Non-fiction works based on real people or events continue to grow in popularity. Biographies and memoirs frequently top bestseller lists, documentary films have increased theatrical success, and there are now more reality television shows than ever. Works that merge fact and fiction, such as docudramas and life story films, continue to be favored by the public. Fact-based works can be lightening rods for litigation and producing or publishing these types of works requires a special expertise. Legal review by an attorney experienced in this area is typically required before one can secure E&O Insurance for a project of this type. Gerdes Law possesses that unique experience in clearing or vetting non-fiction projects.
Ted Gerdes assists a range of parties involved in creating fact-based works by clearing every aspect of their projects and obtaining the necessary rights, including releases, life story rights, and location rights. Ted's clients have included publishers, filmmakers, television producers, journalists, authors, and Internet industry companies and their employees.
Legal issues requiring special scrutiny arising out of particular works include:
Documentaries. While these films are based upon fact, it is still necessary for the documentary producer to secure releases where appropriate, understand where releases aren't required, properly license any third party copyright (film clips, photographs, book excerpts, etc) and have the content reviewed for personal rights issues such as invasion of privacy and defamation. Another important issue for documentary producers is to understand when fair use applies and when it doesn't.
Memoirs & Biographies. The legal requirements for these published works are similar to a documentary with a particular emphasis on personal rights issues of defamation and privacy and when written releases may be needed. As memoirs are usually very personal in content, they often raise very interesting and sometimes complex privacy concerns.
Docudramas & Life Stories. A picture being worth a thousand words is especially true with these types of hybrid works, which are a combination of fact and fiction. Describing an act in a book is often seen as less innocuous than seeing it on a large theater screen. The inherent structure of film requires visual shorthand versions of facts and enhanced drama. It is the translation of fact to film that requires a special degree of legal scrutiny of the personal rights relating to these works. Careful review by an attorney with unique expertise is needed and is required to obtain E&O Insurance for this type of work.
Article Alert: The topic of legal issues that face docudramas is explored in " The Special Problems of Docudramas: No Shortcuts in the Clearance Process."
Internet Sites. What type and detail of scrutiny required for an Internet site depends upon its content. The issues to be addressed include: basic clearance of third party copyright, including fair use and parody, evaluating the need to obtain releases for personal rights, review for defamation and privacy, proper use of trademarks, as well as more technical web issues relating to use of domain names, linking, and metatags.
Blogs. Individuals blog for many reasons and the subject matter is endless. One may blog about business, politics, entertainment, science, romance, astrology, etc. They may be for business purposes or strictly personal. While written by individuals, blogs can be posted on business and other institutional web sites. It is these types of blogs that require scrutiny for issues relating to copyright, personal rights, trademark and other concerns. The blog by the lone individual, no matter how defamatory, may not draw a lawsuit, not because hasn't violated the law, but because there are no "deep pockets" from which to extract a settlement or legal judgment. Corporate and institutional sites are not as likely to be passed over by a potential claimant. In fact, the worth, or perceived worth, of the owner increases the likelihood of a claim regardless of its merits.
Thorough Research is Key
The best way to prevent lawsuits over a non-fiction work is to maintain comprehensive records of research that can corroborate the statements you make. Ted Gerdes can assist you with this by advising you on the best sources for information and showing you ways to obtain documentation and proof. Non-fiction works are very different from works of pure fiction, and if you are creating a fact-based property, it is important to consult with an attorney who has particular experience handling the legal issues posed by these works.
Ted Gerdes has nearly 30 years of legal experience and has successfully obtained protection for a range of non-fiction works. To find out how he can assist you, contact Gerdes Law today.