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Dealing with a dead celebrity...I may already know the answer, but...

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Al Bergstein
Dealing with a dead celebrity...I may already know the answer, but...
on Jan 20, 2012 at 10:04:12 pm

A friend and I have been writing a script about a minor personality who was close friends with a major personality. Both are now dead. The major personality, we will call Mr. X, has an estate that controls his image moving forward. Our story is about his buddy, Mr. Y. (it would be analogous to doing a story about an unknown but real friend of Marilyn Monroe for example, or perhaps Woody Allen's use of Ernest Hemingway in 'Midnight in Paris'). I think about the same issue with politicians, and other celebs. Once in the public eye, can they really stop anything from being done about the celeb, no matter how far afield? For example, in the Gershwin movie a few years back, passing references to minor celebs in Paris and NYC were made. Would every single reference need to be licensed?
Or is this what insurance is for?

Our question is whether or not we need to license the use of Mr. X's name for a story about Mr. Y, if we are telling the story of the two of their relationship, told about Mr. Y. I would rather use their real names, as it gives the story more interest.

Has anyone run into this? Is this asking to be sued if we don't actually license the use of Mr. X's name? I would assume so, but am I being overly cautious? What is the usual and customary way of approaching this issue, especially for an indie film? Or does that even matter? I'm sure I can get a lawyer to tell me to do nothing without a contract, but thought I would ask the film community first, to get an idea of the general lay of the land.

Al


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Mark Suszko
Re: Dealing with a dead celebrity...I may already know the answer, but...
on Jan 20, 2012 at 10:17:57 pm

By coincidence, just this week, for the first time ever, "Citizen Kane" will be projected for the public, in the Hearst Castle at San Simeon.

You will recall that nowhere in the blatantly fictional film, itself based on the fictional story: "The American", was Hearst ever referred to by name. Indeed, the entire Kane story could best be described as "inspired by true life characters".

Did you ever notice in Indiana Jones and The Last Crusade, ...the movie, in which Doctor Jones meets Hitler, who autographs the secret notebook, that movie has an indemnification disclaimer in the credits about not being about specific persons living or dead.... I mean, they are protecting themselves, amongst other things, against charges by someone that their movie slandered ADOLF HITLER.


Look, anybody can sue you for anything. Once a judge says "hey, you used this guy's identity in your movie", is where you bring up your defense that you have a fair use situation because it's a public figure, it's satire or commentary or whatever. The whole time you've spent months and years on this case with a taxi meter running on your lawyers' desk. You would probably win. But can you afford to find out, is the usual question.


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walter biscardi
Re: Dealing with a dead celebrity...I may already know the answer, but...
on Jan 20, 2012 at 10:38:16 pm

We actually had a movie proposal discussion a few weeks ago involving a celebrity as we're now working with a former hollywood executive to help us develop shows and original films.

Bottom line is this. The most difficult part of any film dealing with a celebrity, dead or alive, is getting the insurance to make the film. With celebrities, it's not "will I get sued," it's "how many lawsuits will we have to fight?" You ARE going to be sued, just the question is how much will each of them cost you.

In our case, the decision was that we would get sued to the point that no insurance company would be willing to cover the production because it's the insurance company that pays out the legal fees when you lose. Even if we created an entirely fictional story based on the true story. We just don't have the funds here to fight the legal battles like the big studios do.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

"This American Land" - our new PBS Series.

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Al Bergstein
Re: Dealing with a dead celebrity...I may already know the answer, but...
on Jan 21, 2012 at 5:39:30 am

Those are both great pieces of feedback. It supports my notion that I told the co-writer this AM that we should go to the estate and try and negotiate with them in advance, since we are doing something that is complimentary and not something that would be viewed as negative. The story is about the friend, and they had a good relationship in life. The only down side is, of course, that the estate will likely want money for any approval. That would be something to deal with in getting the funding for the production, I would assume.

But it would be better than going way further down the road before finding out that our insurance won't allow us to do the film then.

Am I correct in assuming that?

Al


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jamie thorne
Re: Dealing with a dead celebrity...I may already know the answer, but...
on Jan 21, 2012 at 7:46:21 am

You may find some useful information here:

http://nysbar.com/blogs/EASL/2010/05/california_to_extend_postmorte.html


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walter biscardi
Re: Dealing with a dead celebrity...I may already know the answer, but...
on Jan 21, 2012 at 3:49:52 pm

[Al Bergstein] "The story is about the friend, and they had a good relationship in life. The only down side is, of course, that the estate will likely want money for any approval. That would be something to deal with in getting the funding for the production, I would assume.
"


How many other people are going to be included in this film besides the celebrity and the friend? See that's what we ran into with our proposal. Each and ever person depicted in the film can file a lawsuit for whatever reason. A minor character in the film wants money so he sues. You don't really hear much about this because the larger movie studios generally just settle each case quietly or they take care of payments for everyone before production starts.

Of course, this is a very "broad stroke" discussion here and each and every project is unique. Prior relationships with the parties involved will certainly help things and the Producer / Director of the Project can help and even the Studio relationships with the people involved. So don't take what I say as "the law," it's just what we experienced.

It doesn't cost you a thing to approach the estate and simply discuss your idea. If you have interest from them in participation (yes it will cost you money) then seek out at least a one hour meeting with a good entertainment attorney to discuss how feasible your idea would be.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

"This American Land" - our new PBS Series.

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Al Bergstein
Re: Dealing with a dead celebrity...I may already know the answer, but...
on Feb 7, 2012 at 5:45:41 am

Thanks to all of you. We approached the estate/family, of the main character, and the answer was, uncharacteristically in this case, "we aren't interested in anything to do with him". They basically said that they did not want to participate and did not want anything done on him. A rather resounding, "kill this now' kind of feedback. This is in contrast to previous conversations a year and half back.

So we didn't even get to the 'celeb' that was a secondary character. Oh well. It was an interesting learning experience and I know more about how to approach this kind of project in the future.

At least it didn't cost me anything to get to this point but time!

Al


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