The Pros and Cons of Life Rights Agreements
By Katie Murphy
This past year saw the release of multiple critically-acclaimed documentaries centered on some of the most influential artists of the past century, including Marlon Brando (Listen To Me Marlon), Kurt Cobain (Montage of Heck), Nina Simone (What Happened, Miss Simone?) and Amy Winehouse (Amy). The involvement of the subject's estate or family in the creation of these films ranged from Kurt Cobain's daughter, Frances Bean Cobain, as executive producer for Brett Morgen's Montage of Heck, to Mitch Winehouse speaking out about his initial cooperation with (and later disavowal of) Asif Kapadia's Amy. To discuss navigating life rights and estates, we spoke with Lisa Callif, an entertainment attorney and partner at the Los Angeles law firm Donaldson + Callif, and Stevan Riley, the writer, editor and director behind Listen To Me Marlon, which premiered at the 2015 Sundance Film Festival and is currently playing in theaters through Showtime and Universal.
Callif prefaced our conversation by saying that she believes there is a "fundamental misunderstanding" of what life rights are: "'Life rights' is almost a misnomer, because it's not like acquiring the rights to use a clip from a copyrighted movie; here, we're looking at telling a story based on fact, and if you're planning to tell an accurate story based on a person's life and that information is available publicly, there's no legal reason to get those rights." And in speaking with filmmaker Stevan Riley, he admitted that "anyone can make a film about Marlon [Brando] because there has been so much tabloid, sensationalist kind of stuff surrounding Marlon; it's quite easy to go that route, and that's the route a lot of people have taken."
If that's the case, then why acquire life rights as a filmmaker? For one thing: access. Riley had a very specific vision for his film: "I felt that I had to put some of the more difficult stuff in the proposal—and when I say difficult stuff, I mean the aspects of Marlon's life which were potentially negative: his troubled upbringing, his addictions, the death in the household. I made sure that was all in the proposal, but it was wrapped around the fact that it would be dealt with sensitively and that there would be a meticulous effort to understand Marlon and really get his perspective on things." That perspective is provided by private tapes that Brando recorded for years—recordings that Riley was not going to get access to without permission from the estate. While a potentially risky decision, the choice to utilize these recordings may have endeared the project to Brando's family: "I think they were encouraged by the fact that it would be in Marlon's voice," Riley says. "I felt that that made them relax a lot and they just handed everything over. I was surprised, in fact, at the level of trust."
Life rights agreements can offer additional benefits; according to Callif, "In a standard life rights agreement, you would have a waiver of claim—'I agree not to sue you even if I don't like the way you depict me.'" Such an agreement also carries some assurance of exclusivity. "Someone can still make a movie without that person, but at least you know you're the only person with the access to that information and with that person's blessing," says Callif.
At the same time, there are cases where even attempting to negotiate for life rights and being ultimately unable to come to an agreement can be harmful to the future of your film. "Life rights can be very difficult to obtain," Callif asserts. "If the person's living or if they have an estate, they often want approval rights, which can make it very difficult for the filmmaker to make the movie that they want to make. When you start negotiating life rights, it's difficult because they're personal. I rarely, if ever, come across a case where someone just grants over the life rights without wanting some type of approval—and it can stop a project; if you go to negotiate for those rights and you don't get them, it could be very difficult to get Errors and Omissions insurance. The risk increases for the E & O carrier; even though legally, you still have that right, an E & O carrier will look at that risk and say, 'That's too high of a risk for us. You can't negotiate, or they've said no, and now you're going try and make this movie? We don't want to insure it.'"
While Riley stated that the Brando estate placed no limitations on what materials he had access to or could use, he admitted that the personal nature of the materials, combined with "a lot of lonely nights and weekends just with him," inspired a sense of obligation to Brando himself. "I know this might sound ridiculous, but I knew he was very private, so it felt very intrusive," Riley admits. "When I first heard that self-hypnosis tape, I thought, 'My God, this is actually really too private.' I can't imagine anything worse than somebody rifling through my stuff. But I just thought that if the piece could actually represent him in a truer light, and I could really pursue the things that he was interested in, and try to find the things which defined him, which was an exploration that he was doing himself—he was very self-analytical—I felt that, done properly, it could justify doing it at all. But, there was always that nagging responsibility to him."
Because of this, Riley's advice for filmmakers is to be as honest as possible, and to put in the work from the get-go. "I do a lot of pre-production," he explains. "I do very lengthy proposals and shoot scripts, and then that all will flesh out the approach, so there are no surprises." This type of preparation not only helps build trust, but makes it much easier to secure E & O insurance before you ever approach your subject. If you choose to consult an attorney, Callif explains that her office regularly reviews scripts "to make sure that there are no copyright violations, potential copyright violations or personal rights violations." And before life rights agreements are even discussed, "We would issue an opinion letter saying, 'There's no life rights agreement in place here, but the risk is low because legally this script is on solid ground.'"
In the end, the decision to pursue a life rights agreement is a personal one for each filmmaker that can come down to a few simple questions: Do you need or want access to the individual? Or can you make the film you want to make based on information that's in the public? While Callif cautions that "it very often is a smoother route to do it without the individual because you don't have to deal with that preliminary negotiation," there may be times that access is necessary to the film you want to make. In these instances, Riley's advice rings true: "Supplemented by honest dialogue, really just communicate as much as possible the awareness and the sensitivity of the piece, and the value of the legacy, and the fact that you're dealing with someone's family member, and you're not just going to take it and do a hit and run job on it. You're going to really put the work in."
Katie Bieze earned her bachelor's degree in Literature, Documentary Studies and Film/Video/Digital from Duke University and her master's degree in Film and Video from American University. She currently resides in Los Angeles, where she works for the School of the Arts and Architecture at UCLA.