Note: With the tough publishing market, many mystery novelists are turning their talents to film and video. Here are some of the common questions I receive:
Q: I have a great idea for a screenplay about Elvis pretending to be dead so he can fulfill his ambition of being a secret agent. Since he really is dead, my project would obviously be a work of fiction and the product of my own imagination. Do I have to get permission from anyone to do this?
A: Generally, no. There is an area of law called “right of publicity” that protects living celebrities, and in some states, recently dead celebrities like Elvis, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray Elvis without defaming him or his family ¾ and it is absolutely clear your work is fiction ¾ you need not seek the Elvis estate’s permission. You would, however, need permission to exploit purely commercial “spin-offs” of the movie, such as t-shirts or posters. Particularly in the case of Elvis, you should consult a lawyer because of the numerous trademark, privacy, and copyright laws also may be involved.
Q: An important scene in my film involves the characters watching “The African Queen” on their television set. Since it’s such an old movie, can I go ahead and use it?
A: It’s not that old (1951), and thus still under copyright. Copyright law protects the reproduction and depiction of the film. You certainly can keep it in your screenplay, but if the film was made the producer would have to get permission from the copyright holder. However, your characters can TALK about the movie ¾ that comes under first amendment protection .
Q: The first part of my video takes place in aHollywoodrestaurant. The main character is a waiter who is serving several well known celebrities their lunch. Since we don’t have the budget to hire actual stars, could we just use celebrity lookalikes and not have to worry about getting sued by the real McCoys?
A: Again, the right of publicity applies. In general, the prohibition against commercial exploitation of a celebrity applies to look-alikes and impersonators as well as the Real McCoy ¾ but so does the first amendment exception for fictional work noted above.
Q: Since most films have a disclaimer at the end of their credits that says any resemblance to real people is coincidental, why do I have to get special permission from anyone at all?
A: That disclaimer is aimed at inadvertent depiction of ordinary people whose right of privacy is usually broader than that of celebrities. If you clearly are depicting a celebrity and the use is not protected by the first amendment exception, this disclaimer will not help you.
Daniel Steven is Chairman of the MWA Contracts and Grievances Committee and a publishing and media attorney (www.publishlawyer.com). This column provides general legal information; consult an attorney for application of the law to your specific circumstances.
© 2008 Daniel Steven