films reached a new popularity, and

were made not only about major current and historical personalities, but also about

minor personalities who briefly made the headlines

—

films frequently limited to

the event that made them famous. With television, too, the lives of major figures

now could be made into mini-series lasting four to eight hours, stretching over two

or three nights and exploring many aspects of their lives in detail.”).

104

Michael L. Rudell, The Three Faces of Eve: Granting Life Story Rights, N.Y.L.J.,

Apr. 28, 1989, at 3, col. 1. The film grossed approximately $3 million at the box

office. See Emanuel Levy, Three Faces of Eve, The (1957): Joanne Woodward as Multi-

Personality Patient in Oscar-Winning Performance, Cinema 24/7, Jun. 27, 2008, https://

emanuellevy.com/review/three-faces-of-eve-the-1957-3/.

105

The Three Faces of Eve (20th Century-Fox, 1957). Sizemore’s story was also

the subject of a book, Corbert H. Thigpen & Hervey M. Cleckley, The

Three Faces of Eve (1957). According to one report, one of Sizemore’s physicians,

Corbert Thigpen, persuaded her to enter into the agreement with Twentieth Cen-

tury-Fox. Rudell, supra note 105.

106

See, e.g., sources cited at n. 108, infra. See also Renee Wayne Golden, The

Business of Movies for TV: What Practitioners Should Know, N.Y.L.J., May 29, 1987

(“The subject of docudramas that do not concern the celebrity will vary. So many

have covered quadriplegics, Alzheimer’s disease, cancer, blindness, etc. that they

have become known as ‘disease of the week.’ Others depict the heroic exploits of an

individual overcoming insuperable odds, e.g., winning a highly contested athletic

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 26 28-JUL-23 16:30

178 Harvard Journal of Sports & Entertainment Law / Vol. 14

ing life story rights from their subjects. This trend was likely reinforced by a

spate of high-profile controversies and lawsuits relating to docudramas that

played out during the 1980s and which involved well-known figures includ-

ing Elizabeth Taylor and Senator Joseph McCarthy’s lawyer Roy Cohn, as

well as the victims and defendants in several high profile murder trials.

107

These cases attracted the attention of practitioners, legal academics and

law students, who published a spate of articles, notes and comments explor-

ing the boundaries of docudrama liability and the parameters of life story

rights deals.

108

By the mid-1990s, however, this fascination with docu-

dramas and life story rights appears to have subsided, perhaps as the

docudrama gave way to reality television and other forms of entertainment,

and as life story acquisition practices became more normalized within the

film and television industries.

109

From the mid-1990s through the early

event or escaping from a prison camp. Some are love stories, some are political, few

are comedic.”)

107

See, e.g., Taylor v American Broadcasting Co., No. 82, Civ 6977 (S.D.N.Y.

1982), Cohn v. N.B.C., 67 A.D.2d 140, (N.Y.S.2d1979), aff’d, 50 N.Y.2d 885, cert.

denied, 449 U.S. 1022 (1980) and William E. Schmidt, TV Movie on Atlanta Child

Killings Stirs Debate and Casts Doubt on Guilt, N.Y. Times, Feb. 1, 1985.

108

See, e.g., Erik D. Lazar, Towards a Right of Biography: Controlling Commer-

cial Exploitation of Personal History, 2 COMM/ENT J. Comm. & Ent. L. 489

(1979). Deborah Manson, The Television Docudrama and the Right of Publicity, 7

Comm. & L. 41 (1985) (Taylor case); Lisa A. Lawrence, Television Docudramas and

the Right of Publicity: Too Bad Liz, That’s Show Biz, 8 COMM/ENT J. Comm. &

Ent. L. 257 (1985) (Taylor case); Marsha S. Brooks, The Maze of Docudrama: Issues to

Consider when Dramatizing Factual Material, N.Y.L.J., Apr. 19, 1985 (general dis-

cussion); Neil J. Rosini, Releases for Docudramas: When Are They Advisable and

What Goes into Them, 5 Comm. L. 7 (1987) (general discussion); Renee Wayne

Golden, Docudramas Raise Thorny Legal Issues, N.Y.L.J., Jun. 12, 1987 at 5, 19

(general discussion); Joan Hansen, Docudrama - Invented Dialogue, Impersonation

and Concocted Scenes: Beware of Lurking Lawsuits, 5 Ent. & Sports L. 1 (1987)

(general discussion); Rudell, supra note 104 (Sizemore case); Tim A. Pilgrim,

Docudramas and False-Light Invasion of Privacy, 10 Comm. & L. 3 (1988) (general

discussion); Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light

that Failed, 64 N.Y.U. L. Rev. 364 (1989) (general discussion); Michelle E.

Lentzner, My Life, My Story, Right - Fashioning Life Story Rights in the Motion

Picture Industry, 12 Hastings Comm. & Ent. L.J. 627 (1990) (Sizemore case);

Debra Meyer Glatt, Trial by Docudrama: Fact or Fiction, 9 Cardozo Arts & Ent.

L.J. 201 (1990) (Hunt case); Grunfeld, supra note 29 (general discussion); Megan

Moshayedi, Defamation by Docudrama: Protecting Reputations from Derogatory

Speculation, 1993 U. Chi. Legal. F. 331 (1993) (Street case).

109

As an illustration of the absorption of this practice as a standard industry

practice, a 1997 episode of Seinfeld turned on hijinks resulting from Kramer’s sale

of his life story rights to J. Peterman. “The Van Buren Boys,” Seinfeld episode

#148 (first aired Feb. 6, 1997). Among other things, Elaine believes that Kramer

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 27 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 179

2010s, relatively few life-story-related lawsuits were filed in the U.S. and

comparatively little academic literature was published concerning them.

110

The industry shifted again in the early 2010s. As we discuss in Part III,

the rise of the major streaming networks – Netflix, Amazon Prime, Ap-

pleTV, and HBO Max, among others – as content producers in constant

need of new programming, coupled with the increasing popularity of social

media influencers and testimonials, has led to renewed interest in the

docudrama genre. While some recent productions have been based on de-

ceased subjects, likely not requiring the acquisition of life story rights at all

(see Section II.B.2.d, below), many concern subjects who were living at the

time of production, and thus, like Inventing Anna, likely involved life story

acquisitions.

B. The Mechanics of Acquiring Life Story Rights

Before detailing the principal features of life story deals in Part C, be-

low, we pause to explain how these deals typically unfold in the industry.

The process often begins with some true story reported in the news or fea-

tured in a book or magazine article that a producer deems promising as the

subject of a docudrama.

111

The producer will contact the subject or their

agent or manager (and, in some cases, the author of the relevant book or

article) to solicit interest in making the story into a feature film or television

production. If the subject agrees, the producer will ask the subject to enter

into an option agreement for a life story deal, so that when the producer

shops the project to studios, they are not just pitching an idea but have

actually “acquired the life rights”

—

i.e., secured the many advantages of life

story agreements outlined in this Subpart.

112

If the studio greenlights the

can no longer tell others about his adventures following the sale. Luckily for the

series, Peterman rescinds the sale at the end of the episode.

110

Although the decades of the 1990s and 2000s did not see the level of contro-

versy that the 1980s saw, they were not wholly without disputes. See, e.g., Aquino,

supra note 86, at 9-11 (discussing cases).

111

Anonymous Interview #1 at 3-5. This could be an independent producer who

shops prospective films to different studios like Paramount or Netflix, or an in-

house producer for one of those production companies. In either case, the producer

needs to make the case to the studio that the docudrama is a compelling project that

the studio should develop into a film. Id.

112

Dina Appleton & Daniel Yankelevitz, Hollywood Dealmaking: Nego-

tiating Talent Agreements for Film, TV and New Media 31 (2d ed., 2010)

(noting that option fees are usually around 10% of the purchase prices); see also

Anonymous Interview #6 at 14 (explaining that options nearly always precede final

life rights deals).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 28 28-JUL-23 16:30

180 Harvard Journal of Sports & Entertainment Law / Vol. 14

project, the producer will often assign the option agreement to the studio,

which may then exercise the option and pay the subject the agreed purchase

price. Upon exercise, the subject and the studio will execute a full life story

acquisition agreement.

In the remainder of this Part B, we discuss in greater detail the types of

stories and productions for which life story rights are typically acquired, and

from whom.

1. Fictionalization

The term “fictionalization” has been defined as “the blending of truth

and fiction in such a manner that it is difficult, if not impossible, to deter-

mine which parts are real and which are invented.”

113

Fictionalization can

entail adding a couple of spicy details about a subject’s life or creating en-

tirely new characters, scenes, dialog, and events.

114

Fictionalization is one of

the defining characteristics of the docudrama genre, situated between the

entirely factual accounts presented by documentaries and the entirely ficti-

tious portrayals offered by dramas. Studios have fictionalized true stories

since the Golden Age of Hollywood, in which films such as Billy the Kid

(1930) and Mata Hari (1931) indiscriminately combined historical facts

with stock elements of melodrama.

115

It is fictionalization that warrants life story rights agreements for

docudramas but not documentaries. Netflix would have required no rights

from Anna Sorokin if it were merely producing a documentary along the

lines of HBO Max’s one-hour episode about Sorokin in its Generation Hustle

documentary series.

116

But Netflix envisioned Inventing Anna not as a docu-

mentary, but as a fully dramatized narrative series in which invented ele-

ments, dialog and scenes were necessary to propel the narrative. And when a

113

Lawrence, supra note 108, at 278.

114

For example, the producers of the 2022 Netflix series Dahmer – Monster: The

Jeffrey Dahmer Story, are reported to have added numerous gruesome details to the

depiction of serial killer Jeffrey Dahmer, including his drinking of human blood

when he was employed at a local blood bank. See Jasmine Washington, Fact Or

Fiction: How Much of Netflix’s Dahmer Show Monster Is REALLY True? Seventeen, Oct.

3, 2022, https://www.seventeen.com/celebrity/movies-tv/a41463978/how-true-is-

monster-jeffrey-dahmer/.

115

See Aquino, supra note 86, at 26.

116

Documentary producers typically obtain written appearance releases from

subjects that they wish to interview on screen, often with no payment or a modest

fee. See Jon M. Garon, The Independent Filmmaker’s Law and Business

Guide: Financing, Shooting, and Distributing Independent and Digital

Films 306-07 (3d ed. 2021).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 29 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 181

screenwriter adds invented material to a portrayal of a real person, that sub-

ject has a plausible claim for defamation, and the producer’s First Amend-

ment protection is lessened, because the film is portraying the subject in a

manner that is partially false.

117

Accordingly, as one court has noted, “dram-

atization, imagined dialog, manipulated chronologies, and fictionalization of

events” have all given rise to claims by a depicted subject.

118

Fictionalization may also have upsides for producers. Inventing a

wholly fictional character raises few liability concerns because such charac-

ters are unrecognizable as actual persons and their portrayal cannot be found

to have defamed someone. For this reason, producers often use fictionaliza-

tion as a way to handle secondary characters from whom the producer has

not obtained full life story rights or releases of liability. For example, the

2022 Netflix docudrama The Stranger was based on the real life murder of a

13-year old Australian boy and the subsequent manhunt for his killer.

119

Because the victim’s family objected to the production, the producers in-

vented several scenes and changed the names of the principal characters,

though their appearances and actions were largely based on a nonfiction

book that described the case.

120

An even more extreme case of altering char-

117

See Porco v. Lifetime Entertainment Services LLC, 147 A.D.3d 1253, 1254-

44 (N.Y. App. Div. 2017) (“a work may be so infected with fiction, dramatization

or embellishment that it cannot be said to fulfill the purpose of the [First Amend-

ment] newsworthiness exception” (citing Messenger v. Gruner+ Jahr Print. &

Publ., 94 NY2d 436, 441 (N.Y. 2000)).

118

See Spahn v. Julian Messner, Inc., 221 N.E.2d 543 (N.Y1966) (fictionalized

biography of a well-known baseball player was not authorized under First Amend-

ment, as an accurate biography would have been). See also James M. Treece, Commer-

cial Exploitation of Names, Likenesses, and Personal Histories, 51 Tex. L. Rev. 637, 655

(1973) (“Liability for factual inaccuracy proceeds from an inference, based on evi-

dence of “fictionalization,” that the publisher intended to blend fact and fiction to

increase circulation. Courts then weight this commercial purpose to override any

purpose to convey information about newsworthy events. As a result, the publisher

finds himself stripped of his constitutional privilege and charged with invasion of

privacy.”)

119

The Stranger (Netflix, 2022).

120

See Leslie Katz, ‘The Stranger’ on Netflix: The True Story That Inspired the Unset-

tling Thriller, CNET, Nov. 9, 2022, https://www.cnet.com/culture/entertainment/

the-stranger-on-netflix-the-true-story-that-inspired-the-unsettling-thriller/ Accord-

ing to the Sydney Morning Post, the actor playing the lead detective in the case never

met his subject, who remains anonymous. The actor explained “we were investigat-

ing the truth, taking that truth and telling a fictionalised version of it, which is

about protecting everyone involved.” Stephanie Bunbury, ‘So much at stake’: Joel Edg-

erton’s risky mission for The Stranger, Sydney Morning Post, Oct. 8, 2022, https://

www.smh.com.au/culture/movies/so-much-at-stake-joel-edgerton-s-risky-mission-

for-the-stranger-20221003-p5bmu3.html.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 30 28-JUL-23 16:30

182 Harvard Journal of Sports & Entertainment Law / Vol. 14

acters can be found in the hit 1942 musical film Yankee Doodle Dandy, in

which composer George M. Cohan’s two wives (Ethel, whom he divorced,

and Agnes, a dancer) were combined into a single composite character

named Mary, largely because Cohan wanted no reference to Ethel in the film

and preferred the more melodic name Mary for use in his lyrics.

121

In stories about particularly prominent figures, public sentiment has

caused producers to clarify their role in fictionalizing real events. For exam-

ple, in Season 5 of The Crown, which aired shortly after the death of Queen

Elizabeth II, private meetings between Prime Minister John Major and both

Prince Charles and the Queen were portrayed. Buckingham Palace, Major,

Dame Judy Dench and other prominent figures condemned the portrayals,

with Major calling them a “barrel-load of nonsense.”

122

In response, the

producers added a disclaimer to the trailer for the show emphasizing its

fictionalized nature: “Inspired by real events, this fictional dramatisation

tells the story of Queen Elizabeth II and the political and personal events

that shaped her reign.”

123

2. From Whom Are Life Story Rights Acquired?

a. Sources of Life Story Rights

Though the principal sources of life story rights are the individual sub-

jects being depicted, producers may also seek to secure life story rights from

third parties who knew subjects well, such as family members, journalists

and police investigators.

124

The reason for this practice is that such third

parties serve as alternative sources for the subject’s narrative, and could give

rise to competing projects. For example, though Netflix acquired life story

rights for Inventing Anna directly from Anna Sorokin, HBO Max is reported

to have optioned a tell-all article about Sorokin written by her former friend

Rachel Williams.

125

Netflix’s gamble may have paid off, however, as a

scripted HBO docudrama about Sorokin has not yet emerged, though HBO

121

See Aquino, supra note 86, at 53.

122

Emily Burack, The Drama Over Adding a Disclaimer to The Crown, Explained,

Town & Country Mag., Oct. 27, 2022, https://www.townandcountrymag.com/lei-

sure/arts-and-culture/a41735275/the-crown-season-5-disclaimer-controversy/

123

Id.

124

See Grunfeld, supra note 29, at 516.

125

See Stacey Lamb, Anna Sorokin’s Story of Fraud Documented in ‘Generation Hustle’

and Shonda Rhimes Series, ET, Oct. 25, 2021, https://www.etonline.com/anna-delvey-

from-fake-german-heiress-to-subject-of-shonda-rhimes-netflix-series-164058.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 31 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 183

did produce the aforementioned one-hour documentary episode that re-

counted Sorokin’s story.

126

b. Uncooperative Subjects

It is always possible that an individual whom a producer plans to de-

pict will not wish to be depicted, will not give the producer sufficient artis-

tic control over the depiction, or demands an unreasonable level of

compensation.

127

Other subjects may decline to enter life story deals because

they correctly intuit that fictionalization clauses give producers the right to

depict them in an unflattering light.

128

And some subjects (e.g., the British

royal family) may simply feel that “selling” their life story rights is beneath

their dignity and not something that they wish to entertain. Sometimes, a

producer may not be able to obtain life story rights for an individual de-

picted in a docudrama. In some cases, this lack of rights will persuade a

producer not to pursue the project. As noted in Part I.A, above, producer

Jesse Lasky waited twenty-one years until Sergeant Alvin York was willing

to sell his life story rights for film.

In other cases, a producer may be willing to take the risk of producing

a film about a living person without obtaining their consent. Such was the

case with the 2010 film The Social Network, which portrayed Facebook

founder Mark Zuckerberg without his permission or cooperation.

129

While

Zuckerberg criticized aspects of his on-screen depiction, to our knowledge

neither he nor Facebook brought litigation.

130

The result was different for

Equinoxe’s docudrama Winnie Mandela, which the principal subject dispar-

aged in the media before it was released, contributing to the film’s critical

and commercial failure.

131

126

See id.

127

See Grunfeld, supra note 29, at 516; Perot, supra note 7, at 205.

128

Anonymous interview subject #4 at 9-10 (noting that subjects will frequently

walk away from life story deals when they realize studios will be allowed to depict

them in a negative light).

129

See Ben Child, Mark Zuckerberg rejects his portrayal in The Social Network, The

Guardian, Oct. 20, 2010, https://perma.cc/SN4H-UXAP.

130

Whatever the likelihood that such litigation would ultimately have been suc-

cessful, a lawsuit by a well-funded plaintiff could have caused problems, and cer-

tainly increased costs, for the producers. Some press accounts have speculated that

Zuckerberg did not sue because the movie seemingly increased the popularity of

Facebook. Id.

131

See notes infra 181-183 and accompanying text.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 32 28-JUL-23 16:30

184 Harvard Journal of Sports & Entertainment Law / Vol. 14

c. Centrality of the Character

Even a docudrama that focuses intensely on one particular character

usually depicts other individuals

—

friends, relatives, neighbors, colleagues,

teammates, opposing counsel, police officers, victims, and the like. A pro-

ducer must decide which of these individuals warrant the acquisition of life

story rights, and which may require only a release

132

or, if the subject is

uncooperative, how to proceed absent the subject’s cooperation. Unlike a

principal character, a secondary character may more readily be depicted in a

non-controversial and accurate manner or fictionalized to a degree that the

real person is no longer represented.

133

d. Living Persons

Producers generally acquire life story rights only from living individu-

als, as most claims for defamation, privacy rights and rights of publicity do

not survive the subject’s death,

134

and deceased individuals will be unable to

cooperate with a production. While some posthumous rights, such as rights

of publicity, do exist, in some states, industry practice, by and large, is not

to seek life story rights other than from living individuals.

135

As one com-

mentator suggests, “[t]his may account for the abundance of biographical

docudramas produced shortly after a celebrity’s death.”

136

3. Insurance Coverage

A final, but crucial, element in the acquisition of life story rights is

their role in securing errors and omissions (E&O) insurance coverage for a

project. As explained by one entertainment industry broker,

Producers Errors and Omissions Insurance covers all of the potential legal

liabilities and defense costs against lawsuits alleging unauthorized use of

titles, formats, ideas, characters, plots, plagiarism, unfair competition or

privacy, and breach of contract. It also protects against alleged libel, slan-

132

See discussion infra Part II.D.

133

See supra Part II.B.1.

134

But see Rothman, supra note 34, at 81-88 (discussing post-mortem rights of

publicity recognized in some states).

135

See Anonymous Interview #2 at 8; Mark Litwak, Dealmaking in the Film

& TV Industry (4th ed., 2016) (“If the subject of the life story is deceased, much of the

rationale for buying these rights disappears.”).

136

Grunfeld, supra note 29, at 494 and n.76 (noting 1980s docudramas based on

the lives of Rock Hudson, Karen Carpenter and Liberace that were produced shortly

after their deaths).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 33 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 185

der, defamation of character or invasion of privacy. Errors & Omissions is a

requirement for distribution deals with studios, television, cable networks,

DVD and Internet sites prior to the release of any film production.

137

By the 1980s, the acquisition of life story rights from docudrama sub-

jects had become so common within the film and television industry that

leading E&O insurance carriers required a producer to represent that it had

acquired releases from all persons depicted in a production as part of the

policy application process.

138

Moreover, the policies of major television net-

works began to tie the authorization of a production to the satisfaction of

carrier requirements for insurability.

139

Risk averse E&O carriers are influential norm-setters in the film and

television world.

140

Several of the entertainment practitioners whom we in-

terviewed emphasized the importance of obtaining life story rights in order

to secure E&O coverage. Though some carriers may be willing to insure

productions for which such rights have not been obtained,

141

the result may

be a substantially higher premium.

142

Larger studios, however, may self-

insure their productions, thereby eliminating the need to bow to the de-

mands of third party E&O carriers.

143

137

front row insurance brokers inc., E&O insurance 101: How to protect your

film (2021).

138

See, e.g., Perot, supra note 7, at 199; Grunfeld, supra note 29, at 530, 539

(quoting Fireman’s Fund Insurance Co. application, “Written releases must be ob-

tained from all persons who are recognizable or who might reasonably claim to be

identifiable in the Insured production, or whose name, image or likeness is used.”).

139

See Golden, Docudramas, supra note 108 (citing ABC Program Standards

Guide).

140

Cf. Patricia Aufderheide, Fair Use Put to Good Use: ‘Documentary Filmmakers’

Statement’ Makes Decisive Impact, documentary magazine, Aug. 15, 2007, https://

perma.cc/ZKA4-BCVN (“insurance companies are both the ultimate gatekeepers

for television documentary and also historically cautious to adopt practices that in-

volve risk”); see also James Gibson, Risk Aversion and Rights Accretion in Intellectual

Property Law, 116 Yale L.J. 882, 893-94 (2007) (discussing the importance of E&O

coverage and the risk aversion of E&O carriers).

141

E.g., The Social Network, supra Part II.B.2.b.

142

See Front Row, supra note 137, at 46 (“a possible result of not getting permis-

sion from a celebrity to do a docudrama could be a much higher E&O deductible

. . . In some cases your deductible could jump from around $10,000 to as high as

$250,000 for that one item”); Perot, supra note 7, at 199-200, 206.

143

Interview with Subject #10 (date of interview).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 34 28-JUL-23 16:30

186 Harvard Journal of Sports & Entertainment Law / Vol. 14

4. Life Story Rights Across Media

It is worth noting that practices surrounding the acquisition of life

story rights in the film and television industry have not been widely adopted

in other media industries such as publishing, radio broadcasting or podcast-

ing. This is not to say, of course, that the potential for liability does not

exist when real persons are depicted in these media. For example, in the

1960s, the reclusive tycoon Howard Hughes assigned to a personal holding

company the exclusive right to exploit his “name, personality, likeness or

the life story or incidents in [his] life.”

144

When Random House announced

plans to publish a biography of Hughes, the company sued the publisher

under a number of theories.

145

Similar cases have been brought against other

book, newspaper and magazine publishers that have released fictionalized

portrayals of real people.

146

Given cases such as these, one might envision the practice of obtaining

life story rights, or at least releases, emerging in the publishing industry as

it did in the motion picture industry. Yet journalists, authors and publishers

seldom enter into life story agreements with their subjects.

147

There are sev-

eral possible reasons for this difference between industries. First, films and

television shows are typically produced by corporate entities with legal rep-

resentation and significant financial backing, whereas journalists and au-

thors typically produce articles and books independently on modest budgets,

with large advances reserved for only the most prominent. And while pub-

144

Rosemont Enterprises, Inc. v. Random House, Inc., 294 N.Y.S.2d 122, 125

(Sup. Ct. 1968).

145

The plaintiff’s theories of liability were not entirely clear to the court. Id. at

126 (referring to plaintiff’s theories as a “combination of diverse allegations relating

to several separate and distinct legal concepts which are all woven together into

some not easily decipherable hybrid”). The case was dismissed, the court holding

that “a public figure can have no exclusive rights to his own life story, and others

need no consent or permission of the subject to write a biography of a celebrity.” Id.

at 129. But see Spahn v. Julian Messner, Inc., 221 N.E.2d 543 (N.Y. App. 1966)

(fictionalized biography of a famous baseball player was enjoined under NY Civil

Rights Law).

146

See Streitfeld, supra note 32; Treece, supra note 118, at 655-59. Even non-

fiction biographies have been subject to lawsuits when pursued without the permis-

sion of a living subject, though these lawsuits have seldom been successful. See NPR

Staff, Kitty Kelley Defends The ‘Unauthorized’ Biography, NPR (Dec. 11, 2010), https:/

/perma.cc/VT5R-C5EY.

147

One growing exception is podcasts, in which producers increasingly seek life

story rights from their subjects. See Anonymous Interview #4 at 20 (describing life

story deal for a podcast). Anonymous Interview #12 (increasing acquisition of life

story rights by podcast producers who had experience in television industry).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 35 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 187

lishers may earn significant revenue from popular books (more, in some

cases, than motion pictures), norms in the publishing industry place the

onus for obtaining third party permissions on the author rather than the

publisher. Thus, most authors and independent journalists are unable to af-

ford a significant outlay to acquire life story rights, whereas even films with

modest production budgets can accommodate these costs. Further, E&O in-

surance does not exist to the same extent in the publishing industry as it

does in television and film. Thus, there appears to be little external pressure

for journalists and authors, and even publishers, or to acquire life story

rights. For all of these reasons, we see few life story deals outside the film

and television industries.

C. Basic Elements of a Life Story Deal

Agreements to acquire life story rights are multilayered contracts that

include four key features: a putative conveyance of rights; a waiver of liabil-

ity; an exclusivity commitment; and an agreement to grant access or cooper-

ate. We discuss each of these features, as well as some others, in greater

detail in this Section.

1. Grant of Rights

Since at least the 1940s, life story agreements have contained a formal

grant of rights of the type typically seen in intellectual property licenses.

148

This grant includes the right to portray the subject factually or fictionally.

For example, the 1956 agreement between Christine Sizemore, the psychiat-

ric patient on whom The Three Faces of Eve was based, and Twentieth Cen-

tury-Fox contains an assignment to the studio of “all versions of my life

story heretofore published or hereafter published and unpublished versions

thereof.”

149

By the 1980s a more robust version of this grant, phrased as a

license rather than an assignment or conveyance of rights, had become com-

mon in life story agreements, requiring the subject to grant to the producer:

A perpetual, exclusive, and irrevocable right, throughout the universe, to

depict the subject, whether wholly or partially factually or fictionally, and

to use the subject’s name, likeness, voice, and biography, in any and all

media and by any and all means whether now known or hereafter devel-

oped and in all advertising and exploitation thereof [and] to portray, im-

148

See Jorge L. Contreras, Intellectual Property Licensing and Trans-

actions: Theory and Practice 149 (2022) (describing grants of rights in intellectual

property licenses).

149

Rudell, supra note 105.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 36 28-JUL-23 16:30

188 Harvard Journal of Sports & Entertainment Law / Vol. 14

personate, and simulate the subject in any way in which the producer in

his sole discretion may determine.

150

Such a grant of rights continues to appear prominently in life story

agreements today. Yet, as discussed in Part II, life story rights are not prop-

erty rights that can be conveyed and licensed like copyrights or trademarks.

The grant of rights in life story rights agreements, then, seems superfluous,

or at least redundant in view of the operative contractual provisions dis-

cussed below (i.e., access, exclusivity, and waiver).

151

This being said, the grant of rights in life story agreements may serve

at least one important function: it may establish, beyond a shadow of a

doubt, that the producer is permitted to fictionalize the subject’s story.

152

an express authorization to fictionalize is not granted, the subject could ar-

gue that the producer is only entitled to depict their actual story, truthfully

and without embellishment, as in a documentary. The grant of fictionaliza-

tion rights thus authorizes producers to embellish the truth, eliminating any

risk that the agreement will be read otherwise.

153

Such contractual grant language may also be useful to evidence the

scope of a subject’s agreement and thereby avoid disputes between compet-

ing producers. For example, in 2009 sportswriter Kirstie McLellan Day co-

authored with Canadian hockey star Theo Fleury a book about his exper-

iences with sexual abuse as a junior league player.

154

In 2021, a Hollywood

studio announced plans to produce a docudrama about Fleury’s life. Day

objected on the ground that the agreement she signed with Fleury gave her

150

Lentzner, supra note 108, at 633 (quoting Williams & Frascott, The Lawyer’s

Role in the Acquisition and Exploitation of Life Story Rights, 31 Boston Bar J., July/

Aug. 1987, at 9).

151

In Marder v. Lopez, the Ninth Circuit held that a grant of rights in a life story

agreement was not redundant with a release from claims. The court explained that

while a release “extinguishes claims against the released party,” a grant, by contrast,

“is an agreement that creates a right. Parties may include both provisions in a

contract without undermining the effect of either the grant or the release.” 450

F.3d 445, 452 (9th Cir. 2006). Id.

152

See Kelly v. William Morrow & Co., 186 Cal. App. 1625 (1986) (holding

that a “personal depiction waiver” for book publication covered the book’s mixed

truthful and invented portrayal of the subject because it granted the right to depict

that subject “either factually or fictionally”).

153

Id. (implying that granting the right to portray the subject’s life fictionally

was necessary to allow the grantee to do so).

154

Theo Fleury & Kristie McLellan Day, Playing with Fire (2009).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 37 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 189

“the right to exploit all subsidiary rights in respect of the [book].”

155

De-

spite Day’s contentions, it is not clear that this contractual language would

apply to an original script about Fleury’s life that is not derivative of the

book itself.

156

Had Day wished more reliably to secure the exclusive right to

make a production based on Fleury’s life story, she might have been better

off with a contractual grant of rights akin to those described above.

2. Liability Waiver

Industry insiders describe the liability disclaimer or waiver clause as

the central feature of life story agreements.

157

These clauses are broad and

include general waivers of liability as well as disclaimers of liability under

specific theories ranging from plausible (right of privacy and defamation) to

largely inapplicable (copyright and trademark).

158

Despite the relative freedom that producers have under the First

Amendment to tell stories that are based on true facts, and the decreased

risk of liability when characters are partially or fully fictionalized, liability

rooted in the right of publicity and defamation is a real threat, so these

waivers do reduce studios’ litigation exposure.

159

Their greatest value,

though, is likely as a preemptive, litigation-avoidance measure. Unhappy

docudrama subjects may sue regardless of whether they have a valid cause of

action and even meritless lawsuits can exact costs in terms of attorney’s fees,

distraction, bad publicity and possible nuisance-value settlements. By re-

quiring subjects to agree to liability waivers, producers can reduce the possi-

bility that such litigation will be initiated, since individuals tend to comply

with agreements that they execute.

160

155

Meghan Grant, Hollywood movie about Theo Fleury stalled as autobiography

co-author claims ownership over his life story, CBC News, Jul. 6, 2021, https://

perma.cc/4FHN-92JR.

156

The matter is pending in Canada, and we express no views about Canadian

law.

157

Anonymous Interview #6 at 4 (summarizing “life story rights” as “you’re

buying the right not to be sued”); Anonymous Interview at 7 (“[T]he key from my

perspective is the release. What we’re trying to do is avoid a lawsuit by getting this.

That’s really, to me, what it’s all about.”).

158

See Anonymous Interview #4 (waivers list all of these enumerated causes of

action, even though copyright and trademark are likely unnecessary).

159

James Gibson observes similar risk aversion behavior in a variety of copyright

licensing contexts where a license may not actually be required by law but is useful

to avoid potential litigation. Gibson, supra note 140.

160

Anonymous Interview #6 at 14 (reporting that subjects tend to comply with

life story rights agreements). Empirical work also shows that people tend to perceive

contracts they execute as binding, at least where (as here) the parties have a mean-

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 38 28-JUL-23 16:30

190 Harvard Journal of Sports & Entertainment Law / Vol. 14

3. Exclusivity

Life story rights agreements generally require the subject to agree to

sweeping exclusivity restrictions.

161

This means, at a minimum, that the

subject will not cooperate with another producer or studio to create a

docudrama based on their life. Sometimes, such provisions also mandate that

subjects refrain from sharing their stories with other media outlets: no news

interviews, no confessional blog posts, no magazine features.

162

When sub-

jects want to engage with media in a manner that will not undermine the

project, the life story agreement could expressly permit such engagement, or

require the subject to seek the prior authorization of the studio (which may

be granted if the request is reasonable).

163

Studios desire exclusivity in part because preventing a subject from

cooperating with other production companies will make it harder for them

to make competing films, notwithstanding their general ability to depict

known facts.

164

Moreover, the more the details of the subject’s story become

widely known, the less public appetite is likely to remain for the production

once it is released. While there are instances of multiple docudramas being

released on the same subject, the later market entrant has often had its thun-

der stolen by the earlier one.

165

For example, the 2005 Truman Capote bi-

opic, Capote, won widespread critical acclaim, was a box office hit, and won

an Oscar for Philip Seymour Hoffman.

166

The 2006 film Infamous also dram-

ingful sense of the contract’s content. See Zev J. Eigen, When and Why Individuals

Obey Contracts: Experimental Evidence of Consent, Compliance, Promise, and Performance,

41 J. Legal Stud. 67, 87-88 (2012) (demonstrating that people are more likely to

comply with negotiated contracts than with adhesory ones).

161

Garon, supra note 116, at 315 (discussing exclusivity as a core feature of life

story rights).

162

Anonymous Interview #3 at 5.

163

Anonymous Interview #10; Stephen Rodner, Life story rights: What’s possible

and what’s not? Hollywood Rep., Jan. 24, 2008 (“Usually, an exclusion is negoti-

ated which gives the subject the right to appear on news interviews and (sometimes)

to appear in documentary films that would not interfere with the producer’s fic-

tional film.”).

164

Anonymous Interview #5 at 9 (explaining that with exclusivity “you can

prevent those people [subjects] from working on the other ones [competing

projects[ ] and making their projects better or spilling their secret sauce”).

165

Anonymous Interview #7 at 11 (“It’s very hard to do two movies on the same

subject matter. The second one usually tanks”).

166

See Kenneth Turan, ‘Infamous’ Fails Where ‘Capote’ Succeeded, NPR, Oct. 13,

2006, https://perma.cc/KZG9-P7RU. Interestingly, Capote’s most famous book, In

Cold Blood (1965), was itself a fictionalized account of a notorious murder and the

trial and execution of its perpetrators. See Casey Cep, Furious Hours: Murder,

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 39 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 191

atized the same period in Capote’s life. Nevertheless, the public appetite for

Capote dramatizations had seemingly been sated by the earlier film, and

Infamous turned out to be a commercial failure.

167

All of these reasons help to explain why Netflix secured Anna Sorokin’s

exclusive cooperation for Inventing Anna,

168

despite the fact that, prior to the

series’ release, Sorokin’s story had already been the subject of a televised

documentary episode on HBO Max, features on news programs, and pod-

casts produced by BBC and others.

169

Though Sorokin appears personally in

several of these, none dramatizes her story using actors and staged scenes in

the manner of Inventing Anna. While Netflix’s agreement with Sorokin

could not keep her story under wraps, it did guarantee Sorokin’s exclusive

cooperation, complicating the efforts of any other studio to create an Anna

Delvey dramatization.

Whether exclusivity provisions are enforceable is debatable as a practi-

cal and legal matter.

170

If a subject who signed an exclusive life story agree-

ment with a studio then did an interview with a newspaper discussing

features of her story, it is not clear that the studio could successfully enforce

the agreement.

171

Optically, the public perception of the studio seeking to

silence its subject could reflect poorly on the studio and its project. Suing

the subject could also destroy any goodwill between the subject and the

studio, making it unlikely the subject would cooperate in a useful manner

with the film’s production. And, legally, whether the studio could enforce

Fraud, and the Last Trial of Harper Lee (2020) (discussing Capote’s writing of In

Cold Blood).

167

See Turan, supra note 166.

168

Baker, supra note 6 (“A “life rights” deal does not mean other people can’t

tell the story – which has multiple perspectives – but it gives the company free rein

and ensures Sorokin cannot assist the competition.”).

169

Divya Meena, 5 Anna Delvey Documentaries and Podcasts to Check Out

Before “Inventing Anna”, Yahoo!, Feb. 8, 2022, https://perma.cc/H2X9-STNJ.

170

See Anonymous Interview #5 at 10 (conceding that whether exclusivity

clauses are enforceable is debatable).

171

A contractual non-disparagement clause waiving an individual’s First

Amendment right to free speech will generally be enforceable only if it was entered

into knowingly and voluntarily and, under the circumstances, the interest in enforc-

ing the waiver is not outweighed by a relevant public policy that would be harmed

by enforcement. Overbey v. Mayor of Baltimore, 930 F.3d 215, 223 (4th Cir.

2019). In addition, in the wake of the Harvey Weinstein scandal and the #MeToo

movement, California enacted legislation prohibiting employment contracts and

settlement agreements from containing non-disparagement clauses restricting an in-

dividual’s right to disclose information regarding sexual harassment and other un-

lawful activities. Cal. Civ. Proc. Code § 1001 (2022); Cal. Gov’t Code § 12964.5

(2022).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 40 28-JUL-23 16:30

192 Harvard Journal of Sports & Entertainment Law / Vol. 14

an exclusivity provision to bar the subject from speaking about a matter of

public interest with a news outlet is questionable given the free speech ob-

jections the subject and outlet could plausibly raise. So here, too, the func-

tion of a broad exclusivity clause could be predominantly in terrorem.

Knowing that they have executed such a clause, a subject is less likely to tell

their story publicly. If a studio were to learn that a subject were contemplat-

ing doing a media interview, they could remind the subject of the exclusiv-

ity clause in an effort to prevent them from doing so.

172

4. Access and Cooperation

Life story agreements secure subjects’ cooperation with a project both

by engaging their help with the production and by preventing disparage-

ment.

173

Many docudrama subjects are not well known enough that the de-

tails of their lives are in the public record.

174

Extensive research can be

necessary to acquire enough detail to tell the subject’s story richly. Many life

story agreements thus include provisions requiring subjects to be inter-

viewed at length and to provide access to source material, such as journals,

news clippings, notes, photographs, or family albums, that may help the

writers to tell their story.

175

Access clauses may also obligate subjects to

secure the cooperation of other people essential to the project, such as friends

and family members.

176

One principal feature of access clauses is to require subjects to be avail-

able to give commentary and advice on the script or film during its produc-

172

See Anonymous Interview #5 at 10 (indicating that these clauses are enforced

informally by reminding subjects of their existence rather than via litigation); cf.

Anonymous Interview #8 at 14 (recalling no instances of breach of life rights agree-

ments in their practice experience). A studio would, however, be more likely to

aggressively enforce an exclusivity provision in the event of a more consequential

breach, such as where a subject sought to execute another life story rights deal with

a competing studio. In that case, the breach would threaten the viability of the

studio’s project, rather than just marginally sating the public appetite for informa-

tion about the subject.

173

Garon, supra note 116, at 315 (noting that many life story deals entail “ac-

tive assistance” with, not just passive agreement to, the project).

174

Anonymous Interview #8 at 2 (explaining that life rights agreements secure

access to “things that aren’t accessible publicly” such as “photos and home videos

and whatever else”).

175

See Anonymous Interview #3 at 6 (observing that the subject may “have ac-

cess [to] materials that you really want that are going to enhance the story or the

script. And so you get that cooperation even if, under the law, you don’t need it.”).

176

Anonymous Interview #6 at 7 (cooperation clauses often extend to securing

cooperation from family and friends).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 41 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 193

tion, in some cases in exchange for additional compensation. Studios may

want, perhaps even need, some subjects to advise on the project to assure

realism. They will want other subjects to stay away to avoid unwanted inter-

ference.

177

For example, with Inventing Anna, Anna Sorokin consulted on the

Netflix production, including by meeting with actress Julia Garner, who

played her, while Sorokin was still in prison.

178

And consulting with a sub-

ject, especially one who may be opinionated or even hostile toward the pro-

ject, can assure that they approve, or at least do not feel blindsided by, the

final version.

179

Access clauses may also prohibit the subject from publicly disparaging

a production. Especially where the subject of a life-based project is well

known, the project could fail both critically and commercially if the subject

were to trash it in the press.

180

For example, in 2011, Equinoxe Films re-

leased Winnie Mandela, a dramatization based on an unauthorized biography

of Mandela.

181

The filmmakers did not secure a life story agreement with

Mandela and declined her requests to be involved in its production. Before

the film release, Mandela publicly distanced herself from the project, ques-

tioning its truthfulness and calling it an “insult.”

182

Likely in part because

its beloved subject disparaged it before it even hit theatres, Winnie Mandela

failed at the box office and was panned by critics.

183

This fiasco may have

been avoided had the studio secured Mandela’s cooperation, or at least pre-

vented her public disparagement of the project.

184

Life story agreements may

thus seek to secure the goodwill of both the subject and the public. As

177

Anonymous Interview #5 at 4 (“[I]t depends on what kind of relationship

you want to have with that person. Sometimes, you want to have a collaborative

relationship. You really want them involved in the production. [While] sometimes

you don’t want these people involved at all in your project[.]”).

178

Baker, supra note 6.

179

Anonymous Interview #5 at 8.

180

Anonymous Interview #3 (“[S]ometimes you just want to do a deal . . . be-

cause the [subject is] super influential or they have an angle, a lever they can pull to

either enhance the success and the marketing and the publicity of the production, or

to the contrary, put a torch to it.”).

181

Winnie Mandela (Equinoxe, 2011).

182

David Smith, Winnie Madikizela-Mandela ‘insulted’ by movie about her life, The

Guardian, June 14, 2011, https://perma.cc/4SJX-2ZNQ.

183

See, e.g., Rotten Tomatos, rottentomatoes.com/m/winnie_mandela (last vis-

ited Apr. 22, 2022) (only 15% of critic’s reviews were positive).

184

Criticism by figures not covered by non-disparagement commitments does

not necessarily sink a film. Tom Ford publicly excoriated the docudrama House of

Gucci, but this did not prevent the film from earning a broad viewership. Priya

Elan, Tom Ford ‘laughed out loud’ during House of Gucci screening, The Guardian, Nov.

30, 2021, https://perma.cc/AE8P-V7TG

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 42 28-JUL-23 16:30

194 Harvard Journal of Sports & Entertainment Law / Vol. 14

basketball legend Ervin “Magic” Johnson said of the recent HBO

docudrama Winning Time, which did not seek cooperation from him or other

team members, “You gotta have the guys.”

185

Even though a subject’s story

may be told without executing a life story agreement, telling a story

—

espe-

cially the story of a sympathetic subject

—

without their permission can cre-

ate bad optics for studios and generate negative PR.

186

5. Valuing Life Stories: Compensation

Perhaps the most important feature of a life story deal, at least from the

subject’s standpoint, is compensation.

187

Yet, often compensation is far less

than the subject expects or the public imagines. Studio executives and en-

tertainment lawyers alike report that while subjects increasingly think they

are entitled to huge paydays, life story deals tend to disappoint these expec-

tations.

188

Thus, as one commentator notes:

Unless the person whose life rights you’re acquiring is a world leader, pop

culture icon, or unquestionably revered household name, the rights are

worth considerably less than you think. While most people assume their

life rights will sell for at least $500,000 to north of $1 million, most life

rights are offered $35,000-$75,000. Thus, many deals get squashed before

they get started, because the people who are selling their life story feel

slighted by the offer. Sure, there are the occasional seven-figure deals, but

those are reserved for stories that wrangle enthusiastic interest from A-list

actors, coupled with a major studio that’s willing to spend $50-$75 mil-

185

Selome Hailu & Ramin Setoodeh, Magic Johnson’s Next Shot: The NBA Legend

on Changing Lakers History, HIV Activism and His Revealing Apple Docuseries, Variety,

Apr. 5, 2022, https://perma.cc/CYC3-329K. Though there is no indication that

Johnson has threatened litigation over HBO’s Winning Time, former Lakers coach

Jerry West, who is portrayed in the series, has threatened suit. See Check Schilken,

Jerry West: ‘If I have to, I will take this all the way to the Supreme Court’, LA Times, Apr.

26, 2022, https://www.latimes.com/sports/story/2022-04-26/jerry-west-supreme-

court-hbo-winning-time-showtime-lakers.

186

Anonymous Interview #5 at 7-8 (noting that even though studios can usually

tell stories without permission, they still do life story deals to avoid PR and because

they “want to do right by” the subjects).

187

In rare cases, a subject may grant a producer life story rights for free because

they are eager to have their stories told publicly. Anonymous Interview #8 at 8

(noting that even high-profile individuals may assign life story rights with no com-

pensation if they strongly want to have their story told in film).

188

See Anonymous Interview #1 at 8 (“[T]hey all think[ ] that it’s going to be a

life-changing amount of money, and it isn’t.”); Anonymous Interview #3 at 7

(“People have unreasonable expectations in this business. They think, ‘Oh you’re

making a movie based on me. I’m never going to have to worry about money for the

rest of my life.’”).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 43 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 195

lion or more on the production, plus $25-$35 million more in [print and

advertising.]

189

The two traditional drivers of price in a life story acquisition have been

a subject’s preexisting notoriety and whether the medium is film or televi-

sion,

190

though the increasing reach and prestige of streaming features may

be changing this conventional wisdom. It has been rumored that Apple

TV+ recently paid upwards of $25 million to secure rights from NBA

superstar Ervin “Magic” Johnson for its series They Call Me Magic.

191

In most cases, the subject of a life story acquisition is paid only when

the deal is completed. As noted above, nearly all life story acquisitions are

preceded by option agreements, where a producer pays the subject a much

smaller amount in exchange for the exclusive right to shop the story to

studios or networks. These option fees seldom exceed 10% of the agreed-on

price for the subject’s life story and may be nominal or even zero.

192

In addition to up-front payments for the acquisition of life story rights,

producers occasionally offer subjects a small percentage of the film’s net

profits. In theory, this form of “back end” compensation incentivizes sub-

jects to root for the project’s success and to cooperate more willingly with

the producer. Nevertheless, given the economics of the film industry and the

aggressive accounting mechanisms used to compute a film’s net profits, few

productions actually result in the payment of this form of compensation to

subjects.

193

Why are compensation amounts low, at least as compared to the astro-

nomical dollar values sometimes paid to top actors, directors and studio

189

Hammad Zaidi, 3 Things You Need to Know About Acquiring Life Rights, Going

Bionic Column, Mar. 13, 2017, https://goingbionic.com/2017/03/13/3-things-you-

need-to-know-about-acquiring-life-rights/. See also Anonymous Interview #5 at 5

(most film life story fees are in the range of zero to $250,000); Anonymous Inter-

view #7 at 14 (stating that most deals are in the $20,000 to $250,000 range,

though a handful are in the higher six figures).

190

Appleton & Yankelevitz, supra note 112, at 31 (“Generally, purchase prices

for life rights in connection with feature films will fall within the range of

$100,000 to $250,000. For television projects, the range is usually $25,000 to

$100,000”); Anonymous Interview #6 at 12 (estimating the life rights for a “Hall-

mark TV movie” at $25,000 to $75,000).

191

Christian Rivas, Apple TV+ wins bidding war for Magic Johnson docuseries, Sil-

ver Screen and Roll (Nov. 6, 2021), https://www.silverscreenandroll.com/2021/11/

6/22765953/lakers-news-magic-johnson-docuseries-details-apple-tv-plus.

192

Anonymous Interview #4 (option price may be as low as “a dollar”).

193

See Anonymous Interview #1 at 9 (making this point by reference to financial

practices designed to shortchange performers, a practice known as “Hollywood

accounting”).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 44 28-JUL-23 16:30

196 Harvard Journal of Sports & Entertainment Law / Vol. 14

executives? One reason is that a key feature of life story agreements is the

subject’s waiver of claims against the producer. Even if a subject could win a

defamation or right of privacy lawsuit against a major film studio, reputa-

tional damages tend to be modest, especially for the majority of docudrama

subjects who are not famous. So, at a price point above about a million

dollars, studios could be better off making the film and letting the subject

sue them.

194

Another reason for low prices is that most life story deals are for televi-

sion projects, where budgets are lower than those of feature films. Moreover,

even in feature films, stories based on real life, with the possible exception of

some war films or Titanic, are seldom big-budget productions with massive

special effects, expensive computer animation and exotic on-location shoots.

As a result, the production’s budget to acquire life story rights must remain

modest.

6. Granularity

Many notable individuals have lived long and interesting lives, includ-

ing many episodes worthy of dramatization. As a result, life story deals are

often limited to a particular portion of a subject’s life

—

their time in college,

the military or public office, their investigation (or commission) of a partic-

ular crime, or the events leading up to a notable victory or achievement.

195

Periods not covered by the agreement are generally considered off-limits to

the producers and may be sold by the subject for use in other projects.

Disputes can arise if agreements are not specific enough in this regard

and a subject lives past the period that was originally depicted in a produc-

tion. For example, when Christine Sizemore sold her story to Twentieth

Century-Fox in 1956 for The Three Faces of Eve, the obvious subject of interest

was her experience with, and treatment for, multiple personality disorder.

More than thirty years later, however, Sizemore wrote a book about her post-

treatment life and granted an option for its film dramatization to actress

Sissy Spacek.

196

Twentieth Century-Fox, however, claimed that it owned

rights in the entirety of Sizemore’s life and contested Spacek’s option.

197

194

As one industry lawyer put it, “[y]ou’re not going to make a movie unless

you’re an idiot that results in $30 million of damages,” or anything close to that

amount, so life rights deals seldom approach that level. Anonymous Interview #3 at

195

See Appleton & Yankelevits, supra note 112, at 31.

196

Rudell, supra note 105.

197

Id. It appears that the dispute was eventually settled on undisclosed terms.

Lentzner, supra note 108, at 627 n.1.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 45 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 197

Time periods are not the only variables as to which life story deals can

become granular. Like copyrights,

198

life story rights are divisible, so that

separate rights can be granted with respect to the production of films, tele-

vision shows, books, magazine articles, podcasts and merchandise, as well as

series, sequels and remakes of the original production.

199

While subdividing

life story rights into multiple units for licensing to different entities can

help an individual to maximize the return from his or her life story rights, it

can also create confusion and disagreement. For example, the press has re-

ported on a dispute between two production companies that sought to create

film versions of the life of Richard Williams, the father of tennis stars Serena

and Venus Williams. One company putatively acquired the right to produce

a film based on Richard Williams’s autobiographical book Black and White:

The Way I See It,

200

while another seemingly acquired life story rights from

Williams himself.

201

Such acquisitions of the same stories from multiple

sources is not uncommon.

202

All of these examples illustrate the many

dimensions of granularity that life story agreements can address.

7. Creative Control

As discussed above, life story deals typically require subjects to waive

their right to make claims based on the how they are depicted in a film or

television show. Some industry insiders stress that the very point of a life

story deal is that the studio can make whatever film it wishes about the

subject.

203

Nevertheless, against the advice of counsel,

204

producers some-

times give their subjects the right to review or approve these depictions at

certain stages during the production. Such approval rights, if granted, usu-

ally occur at the stage of the treatment (story outline), selection of screen-

198

See 17 U.S.C. § 201(d)(2) (“Any of the exclusive rights comprised in a copy-

right, including any subdivision of any of the rights specified by section 106, may

be transferred . . . and owned separately.”).

199

See Appleton & Yankelevits, supra note 112, at 31.

200

Richard Williams, Black and White: The Way I See It (2014).

201

See Ashley Cullins, Father of Venus and Serena Williams Headed to Court Over

Film Adaptation

Hollywood Reporter

(Jun. 24, 2020)

www.hollywoodreporter.com/business/business-news/venus-serena-williamss-father-

headed-court-life-story-rights-1300118/.

202

See Grunfeld, supra note 29, at 516.

203

Anonymous Interview #7 at 11 (“[Y]ou want to tell your own story, your

own version of the story. That’s what screenwriters want.”).

204

See Rodner, supra note 163 (“Many times the subject asks for script approval

or some control over how he is portrayed. This is something a producer should try

to avoid at all costs.”).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 46 28-JUL-23 16:30

198 Harvard Journal of Sports & Entertainment Law / Vol. 14

writer, casting of talent, or review of a draft script, but seldom at the final

script stage, and never after filming has commenced.

205

Traditionally, such

approval rights have only been granted to famous subjects like Hugh Hef-

ner

206

and George M. Cohan,

207

though there appears to be an increasing use

of these clauses in recent years.

In lieu of blanket approval rights, an increasing number of life story

agreements contain provisions restricting the producer from depicting the

subject engaging in particular forms of off-limits behavior, such as con-

ducting illegal or immoral acts, swearing or cursing, or being portrayed in

sexual situations.

208

While provisions like these give the subject less artistic

and creative control over the project, they are less in tension with producers’

desire to make the feature they want.

D. Life Story Acquisitions versus Releases and Other Agreements

It is important to distinguish life story agreements from other types of

agreements used in the entertainment industry. The first is the simple “ap-

pearance” or “depiction” release, in which a subject agrees not to sue the

producer on any theory, usually premised on accurately representing the

subject.

209

As this latter condition indicates, the simple release is most com-

mon for documentary subjects as well as individuals briefly portrayed in

docudramas.

210

Given the multiplicity of legal claims that may be brought

by even minor characters depicted in a production, E&O insurance carriers

often require that a producer at least obtain releases from all living persons

recognizably portrayed in a production.

211

205

See Appleton & Yankelevits, supra note 112, at 32.

206

Id.

207

Aquino, supra note 86, at 27, 53 (for the 1942 musical film Yankee Doodle

Dandy, composer George M. Cohan was reportedly granted the right to approve

both the script and the actor who would portray him).

208

Anonymous interview #9, Anonymous interview #10.

209

See Anonymous Interview #8 at 6-7 (describing the simple “appearance

release”).

210

Anonymous Interview #4 at 11-13 (explaining that documentaries often exe-

cute simple releases rather than full life story rights agreements with their subjects,

and that the same is true with more peripheral characters in docudramas). Studios

will also use the simple release to secure the right to portray individuals inadver-

tently included in any scene shot in a public place, often for no or little considera-

tion. Anonymous Interview #1 at 12 (production assistants will often give people in

the background of shots in public venues $100 in exchange for signing a quick

appearance release).

211

See Grunfeld, supra note 29, at 530 (noting that in the docudrama Kent State,

the producers were required to obtain depiction releases from 85 individuals). See

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 47 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 199

The life story rights agreement, as we have discussed above,

212

secures

the producer substantially more rights.

213

While simple appearance releases

are more common for documentaries and life story acquisitions are more

common for docudramas,

214

life story rights may be secured for documenta-

ries if the producer wishes to enhance the project by obtaining the subject’s

exclusivity or cooperation.

215

Finally, participants in reality-television

projects sign much more robust agreements that grant the producer the

right to use the subject’s name and likeness for any purpose and without

limitation.

216

***

This Part II offers a solution to the puzzle posed in Part I: Why do

studios pay to acquire life story rights if they don’t exist? The answer is that

life story deals do not convey affirmative property-like interests, but instead

comprise complex agreements with a remarkably stable character. This Part

has adumbrated the core features of those deals, which comprise a grant of

rights, a waiver of claims and covenant not to sue, an exclusivity commit-

ment and an agreement to cooperate with production. In Part III, we turn to

the bigger-picture themes raised by this descriptive account.

also notes 138-139, supra, and accompanying text (discussing requirements for E&O

insurance).

212

See Part II.C, supra.

213

Some entertainment lawyers also noted an additional category, the “heavy

appearance release”, that includes a release and some but not all of the features

typical of a full life story agreement. See Anonymous Interview #8 at 6 (referring to

a “heavy appearance release”).

214

Garon, supra note 116, at 307, 314 (discussing releases in the context of

documentaries, and observing that life story rights are more relevant for filmmakers

“pursing narrative film based on a person’s true story”).

215

See Sections II.C.3 and 4, supra (discussing cooperation and exclusivity fea-

tures of life story deals).

216

Reality television contracts prospectively require contestants to relinquish

any control or right to sue over the content that they will participate in creating

with the studio. Life story rights deals retrospectively cede to the studios the right

to sue for damages arising out of a feature based on their life. See Anonymous Inter-

view #6 at 16-22 (detailing the operation of reality TV agreements). Because these

agreements more closely approach the contracts actors sign with studios and are

distinct from life story rights, see id. (distinguishing life rights deals from reality TV

deals and comparing the latter to actor’s agreements), we say little about them in

this Article.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 48 28-JUL-23 16:30

200 Harvard Journal of Sports & Entertainment Law / Vol. 14

III. Deconstructing Life Story Rights

Life story rights are not formal property interests, but four distinct

contractual relations (permission, waiver, exclusivity, and access) that are

bundled together under a common label. In this Part, we discuss the twin

underlying motivations for this bundling: private ordering and transactional

efficiency.

A. Life Story Rights as Private Ordering

—

The Interplay of Law and Norms

We begin this Part with an origin story. Part II described the begin-

ning of life story deals in the Golden Age of Hollywood. But why, precisely,

did these early producers seek out and acquire such non-existent rights? To

answer this question, we return to the puzzle that gave rise to this article:

Why do studios pay for life story rights when such rights don’t exist? This

puzzle is puzzling, though, only if one makes what Robert Ellickson has

called the “legal centralist” assumption that only state-created laws govern

our conduct.

217

Our assertion that life story rights do not exist means only

that there is no behavioral obligation backed by a state sanction giving indi-

viduals a property-like interest in their life stories.

218

But law is not the only

source of regulation. Many of the rules that govern our behavior are not

found in judicial opinions or statutory codes, but arise spontaneously out of

practices that are repeated over time until they form a kind of informal

regulation

—

a social norm

—

that does not emanate from the state but still

affects and shapes our conduct.

219

And of course parties can also use private

agreements to reconfigure law’s baselines. In this Subpart, we expound on

the origin of life story rights as an interaction between these two forms of

private ordering: contract and norms.

Over the past several decades, scholars have shown how norms can fill

in the “negative spaces” left unprotected by intellectual property law. This

work tends to follow a common model: the creative production of some

community is unprotected by intellectual property law, and that community

reacts by creating an extralegal system of protection for that content. For

example, stand-up comedians’ jokes are unprotected by copyright because

217

Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (3d

prtg. 1994).

218

See Robert Cooter, Do Good Laws Make Good Citizens? An Empirical Analy-

sis of Internalized Norms, 86 Va. L. Rev. 1577, 1579 (2000).

219

See Robert Cooter, Decentralized Law for a Complex Economy: The Struc-

tural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev.

1643(1996).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 49 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 201

they are told extemporaneously during in-person performances, hence not

fixed in any tangible medium of expression.

220

Sprigman and Oliar showed

that comedians have reacted to this lacuna in IP law by forging a norm-

based system of protection that uses a combination of shaming, exclusion,

and even violence to discourage comedians from using one another’s jokes.

221

The institution of securing life story rights initially appears to be an-

other example of this kind of norms system. For one thing, this practice

operates in a space left untouched by IP or IP-adjacent law. Law secures no

rights in one’s life story; life story deals provide an alternative source of

protection for the facts of subjects’ lives. Also, the setting in which these

deals have emerged has all the indicia necessary to give rise to stable norm-

based regulation. Ellickson’s cornerstone work on norms among cattle

ranchers in Shasta County illustrates that norm-based systems arise where

three conditions are met. First is the presence of a closely knit group that

recognizes and is governed by the norm. Second, and relatedly, repeated

interactions over time must allow the norm to become familiar and well-

accepted. Third, some mechanism for sanctioning violators must assure that

the norm is taken seriously even in the absence of state sanctions.

222

The entertainment industry that trades in life story rights has several

indicia of a close-knit community. First, it possesses a degree of the geo-

graphic concentration (if not isolation) that characterized the ranchers that

Ellickson studied. While film and television productions today are made

globally, the epicenter of the business of entertainment in the United States

continues to be Los Angeles. LA is not only the headquarters of the rela-

tively small number of major studios and firms in show business, but it is

also where a disproportionate percentage of the human and industrial capital

220

17 U.S.C. 102(a) (copyright vests only in original works of authorship fixed

in tangible media of expression).

221

See Dotan Oliar & Chris Sprigman, There’s No Free Laugh (Anymore): The Emer-

gence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L.

Rev. 1787 (2008). Other examples and variations abound. The copyrightability of

tattoo artists’ work is debatable, but in any event it has given rise to a system of

community norms to regulate and prevent copying. See Aaron Perzanowski, Tattoos

& IP Norms, 98 Minn. L. Rev. 511 (2013). Norm-based regulation may also arise

where IP is effectively but not substantively unavailable, as with roller derby names.

See Dave Fagundes, Talk Derby to Me: Emergent Intellectual Property Norms in Roller

Derby Pseudonyms, 90 Tex. L. Rev. 1093 (2012) (showing that derby skaters created

a norm-based system of regulation for their skate names because federal trademark

registration was too costly).

222

Ellickson, supra note 217 at 167.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 50 28-JUL-23 16:30

202 Harvard Journal of Sports & Entertainment Law / Vol. 14

necessary to produce film and television is located.

223

The industry is also

notoriously insular as compared to many other contemporary businesses, so

much so that it operates to a large extent by reputational capital and word of

mouth.

224

One industry insider told us that there are only a dozen or so law

firms in LA that specialize in the industry to the degree that they all know

one another and their respective practices, and view outsiders as lacking the

requisite industry experience and knowledge to make deals efficiently.

225

Second, and relatedly, norms arise within close-knit communities only

if they are iterated frequently over time. This matters because norms, unlike

state-created law, lack an external referent to make their existence and con-

tent unambiguous. Through repeated practice, though, norms become “in-

ternalized” in actors, so that they are made effective even in the absence of a

statute or judicial decision enshrining them.

226

Here, the practice of acquir-

ing life story rights from the subjects of docudramas is the subject of repeat

play in several senses. The practice of securing life story rights is as old as

the docudrama itself, one that dates back at least as far as the 1940 Sergeant

York film.

227

In the more than eight intervening decades, it is likely that

Hollywood executives have inked thousands of these deals. The insistence on

these deals by influential external players, such as insurers and distribu-

tors,

228

reinforces the norm. These multiple points of iteration over a long

span of time have caused industry insiders to internalize the life story deal as

a practice, even though it is not explicitly required by law.

Finally, the enforcement mechanism for life story rights seems obvious:

courts could intervene to enforce these agreements as a matter of contract

law. Yet, this is not the account that industry insiders tell. In fact, violations

of life story agreements are so rare that most interview subjects could not

223

Jonathan M. Barnett, Hollywood Deals: Soft Contracts for Hard Markets, 64

Duke L.J. 605, 633 (2015) (“Hollywood exhibits some, but not all, of the characteristics

of the close-knit environments in which reputation-based transacting has been most

convincingly documented. Hollywood is at best a relatively small world populated

by firms and individuals that do business with each other repeatedly: six major

studios, three major talent agencies, a handful of mini–major studios, a larger num-

ber of independent production companies, a small group of high-value talent, and a

much larger group of lower-value talent consisting of tens of thousands of actors.”).

224

See Gary M. McLaughlin, Oral Contracts in the Entertainment Industry, 1 Va.

Sports & Ent. L.J. 101, 129-31 (2001) (“the entertainment industry shares many of the

characteristics of a small, close-knit business community”).

225

Anonymous Interview #10.

226

See Cooter, supra note 218 at 1577-80 (discussing the phenomenon of norm

internalization).

227

See Part II.A, supra.

228

See Section II.B.3, supra.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 51 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 203

recall a single instance of a subject flouting them or a claim of breach by

either studios or subjects. This absence of state enforcement suggests that

enforcement is also a matter of norms rather than law. This norm-based

enforcement has two valences. One is endogenous. The entrenched character

of life story deals in the entertainment industry means that industry actors

have internalized the norm in favor of honoring such deals, and they follow

it reflexively. Cooter has shown that most norms systems rely to some extent

on internalization, with actors complying due to their own distaste for

deviation rather than fear of some external sanction.

229

One industry insider

reported that while Hollywood players are thought of as amoral “sharks,”

there is some intrinsic sense of morality that leads them to respect norms

and agreements, and that this in part explains the industry’s near-perfect

rate of compliance with agreements granting life story rights.

230

Internalization is not the only source of enforcement for life story deals.

There are exogenous pressures toward compliance as well. Dealmakers who

may otherwise be willing to flout norms are to a large extent deterred by the

risk of social sanctions in the form of exclusion from professional relation-

ships. The entertainment industry’s close knit character means that reputa-

tional capital is at a premium and exclusion sanctions can be killers.

231

Several industry insiders explained that failing to respect an executed life

story deal would brand the violator as untrustworthy and complicate if not

end their career.

232

Even more than threats of litigation, studios appear to

comply with life story deals because they recognize that if they do not, then

(as the old Hollywood shibboleth runs) they’ll never work in that town

again.

233

Subjects of docudramas are not necessarily members of the entertain-

ment community and so may not be constrained by internalization. Inter-

view subjects reported, though, that even when subjects complained to

studios about their portrayal, those complaints rarely resulted in litigation.

229

See Cooter, supra note 219 at 1694 (arguing that the internalized compulsion

to comply with norms is equally if not more effective in controlling behavior than

the threat of external sanctions for norm violation). See also Dave Fagundes, The

Social Norms of Waiting in Line, 41 L. & Soc. Inquiry 1179, 1189 (2017) (citing

research showing that people queue more because of internalized norms than exter-

nalized threats of sanction).

230

Anonymous Interview #11 at 13.

231

Cf. Oliar & Sprigman, supra note 221 (comedians who are excluded from

comedy clubs due to reputations as “joke thieves” can find their careers derailed).

232

See, e.g., Anonymous interview #12.

233

This classic threat can be traced back to strong-armed producers like Louis B.

Mayer during Hollywood’s Golden Age. See Scott Eyman, Lion of Hollywood:

The Life and Legend of Louis B. Mayer 355 (2005).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 52 28-JUL-23 16:30

204 Harvard Journal of Sports & Entertainment Law / Vol. 14

Rather, aggrieved subjects almost invariably submit to the in terrorem effect

of an agreement once studios remind them of the broad language to which

they agreed.

234

The practice of bargaining for life story rights is, however, different in

salient ways from these other norms systems. For one thing, life rights deals

promise studios packages of amenities beyond just the “grant” of the sub-

ject’s life rights. The part of these agreements that is not rooted in IP law

thus is not the only part doing real work; on the contrary, many subjects

reported that securing cooperation or waiver were significant motivations in

landing these deals. Moreover, not all studios secure life story rights before

producing docudramas. Estimates vary, but anywhere from 20-50% of life-

based films proceed without such a deal.

235

If there were a strong norm in

favor of securing life story rights, we would expect the practice to be nearly

universal, and for the explanation to sound in terms of expected compliance

with social practices rather than pragmatism.

So is the practice of acquiring life story rights a norm-based system?

The answer is both yes and no, and depends on which stage of the deal

process one looks at. The formation of these deals does not appear to be the

product of norms, but rather a business decision made on a cost-benefit

basis. This makes sense since the deals are between industry insiders (stu-

dios) and outsiders (subjects), so the parties do not operate within the same

close-knit community. But with respect to enforcement, norms do signifi-

cant work. Interviewees reported a surprising absence of breach or even stra-

tegic behavior with respect to life story deals, even though rational choice

would suggest that larger studios in particular could poach subjects from

independents, who lack the capital to recover damages in litigation. The

near-perfect compliance with these agreements is a function of strong norms

within the entertainment industry holding people in line due to internalized

respect for this practice and fear of reputational sanctions.

This discussion illustrates that the question should not be whether

this, or any, regulatory system is driven by norms or law. While some may

be products almost entirely of one or the other, the institution of life story

rights bears features of each. The formation of these deals is more a matter of

rearranging the law’s baselines through private agreements due to practical

cost-benefit calculations. But the enforcement of these deals involves neither

legal sanctions nor their threat. It is instead stitched together by an internal-

234

See Anonymous Interview #1 (stating that the in terrorem effect of life story

rights agreements deters most subjects from following through on threats of suit).

235

See supra note 15 (estimates of percentage of docudramas involving life story

acquisitions).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 53 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 205

ized sense of right and wrong as well as a fear of being deemed a bad cooper-

ator. Framing the question whether a regulatory system is norm- or law-

based wrongly assumes a binary choice between two options. Perhaps the

better way to think about the issue is that regulation may contain features of

both norms and law, and that the two can work in combination (as here) to

supplement each other.

B. Transactional Efficiency

As noted in the Introduction, the general concept of life story rights is

familiar not only to entertainment law experts but to non-experts and even

members of the general public. As a result, almost anyone who has been

exposed to popular culture and media has a rough notion that there is a

practice of selling one’s “life story.” Yet it is also likely that few non-experts

could draft, negotiate, or even understand, the details of a typical life story

agreement. This divide is, of course, neither surprising nor unusual. The

conceptualization of life story rights as a “thing” arose as a convenient

method for labelling a more diffuse and abstract set of contractual relations

between parties (i.e., authorization, waiver, access and exclusivity, plus the

secondary elements discussed in Part II.C). This bundling of contractual ele-

ments under the unitary label of life story rights thus creates a convenient

transactional module that facilitates transactions, reduces information costs,

avoids litigation and serves a valuable signaling function to the market.

1. Modularity, Standardization and Information Costs

Modularity is a concept that is useful across all fields that involve the

interaction of components and systems within a whole. Whether a product

is a commercial jetliner, a software operating system or a smartphone, its

myriad subsystems are often developed independently and assembled to op-

erate with one another through a series of common interfaces.

236

Modu-

larization of this kind goes hand in hand with standardization: while it is

beneficial for a product designer to organize a complex system into a series

of more manageable subunits, it is even more beneficial for those subunits to

be interchangeable and available from any producer that adheres to a com-

mon set of protocols. The ability of different manufacturers to produce the

components of a complex system enables greater specialization in compo-

236

See Henry Smith, Property as Platform: Coordinating Standards for Technological

Innovation, 9 J. Competition L. & Econ. 1057, 1058 (2013); Carliss Y. Baldwin

& Kim B. Clark, Design Rules: The Power of Modularity 6, 63-64 (2000).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 54 28-JUL-23 16:30

206 Harvard Journal of Sports & Entertainment Law / Vol. 14

nent design and manufacture

237

and can result in greater efficiency, reduced

costs and improved quality of both the standardized components and overall

systems.

238

Henry Smith has demonstrated that the principles of modularization

and standardization can also be applied to legal doctrine, particularly the

rules surrounding property. As Smith explains,

To serve as a platform for private interactions, the law of property employs

modules and interfaces. By setting boundaries around clumps of interac-

tions (modules) and defining the permitted interface between them, the

system can manage the complexity of private interactions. Because interac-

tions take place in one or a few modules and not the system as a whole,

modularization permits specialization. For example, an owner can special-

ize in developing and exploiting information about the asset she owns.

Remote parties need not know anything about the owner or her plans; the

law of trespass and theft merely direct them to steer clear in a fashion that

is simple and easy to comply with.

239

Smith also observes that the modularization of property rights reduces

information costs, as parties need only observe and comprehend the features

exhibited by a module as a whole, rather than all of its constituent

elements.

240

The production of a feature film or television series can likewise be

conceptualized as an assembly of different modular contractual arrangements

with actors, screenwriters, composers, set designers, location managers, dis-

tributors, promoters and the like. In his analysis of Hollywood deals,

Jonathan Barnett refers to the efficiencies and value enhancement that stu-

dios can achieve through “fractionalization” (modularization) of the differ-

ent functions involved in the production of a motion picture.

241

When life story rights are conceptualized as a single legal module,

rather than a bundle of diverse jural relations, similar efficiencies are

237

Smith, Property as Platform, supra note 236, at 1058; Baldwin & Clark,

supra note 236, at 33.

238

U.S. Dep’t Just. & Fed. Trade Comm’n, Antitrust Enforcement and Intellec-

tual Property Rights: Promoting Innovation and Competition 33 (2007) (“Stan-

dards can make products less costly for firms to produce and more valuable to

consumers. They can increase innovation, efficiency, and consumer choice; foster

public health and safety; and serve as a fundamental building block for international

trade.”).

239

Smith, Property as Platform, supra note 236, at 1058.

240

Smith, Law of Things, supra note 14, at 1708. See also Rose, supra note 14, at

70–71.

241

Jonathan M. Barnett, Why is Everyone Afraid of IP Licensing?, 30 Harv. J. L. &

Tech. 123, 138–41 (2017). See also Barnett, Hollywood Deals, supra note 223.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 55 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 207

achieved. Most Americans understand, at a high level, what legal rights

they obtain when they rent a car. Because automobile rental contracts are

largely standardized, parties can effectuate highly efficient transactions.

Rather than worrying about the contractual details, a consumer renting a car

can focus primarily on price versus make and model, perhaps giving some

attention to the various insurance options offered by the rental company.

Similarly, with life story rights, parties can negotiate a deal with a

single price tag, rather than haggle over the price of separate liability re-

leases, access, and exclusivity provisions. Information costs are further re-

duced because comparisons between prices of comparable life story deals can

be made more readily than comparisons of prices for separate deal

elements.

242

Moreover, the establishment of clear contractual rules regarding the use

and exploitation of an individual’s life story can eliminate the uncertainty

created by variations in state law, and among federal judicial circuits, con-

cerning the right of publicity, privacy and defamation, and how these inter-

act with the First Amendment. Transactional efficiency and certainty are

thus enhanced.

This is not to say, of course, that life story deals are entirely standard-

ized along the lines of residential mortgages or corporate debentures.

243

addition to features that vary among even the most standardized contracts

(e.g., price and asset description), life story agreements can differ both at to

their principal terms (e.g., exceptions to exclusivity, scope of authorization,

nature of cooperation)

244

and secondary terms (e.g., degree of creative con-

trol). These variations are typically negotiated by experts (lawyers), but sub-

jects can have strong preferences concerning, and even emotional responses

to, some of them. Nevertheless, the existence of variations among life story

242

E.g., “If Anna got $X for her life story, then I deserve $Y for mine.”

243

See Marcel Kahan & Michael Klausner, Standardization and Innovation in Corpo-

rate Contracting (Or “The Economics of Boilerplate”), 83 Va. L. Rev. 713 (1997) (corpo-

rate bonds); Joseph M. Perillo, Neutral Standardizing of Contracts, 28 Pace L. Rev.

179, 184–89 (2008) (numerous standardized contract forms); Anna Gelpern & Mitu

Gulati, Innovation after the Revolution: Foreign Sovereign Bond Contracts Since 2003, 4

Cap. Mkt. L.J. 85 (2009) (sovereign bond contracts). In this paper, we have not at-

tempted a systematic, empirical analysis of life story rights agreements. Such an

analysis would be a useful subject of future research.

244

In exceptional cases, one or more of the four principal elements of life story

rights may even be missing. See, e.g., People v. Corona, 80 Cal. App. 3d 684, 703

(1978) (criminal defendant grants his attorney, in lieu of fees, “the exclusive and

irrevocable literary and dramatic property rights in and to my life story and any part

or portion of my life story, and any incidents thereof, both present and future,”

leading to claims of ineffective representation of counsel).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 56 28-JUL-23 16:30

208 Harvard Journal of Sports & Entertainment Law / Vol. 14

deals does not mean that life story rights have not been modularized in a

manner that is efficiency-enhancing. In the end, despite the differences, in-

dustry veterans observe that most life story deals look more similar than

not.

245

2. Litigation Avoidance

Litigation imposes costs on productions, including expense, delay and

uncertainty. As a result, producers, and insurance carriers have adopted prac-

tices intended to reduce the risk that a particular production will be subject

to litigation. The acquisition of life story rights from individuals depicted in

docudramas is such a practice that can give producers “peace of mind.”

246

Subjects from whom life story rights are acquired are occasionally upset

about their portrayal in docudramas, but they rarely sue. As noted in Sub-

part III.A, this may be because when irate subjects approach a producer to

complain about their depiction, the producer’s lawyers can produce the life

story agreement, which clearly shows that the subject gave permission to

depict them in any manner, however fictional and unflattering, and that

they have given up the right to sue the producer. According to the industry

insiders that we interviewed, nearly all subjects drop the issue at this stage

without filing a claim

247

presumably due, at least in part, to the language

granting the producer the right to fictionalize the subjects’ lives.

Thus, even if, as shown in Part I, legal claims brought by depicted

individuals under publicity, privacy, copyright and trademark theories are

unlikely to succeed, such claims can delay a production, increase costs and

introduce at least some risk that the production itself will be enjoined. Ac-

quiring bundled life story rights increase the efficiency of film and television

production by eliminating potentially disruptive litigation risks before they

are incurred. In other words, the decision not to acquire life story rights for a

particular project involves a gamble by the producer: the gamble could pay

off and a project could be released successfully without legal challenge by a

subject, as was the case with Mark Zuckerberg (portrayed in The Social Net-

245

Anonymous Interview #9. Interestingly, the tendency for life story acquisi-

tions to be documented with formal, written agreements runs counter to observa-

tions regarding the prevalence of oral and other informal agreements in Hollywood.

See, e.g., McLaughlin, supra note 224, Barnett, supra note 223. One possible reason

for this divergence from the trend is that, unlike transactions among Hollywood

insiders – producers, directors, studios and talent – life story deals are usually con-

summated with outsiders who are not part of the community and are unfamiliar or

uncomfortable with community norms relating to transactions.

246

Gardner, supra note 23. See also Gibson, supra note 159.

247

E.g., Anonymous Interviews #8, #15.

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 57 28-JUL-23 16:30

2023 / Life Story Rights Puzzle 209

work) and Queen Elizabeth II (portrayed in The Crown). On the other hand,

an irate and determined subject like former LA Lakers coach Jerry West

(portrayed in Winning Time) could bring expensive and disruptive litigation

costing far more than the initial acquisition of life story rights might

have.

248

3. The Signaling Function of Life Story Acquisitions

As noted in the preceding sections, while life story rights do not exist

as recognized property interests, contracting to acquire life story rights facil-

itates transactional efficiency in the entertainment industry. Another indi-

rect function that life story acquisitions play is a signaling one. Cathy

Hwang and Matthew Jennejohn observe that private contracts are intended

for multiple audiences beyond the parties and the courts that may be called

upon to interpret them.

249

Hwang and Jennejohn focus on the intended in-

fluence of contractual arrangements on regulatory authorities,

250

but a wide

range of other audiences for the “signaling” function of private contractual

arrangements also exists. In the case of transactions involving patent rights,

for example, commentators have identified as potential audiences: financial

investors, customers, employees and the public.

251

In a similar vein, life story acquisitions, the general parameters of

which are often made public in the trade press, blogs and social media, send

various signals to the market. First, they generate positive “buzz” for a pro-

ject, thus building public interest and, presumably, greater viewership and

reviews once it is released. Second, the acquisition of a life story acquisition

by a producer signals to other producers that a project covering a particular

story is in the works, potentially dissuading others from pursuing a compet-

248

See Schilken, supra note 185 West’s annoyance at not being paid for his

portrayal in Winning Time might have been exacerbated by the rumors that Lakers

star Magic Johnson was paid upwards of $25 million for a separate Apple TV+

docuseries. See Rivas, supra note 191.

249

Cathy Hwang & Matthew Jennejohn, Contractual Depth, 106 Minn. L. Rev.

1267 (2022).

250

Id.

251

See, e.g., Clarissa Long, Patent Signals, 69 U. Chi. L. Rev. 625, 626 (2002)

(patents convey information about an inventor to the capital markets); Jorge L. Con-

treras, Patent Pledges, 47 Arizona St. L.J. 543, 573–92 (2015) (identifying motives

for unilateral pledges of patent rights including attempts to influence product mar-

kets, regulators and the public); Clark D. Asay, The informational effects of patent

pledges, in Patent Pledges: Global Perspectives on Patent Law’s Private

Ordering Frontier (Jorge L. Contreras & Meredith Jacob eds., 2017) (analyzing sig-

naling function of patent pledges).

\\jciprod01\productn\H\HLS\14-2\HLS205.txt unknown Seq: 58 28-JUL-23 16:30

210 Harvard Journal of Sports & Entertainment Law / Vol. 14

ing project of their own.

252

Finally, a subject’s sale of his or her life story to a

producer can signal to the public the value and authenticity of the subject’s

story, potentially leading to interviews, guest appearances, endorsement

deals, book contracts and other related gains for the subject.

Conclusion

We began this article by pointing out that life story rights are a fic-

tion. There is no legally cognizable interest in the events that occur during

our lives, however influential, emotional or formative they may be to us. Yet

Hollywood has filled this gap with a contractual construct

—

the life story

right. The conceptualization of life story rights in this manner yields trans-

actional efficiencies by reducing information costs, enabling signaling and

avoiding costly litigation. Thus, while acquiring life story rights may not be

legally necessary, such deals today form an essential feature of the entertain-

ment industry.

252

Anonymous Interview #10. This form of signaling can be especially impor-

tant when multiple sources exist for a particular story, such as the Wilson article

telling Anna Sorokin’s story that HBO Max optioned in competition with Sorokin’s

own account sold to Netflix. See Part II.B.2.a, supra.