Entertainment Lawyer Question and Answer Forum:

Welcome to this week's Entertainment Lawyer Q&A, published by The Film & Television Law Quarterly and the entertainment law firm of BLAKE & WANG P.A. Each week an entertainment lawyer will respond to reader questions and publish the best discussions.

Have a question for an entertainment lawyer? Post it on our website at blakewang.com and get the answers you need.

Question:

For a fiction feature film: How identifiable do people on the street (not in the cast) have to be to require signed releases?

Answer by Brandon Blake - Entertainment Lawyer:

Over the years I have gotten more questions about releases than almost any other type of contract. Often among student filmmakers or first-time independent producers the release becomes one of the only documents on set. So in responding to questions about releases first I like to discuss how to define a release, second, where the legal basis for a release comes from, and third, I will comment on when a release of some kind is usually used.

At the most basic level all contracts are the same. A contract is an agreement between two parties where both want something out of the relationship. There is the concept of “consideration”, meaning both sides are getting something of value out of the arrangement. Generally courts hold there must be consideration on both sides to enforce an agreement.

So what is the releasing party getting out of the release? Theoretically, the party signing the release is getting the privilege of being in a film or TV show as some kind of background player. But to the surprise of some producers not everyone wants to appear in a movie or television show. So that is where the legal basis for releases begins.

The legal requirement for releases comes from a number of different laws. Most basically is the right of privacy. The right of privacy may be codified, as it is in California or New York, or it may be a common law principle. California Civil Code, Section 3344 addresses the rights of privacy and publicity in commercial film and television productions in California.

The right of privacy, as it relates to film and television, states that a person has the right to not have their name, voice or likeness used commercially. In addition to the right of privacy, the torts of defamation and false light are both applicable. When someone is recorded there may be certain facts implied by the production. For example, if a person was filmed outside of a demonstration, that might imply he or she was part of the protest. Finally, the right of publicity disallows use of someone’s name or likeness as an endorsement or ad without consent.

So when is a release required? States like California and New York have made it fairly clear that for commercial film and television productions, a person cannot appear recognizably without prior consent. Other states rely on common law standards, so the laws will vary by state and use. But in general, it is by far the standard that everyone appearing recognizably in a feature film should have signed a release or otherwise clearly expressed consent to being recorded.

The definition of terms like “commercial” and “recognizable” are unfortunately subject to dispute, and even in states with well-defined Codes, the application to any particular production is difficult. But producers hoping to get their project commercially distributed, and therefore requiring E&O insurance, should error on the side of more documentation and try to get signed releases from just about anyone possible. As an entertainment law firm, our firm offers a number of packages that can help make it affordable to get the contract and legal help needed on any size of film or television production. Feel free to contact me about how we can help make sure your project has the legal documentation required by distributors and E&O insurance companies.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film projects and television series for more than 14 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

About the Editor:

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online.

About the Entertainment Lawyer Q&A: The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.

Entertainment Lawyer Question and Answer Forum:

Question: Part II

I'm writing/producing a scripted pilot for the web or TV in which the lead character was a performer on a popular TV reality competition show. Can I use the name of the real show or do I have to make up a fictitious name? Also, can I use the real names of her co-stars in conversation?

Answer by Brandon Blake, Entertainment Lawyer:

Last month we discussed the use of titles to movies and television shows and how those titles can be protected. This month I will deal with the use of celebrity names and references in film and television projects.

There are a number of different places where the protection for real names and identities comes from, which are generally based on state statutes or on state common law. The principal areas of law that are involved include defamation, false light, the right of privacy, and the right of publicity. I will assume that trademark is not involved, but if the celebrity has an active trademark in his or her name then you may also want to consider trademark rights, which we discussed in the last newsletter.

Defamation is the oldest and most uniform body of law that addresses the use of a celebrity’s real name, or identifies that celebrity in some other way. Defamation involves saying or publishing false accusations about another person. In order for defamation to apply, the accusations must generally be knowingly false and you need to identify that person. The celebrity’s name need not be used. Anything that would identify the celebrity to other people who know the celebrity would be sufficient.

This could certainly be an issue with a reality show, because part of the drama is the stating of critical statements about other cast members, which may or may not be true. So anytime the statements might be offensive or antagonistic, you want to be careful about defamation. Although there are certain constitutional protections for statements about “public figures”, that protection usually applies to political figures or super stars, and there are a lot more common defamation claims in state court than most producers realize.

False light is similar to defamation, except that the statements about the celebrity do not have to be false. They simply have to put the celebrity in a “false light”, meaning altering the context of the quotes. Even something positive, like glorifying some heroic act could be false light if the depiction of the celebrity is blown out of proportion and is not an accurate statement, even if not completely false.

The right of privacy is still a big gray area in the law, and elements of privacy law can be found in state common law, statues, federal law, and even in constitutional law. It is too broad an area to address fully here, but there are a number of laws and statutes that prohibit publicizing facts that would be considered “private” about another individual. Although reality TV stars seem to avoid any concept of privacy in their careers, it is still a potential source of liability if a producer were to publicize something that could be deemed private about a celebrity’s life.

Finally, the most important protection that a celebrity has in his or her name and likeness is the right of publicity. Celebrities, unlike average citizens, have a commercial right in their persona, which is protected in all states. That is why a celebrity must be paid to make a television commercial or for an endorsement.

The reason that most celebrity references in film and television projects must be cleared with the celebrity or his or her agent is because of the commercial right of publicity. Most references found in television shows or movies really are some type of a covert endorsement. If a producer doubts that fact, then think about whether the value of the show increases or decreases if the celebrity name is replaced by a fictional name. In most cases, producers really are trading on the value of celebrity names by referencing them in projects.

Finally, if the celebrity becomes a large part of the script, such as a supporting character in the project, then that is actually a situation where the celebrity’s life rights should be obtained.

Entertainment Lawyer Question and Answer Forum

Friday, January 9, 2015

Film Releases

Entertainment Lawyer Question and Answer Forum:

Question:

Answer by Brandon Blake - Entertainment Lawyer:

Thursday, January 8, 2015

Protecting Film and Television Titles - Part II

Entertainment Lawyer Question and Answer Forum:

Question: Part II

Answer by Brandon Blake, Entertainment Lawyer: