For a long time the Polish as well as global film industry has been captured by the trend to present productions based on the history of public persons on the background of interesting historical events. When planning an undertaking of this type and thinking about the script concept it is worth considering how far we can go without the consent of the characters presented in the film or their heirs.
It is impossible to make a detailed legal assessment of the issues which may face a film producer without reading the actual script. If we were to point to a general rule which is worth observing when making a film, it would be to act in agreement with the hero and his or her family as there is no doubt that this is the best way to avoid a great deal of stress and legal risk associated with the production. However, the absence of consent of the party concerned does not rule out the ability to produce an audio-visual work. Below we present a list of general, universal guidelines concerning feature and documentary productions having a famous person as the main character.
Can one produce a documentary film using archival press and film or TV materials where the hero, a public person, appears, without his or her consent?
If the documentary only uses materials which were previously published for a wide audience and the hero is presented in his or her public or social capacity for which they are known to the public, their consent for using their image is not required. Things are different if the document depicts the hero’s private life, previously not revealed to the public; in this case the provisions of Art. 81 of the Act on copyright and related rights with regard to protection of the image against unlawful distribution without the consent of the party concerned and the provisions of Art. 23 and 24 of the Civil Code on privacy would apply. In case of a commercial film the issue is not so simple, the doctrine maintains that the exception allowing use of the image of a public person without his or her consent ought to be limited to the informative function. It may be argued that production of a film goes beyond that function. In these circumstances it will always be necessary to determine how far creative freedom is allowed to interfere with the personal rights of the hero or heroine.
It is obviously to be remembered that regardless of the hero’s rights use of archival materials will usually require the consent of the persons holding the rights to such archives (leaving aside the issue of limits of quotation rights, which merits a separate analysis).
Is it possible to produce a feature film about the life and public activity of a famous person without his or her consent?
Feature films usually combine themes from the life of a hero associated with his or her public activity (for which that person is primarily remembered) with the background of their public life and the impact of public activity on the sphere of private life. Presentation of details from private life in a film requires the consent of the persons whose privacy may limited as a result, including the hero him or herself, even if they are a very prominent public figure. This usually involves members of the household and other persons having an emotional relationship with the main hero, who have been included in the script. Importantly, themes in the script which have been previously revealed to the public in the same way by the hero him or herself or their relatives will not usually require the consent of the parties concerned. It is difficult to invoke privacy if a public person voluntarily disclosed certain facts. As regards image protection frequently, though not always, the image may be considered to consist of a set of specific features of the external appearance of the person, eg. a characteristic posture, walk, hat; feature films do not usually depict an image which would require the consent of the rights holder.
If so, who should grant the appropriate authorization to produce a feature or documentary if the person about whom the film will be is no longer alive?
In this case several aspects must be taken into account. As regards image rights we must first of all answer the question whether more than 20 years have passed from the hero’s death. Image rights are legally protected only for 20 years after death. During this time, if the image was not recorded during the period or in connection with performance of the public or social function by the hero for which he or she is famous, use of their image will require the consent of their heirs. The issue of other personal rights, such as privacy, dignity or reputation, is quite different since these rights expire upon death. However, it does not mean that the relatives of such a person will not be entitled to pursue personal claims against a script on other grounds; the issue which arises involves personal rights in the form of cult and memory of the deceased person (as discussed below).
If we wish to use themes from the private life of a hero in a script and present persons closely related to them in a feature film, what type of consent should we obtain and from whom?
First of all, it will be necessary to conclude an agreement with the hero with whose personal rights the script will directly interfere. Secondly, the personal rights of his or her relatives and other persons whose relationship with the hero the film director wishes to depict are protected in the same way. At this point it must be noted that in case of a film production about a deceased person, although their rights to privacy have expired, their relatives still hold their own autonomous rights to memory and cult of the deceased person. Protection of such personal rights may consist in objecting to a film production which may have any negative effect on the honour of the deceased and whether he or she is publicly remembered as a good and dignified person.
It is also worth noting that the risk of claims on account of breach of personal rights of a person shown in a film will increase if the script diverges from showing actual events and real circumstances, which can be documented as having occurred.
How can we protect ourselves against the claims of a public person or his or her heirs if we wish to present them in an unfavourable light in a feature film, or show controversial details from their life?
We assume of course that neither our hero not his or her heirs have given their consent to such a critical presentation. In this case, first of all the script should not present scenes from the life of the public person which did not actually take place. If the film wishes to show the person to the public opinion in a new light, especially if it will not be the most favourable light, the safest solution will be to collect evidence on the basis of which we will be in a position to demonstrate, in case of a potential dispute, that the facts presented in the film are true; in this case the scriptwriter and film producer must take on the role of investigative reporters. In these circumstances we always risk facing the allegation of infringing the reputation and dignity of the public person. Nonetheless it is not an imperative rule, which was discovered by Manuel Noriega, the former dictator of Panama, who lost his battle before an American court with the producer of the computer game „Call of Duty: Black Ops II”, the company Activision Blizzard. The main point of the judgment in favour of the authors of Call of Duty was the determination that freedom of speech is more important than the rights of the dictator whose reputation was questionable in any way due to his previous activity, and, as the judge pointed, it would be difficult to breach it any further. A similar determination may have been issued on the grounds of Polish law. It is to be remembered however, that even very negative characters have their right to dignity and good name, although the right to criticise them is much further reaching.
Is it possible to use themes revealed in a hero’s biography in a script without the consent of the author of the biography?
The creative industry does not need to be persuaded about how important it is to respect the work of others. It seems obvious therefore that if we wish to produce a film based on a biography the consent of the author will be a necessity, especially if certain scenes from the hero’s life have been described by the author of the biography in an ingenious, original way, and the film director wishes to show them in exactly the same perspective. However, no one holds a monopoly for showing facts from the life of a public person. For this reason correlation of facts, descriptions of social phenomena or historical events between our script and a biography, journalistic report or historical book does not mean that we need to obtain the author’s consent for using the information in a film.
What about non-public persons appearing in the story who may be interesting for film makers due to the specific circumstances of their life?
Contrary to appearances this catalogue can be quite considerable, ranging from accidental heroes, through criminals, all the way to persons having unique handicaps or exceptional experiences. The rule is quite simple. A film about such a person requires the consent of the person concerned or their relatives (as it will always encroach on the privacy, dignity, reputation or cult and memory of a deceased person). It is worth remembering however, that making a film about a specific person and merely being inspired by a particular event and using it in a film script are two different matters. A film does not have to be about a specific person; his or her behaviour, events or unique features may provide inspiration for a completely different story.