‘Life rights’ a thorny dealmaking point

A small fortune for some, fraught with misconception for others

The famous, the notorious and the merely notable frequently lock in to the Hollywood development process by selling off their “life rights,” a dealmaking phrase that may mean a small fortune for them but is fraught with misconception for others.

For many in the show biz legal community, the phrase may even be a misnomer, as it suggests that anyone has an all-encompassing right to his or her own story, for sale to the highest bidder. That is reflected in the ubiquity of suits filed against producers of movies that depict real life figures or are inspired by them. Many cases don’t make it far; others keep trying, like the former nun who claims that she is the inspiration for Disney’s “Sister Act” franchise. She filed a $1 billion suit last month claiming that the studio had “actualized” her life experiences into their project, a work of fiction.

But the case that has drawn the greater concern in the industry is that of Sgt. Jeffrey Sarver, who claims that the makers of “The Hurt Locker” improperly used his likeness in the film. Although Jeremy Renner played a ficitious character in the movie, it was close enough to Sarver’s persona to give rise to a variety of claims, including defamation and misappropriation. He cites the fact that screenwriter Mark Boal made him the focus of a Playboy article that was the genesis for the film project. Last year, a federal judge dismissed the suit, but Sarver is appealing to the 9th Circuit.

In their appeal brief, the producers of the film argue that Renner’s character just isn’t Sarver. They say that their work is a “transformative” work of artistic expression that is protected by the First Amendment, and that Sarver’s position “has been rejected by the California Supreme Court, which recognizes that the values of free expression and artistic freedom protected by the First Amendment outweigh the state’s interest in protecting the right of publicity when an expressive work contains significant ‘transformative’ elements.”

Yet the MPAA and the Entertainment Merchants Assn. want the appeals court to further weigh in the First Amendment’s favor in the balancing act of the right of publicity and the right of free speech. They are petitioning the court to accept an amicus brief in which they call on the appellate judges to “use this opportunity to ensure that First Amendment rights are safeguarded, by holding that the Constitution does not permit right of publicity claims to arise from expressive works that are inspired by, or based on, real people or events.”

A concern is always that a precedent will be set in which suits can’t be so easily dismissed. In their brief, from Kelli Sager of Davis Wright Tremaine in Los Angeles, they note that studios are often targets of lawsuits by real-life people depicted in films, or those who are inspirations for them. Even though many are found to be “without merit,” the litigation can be long and expensive.

“If this court adopts Appellant Jeffrey Sarver’s restrictive view of the First Amendment, however, the number of lawsuits brought against filmmakers would increase exponentially, since every person who is referenced in a film — or who claims to have been the inspiration for a fictional character in it — could use the threat of expensive litigation to demand payment,” the Sager brief stated.

Sarver’s team argues that producers “do not have the unfettered right to generate millions or dollars in movie revenue through their commercial exploitation of Sarver’s life story without seeking authorization from, or providing compensation, to him.”

Ken Basin of Greenberg Glusker notes that Sarver’s challenge is to make the case that the character is similar enough to himself yet different enough to establish that he was portrayed in a false light. “That is a tightrope I don’t know if anyone has walked successfully,” he said.

So where does this all leave the legal concept of “life rights”? According to Sager’s brief, it only promises two things: Cooperation from a subject, and a waiver from suing for defamation or invasion of privacy. Those deals are made a lot, but in the eyes of the industry, they may give the non-pros a false expectation of a “right” that they don’t really have.