Q. I'm thinking about writing a script about a dead person. They are famous, and as far as I know, no one has ever produced something about them. Do I need to get the rights from his family members? What rights do I need to get?
I don't believe so. As I understand it, dead people have no rights of privacy, nor can you legally libel them.
However, any living people in your story still have their rights. Thus you could do a biopic of Martin Luther King, Jr. (and someone ought to, for Heaven's sake!), but if you want to put Jesse Jackson on that balcony, you'll have to get the Reverend's permission.
IANAL, but I think there's a bit more leeway than you suggest when it comes to public figures and historical events. I.e., you could show Jesse Jackson on that balcony without obtaining his permission (bad example, of course, given that he endlessly touts this fact himself), because this was a well-documented historical event involving a public figure. You *might* get in trouble if you invented unflattering dialogue for Jackson to speak, but not necessarily; Jackson is himself a public figure and there have been "unauthorized" (and unflattering) biographies and biopics about a number of still-living people.
As another example, I find it impossible to believe that all of the Nixon courtesans (Hunt, Erlichman, Dean, Colson, Kissinger, et al) depicted in Oliver Stone's Nixon gave their permission.
That said, there are definitely lines that shouldn't be crossed, "innocent bystanders" who shouldn't be included, and so on.
I think if you're trying to break into the business with a spec biopic, the rights issues might be a considerable obstacle, and you might ask yourself if you really need an additional obstacle to overcome (maybe you do, maybe you're the kind of person who loves challenges, and I suppose you'd damn well better be that kind of person if you're planning to make a career out of screenwriting).
You're mixing up the right of privacy with the right of defamation, both of which expire at death. However, there is also the right to publicity.
The right to publicity descends to the estate as a property right. That means that the estate of the deceased has the right to control every aspect of the exploitation of the dead person's image. As such, you absolutely must obtain their consent.
The prescedent here was a lawsuit filed by the family of the late Fred Astaire. His image had been used in a commercial without permission. His family won, and won quite a tidy settlement.
Yes, but can't I have someone PLAY Fred, so long as I don't digitally morph them into his image?
Yes, you can have someone play Fred Astaire without asking permission from anyone. Image rights only pertain to actual images of a person, not to making a movie about them.
Actually, as far as I know, you could have someone play Fred even if he was still alive (cf Elizabeth Taylor suing, unsuccessfully, to try to stop some network, I believe ABC, from airing a very unflattering biopic about her).
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