QUESTION: If I want to tell a true story, what should I do first, second, third? Legal requirements to tell true life stories. (Consult with an experienced entertainment Attorney before you write the story if you are the writer and before you produce the project if they are a producer. Errors and Omissions Insurance will be needed in order to distribute a biopic/based on a true story. Without that protection, oftentimes distributors will not involve with the project.)
Legal Requirements To Tell True Life Stories
Steps you can take to avoid liability from subjects portrayed in your script or film, include:
(1) Obtain Releases:
Even if it may not be legally required, it is best to obtain a release from anyone or anything portrayed in the story including family members, third parties, locations, etc. The key is to create a paper trail to cover your project.
(2) Depiction Releases:
Written releases are required from all persons who are recognizable or whose name, image or likeness is used, especially for private individuals who are not public figures and are still alive. Moreover, if such a person is a minor, the release should be binding which may require Court approval. If a subject is deceased, a release usually is not needed but may be required in some circumstances. Releases are not needed if the recognizable person is part of a crowd or background shot and is not shown for more than a few seconds or given special emphasis. Nonetheless, it is best to obtain as many releases as possible.
(3) Content of the Release:
A sufficient release should:
- Give the right to edit and modify material;
- Give the right to fictionalize the people portrayed; and
- Give the right to market production in all media and markets.
(4) Consider Fictionalization:
If proper releases cannot be obtained, consider changing the identity, names, and location of the people and places portrayed so that they are not identifiable to any living person by the general public.
(5) Include a Disclaimer:
Add an express disclaimer stating that the characters are fictional and any resemblance to any individual is by coincidence.
(6) Maintain Script Annotations and Evidence of Sources:
Maintain all evidence to prove that any alleged defamatory statements are in fact true and to defend against any allegations of invasion of privacy. The script must be annotate by identifying the sources of the information contained in the project. The elements that should be annotated include characters, events, settings, and dialogue. The annotations are typically included in the margins of the script or in footnotes and endnotes. Annotations of characters include:
- whether the character is real, fictionalized, or a composite;
- whether the actual person is living or deceased; and
- for composite characters, what is the actual name of the person and what characteristics the character is based.
Annotations of scenes include:
- Whether the scene is based on fact, inference from actual facts;
- What is the source of the information, including books (stating the book’s title, author, publisher, and pages), newspaper or magazine articles (stating the title, author, publisher, and page), internet sites (stating the author, title, and web address, and date work first appeared if possible), radio or television interviews (stating date of broadcast, station, name of interviewer, and the program name), other interviews stating the name of the interviewee, if notes or recordings exist, transcript page number), deposition or Court transcripts (stating the Court and case number, date, the name of the deponent, and transcript page)
(7) Script Clearance:
An Attorney may require to provide an opinion as to any potential liability before the script goes into production. Many insurance carriers will require an Attorney’s opinion before offering an insurance policy to cover the work.
(8) Errors and Omissions Insurance:
The production company must obtain an Errors and Omissions (E & O) Insurance policy. All potentially liable parties should name as additional insureds in the policy.
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