I've written a biopic screenplay about a deceased film star. I have contacted the estate and have been granted permission to shop it for a licensing fee. However, I have been told this person might be in the public domain now. How may I find this out?
Also, I have based this script on the multitudes of unauthorized biographies of this person. While all of them basically state the same set of facts, one in particular uses details that the others don't, which I have used in my story. Should I contact the author to review my work prior to shopping this out?
2 Answers from Attorneys
I think you are misunderstanding some fundamental aspects. People themselves are not IP and do not fall into the public domain. You are referring to privacy and publicity rights and yes some states such as CA extend them to deceased persons from 10-100 years after they pass.
Let me be clear, you are able to write about anyone you want and are not required to get any permission to do so from anyone. As you note, there are countless unauthorized biographies in print and film. If, however, you do not negotiate life rights from the key subject a) you expose yourself to claims for defamation and b) you greatly mitigate the distribution options on the work because studios, publishers, etc. want legitimacy and unless you were part of the facts and circumstances (like the Yankees batboy telling about his encounters with the Babe) you are unlikely to illicit a positive response, but this is not necessarily so - it all depends.
I would consult with counsel and just make sure you completely understand the legal concerns.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
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As Mr. Natoli has noted, California has Right of Publicity laws that may protect dead celebrities. However, Mr. Natoli is not licensed to practice law in California and cannot legally advise you on California law. You should consult with a competent entertainment attorney in your local area.
Generally, in order for a deceased celebrity's estate to control the celebrity's Right of Publicity (the right to make money off the name and likeness), the celebrity must have registered with the state of California. If not, then anyone can use the celebrity's name and likeness. Another twist to all of this, however, is that each state's laws are different and you need to determine which state's laws apply (which may not be as simple and straightforward as you imagine). It depends upon where the celebrity was DOMICILED at the time of death, not necessarily where they lived or where they died. A famous example is Marilyn Monroe, who died in California but was legally domiciled in New York at the time of her death--New York had no protection for dead celebrities at the time so her estate cannot prevent others from using her name or likeness.
Copyright protects the expression of ideas and facts, not the ideas or facts themselves. That means that the way a writer phrases things is protected, and any invented dialog and incidents belong to the writer. You should absolutely obtain rights to any book you wish to incorporate into your screenplay or you could find yourself the object of a lawsuit down the road, which could possibly cost you more than you ever make on the screenplay. Statutory damages for copyright infringement are very expensive.