On Recent Biopics Of Black Public Figures - Their Legal Rights, As Well As Ethical/Moral Obligations?

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by Tambay A. Obenson
November 15, 2012 7:15 PM
17 Comments
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I only realized recently that many of the biopics we've covered here on S&A, especially in the last year or two, have all found themselves in the middle of squabbles over rights issues with, or approval/authorization from the real-life subjects of the biopics (if they're alive), or those who control their estates, or other influential figures close to the subject with the power to create problems for the filmmakers and producers.

There was the Winnie Mandela project, starring Jennifer Hudson (the real Winnie didn't approve; in fact, J-Hud, nor the filmmakers, even met with her), at least 2 Martin Luther King Jr films (Lee Daniels' Selma especially; you'll recall Andrew Young's objections to any depictions of MLK that might hurt his image; and the King estate was said to be unhappy with the scripts); the Marvin Gaye films (Berry Gordy blocking film productions on the life of Marvin Gaye, for fear that he (Gordy) would be depicted negatively; he's said to pretty much own the life rights to Marvin Gaye; and there was also Janis Gaye, the late singer's second and last wife, who was vocal about her concerns of planned depictions of drug use, and other unflattering depictions of Gaye); there was the B.B. King project, which was to star Wendell Pierce, but the real B.B. King didn't approve, and Pierce did say that he wouldn't work on the project without King's approval; the Jimi Hendrix film, starring Andre Benjamin (the Hendrix Estate didn't authorize/approve the project, and didn't allow the use of Hendrix's original music in the film); and of course, most recently, the Nina Simone film starring Zoe Saldana, which also doesn't have the authorization/approval from the Simone Estate.

There are others, but you get the picture.

I did a little research to see if I'd notice any trends with regards to biopics that were produced and released without the approval of the subject of the biopic (if they're still alive, which is rare), or whomever controls the subject's estate.

As you'd imagine, this isn't information that one can easily find. There is no BiopicsThatWereReleasedWithoutApproval.com (or is there, maybe under a different name?). So, with the few projects I researched, I looked for mentions of whether the real-life people whose stories are being told (or the controllers of their estates, if they weren't alive when the films were being made), approved of the projects.

And I can't say I noticed a definite trend.

One thing I can say is that, it's perfectly legal to make a film about a real-life person (dead or alive) without their approval and/or without acquiring their "life story rights."

It's not so simple however; there are complexities to this that I'm not qualified to speak on, but, from the research I did, the short answer is yes, you can do just that, AS LONG AS you’re willing to risk a lawsuit later on, which might get in the way, or slow down the eventual release of your film.

A filmmaker has the right to make a movie about any living person, as long as it doesn’t defame the person, or violate their privacy rights - 2 things that can be hard to avoid doing; after all, you're telling the story of a human being, unless it's a work of hagiography. 

So just understand that while you have the freedom, there are pros and cons to whatever choices you make, as well as potential legal risks that you need to be sure you're willing to accept.

For example, a pro in having full authorization/approval is that it'll help with your marketing; the real-life person (if they're still alive) might get on the road and help you promote it, giving the project their seal of approval. Of course that could actually hurt the film as well, because some might question why anyone would so willingly support a project that told their life story honestly, warts and all as the saying goes; the thinking might be that it's not an honest work.

And it's partly for that reason that filmmakers like Darrell Roodt for example (the director of Winnie) didn't seek the real Winnie Mandela's approval - because he wanted to be free of any influence, and be able to tell the story however he felt it should be told (of course hopefully, relying on researched facts, and not fabrication). 

But I'll defer to my entertainment lawyer friends to expound on all of that (as an aside, we'll soon begin an entertainment law column here on S&A, with professionals sharing their expertise, which I think filmmakers especially will appreciate, but everyone will learn from).

The upcoming Diana biopic which stars Naomi Watts doesn't have the explicit approval of the royals, but word is that the royal family's approval of the production has been implied, since they gave permission to film outside the gates of Kensington Palace and in Kensington Gardens.

Michelle Yeoh said of her role as Aung San Suu Kyi: 

“Yes, we met once while she was under house arrest. I said, ‘We want to help you.’ Her only message was: ‘Use your freedom to promote ours.’ Getting through to her takes two months. The film’s banished in the country. Hopefully, she’ll see it under cover. She knew we’re making it. She’s happy but never read the script nor asked to. To protect her, we made it very clear she didn’t participate.”

Of course that was a very unique situation.

Speaking as filmmaker, I'd love to have the person (or whomever is handling their estate) approve of my project; however, I'd also hope that their approval doesn't come with conditions. That seems to be what's holding up a lot of these projects; although some have clearly moved ahead without having that approval. But I say, if you're giving me your blessing, then allow me to tell your entire story, not just what you want me to show, or the world to see. After all, I'd say that most filmmakers tackling real-life subjects on film, are doing so because they are attracted to that person's life for one reason or another, or they admire them as they are, and the journeys they took to become public figures; and the desire to tell their story is coming from a good place. 

If I don't have the approval I want, I'd probably be ambivalent about moving forward with my plans, if only to avoid any potential lawsuits down the road, as I mentioned above. But also because I think I'd feel a sense of obligation, whether ethical or moral. I don't know if I'd be as bold as some filmmakers have been recently, to proceed with a real-life figure's life-story, without some kind of a nod from them; or at least, I wouldn't want to go into the project with them strongly against it, so much that they're publically vocal about their rejection, which really could have a negative effect on your project.

This reminds me of my post on Stokely Carmichael's (Kwame Ture's) inisistence on depicting virtues versus vices in filmic representations of real-life people (like MLK).

As noted, one of the reasons for the holdup in the production of those 2 rather high-profile MLK film projects - both which would (reportedly) emphasize MLK's vices, and not just revel in hagiography - was Andrew Young's objections - the civil rights activist and good friend of Martin Luther King, Jr., who played a key role in his affairs, was a strategist and negotiator that influenced the passage of the Civil Rights Act and Voting Rights Act. And also, he was with MLK when he was assassinated in 1968.

Young reportedly objected to scripts which included scenes of marital infidelity during MLK's final days, among other "vices."

Kwame Ture suggested that Hollywood peddles vice as entertainment, and he had a problem with that.

Obviously, there are those of us who prefer that films/projects like the above, about these iconic figures of history should essentially canonize them, or at least, as Kwame Ture notes, focus on their virtues and not their vices. And there are those who feel that a warts and all depiction "humanizes" them, making their achievements more accessible to those of us who hold them in such high regard.

What do you guys think about all this? Are you on the side of those who believe that filmmakers should get approval/authorization before attempting a biopic; or on the other side, with those who say they don't think it's necessary, and they'd rather have the freedom to tell the story as they see fit, minus any influence? Or claim artistic license.

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17 Comments

  • Geoffrey L. Garfield | February 3, 2013 2:13 PMReply

    As the Producer of the 2002 Showtime biopic KEEP THE FAITH, BABY (Harry Lennix, Vanessa Williams, Lance Reddick,, Russell Hornsby) on the life of the legendary Harlem Congressman Adam Clayton Powell, Jr., it was vitally important to me for the family, two sides as he had two sons by his second and third wife, to be integrally involved. That is why for marketing purposes I fought to have them designated as Co-Producers so that the audience knew that the "authenticity" of the story would not be questioned and that they were very willing to have us tell it "warts and all", which we did.

  • Riva Collins | December 5, 2012 1:26 PMReply

    I suggest that anyone who really wants to understand the legal ins and out of rights when it comes to doing biopics simply contact FIND, Film Independent West, the WGA, any media law professor, or an entertainment attorney. There was so much about the law that was missing from the article, though well-intentioned. For example, the article didn't even touch upon the concept of "public figures," which ameliorates some of the U.S. copyright laws. And you mentioned several people whose home country was not America without delving into the differences in copyright or ownership of one's image from country to country. The line that starts "A filmmaker has the right to..." is inaccurate. Also when the writer uses dubious and questionable phrases like "word is" or "that seems to be" or "Young reportedly" , it casts doubt on the credibility of the words that follow and, thus, the entire article. The truth about copyright laws and what happened in relation to the films mentioned is so easy to ascertain with a little bit of research or by simply calling the various guilds or film organizations in Hollywood. You didn't even mention Laurence Fishburne in relation to Jimi Hendrix and that's the first topic that will come to mind if you asked anyone walking down any street in Hollywood. I don't mean to criticize, but there are some people who might actually believe everything you wrote was true and then get in trouble later. Yes, that writer-producer should not be so naive, but then again, you, as a journalist, have a responsibility to do more in-depth research on your subject material.

  • Sounds of Cinema | November 20, 2012 10:45 PMReply

    It is hard to believe that official approval from the subject or his/her estate would come without some kind of preconditions. The screenwriters of THE PEOPLE VS. LARRY FLYNT discuss this at length on the commentary track, as they had contact with Flynt but kept enough distance to maintain the integrity of the film. But it seems to me that biopics of famous people are most interesting when they reveal some take on the subject that isn't entirely consistent with conventional wisdom. NIXON is a sympathetic portrait of a man who was generally reviled. DOWNFALL depicted Hitler in human dimensions instead of the caricature of evil in which he is normally portrayed. The problem with hagiographic portrayals isn’t just that they are generally boring; they also amount to little more than free advertising for their subjects and reinforce the popular narratives instead of challenging them.

  • Troy | November 20, 2012 4:38 AMReply

    This reminds me of my post on Stokely Carmichael's (Kwame Ture's) inisistence on depicting virtues versus vices in filmic representations of real-life people (like MLK).

    Fighters know it has to be this way in order to inspire the Plebes. Whom are cool with the struggle but they need to feel like these great feats can be achieved without first bettering themselves. Because that raises too many identity issues. If the Plebes had to fight to feed they would have to be starving but then they would be too weak to win.

    Public Figures are public figures because they dedicated and given themselves to the cause of the public.

  • Malik | November 17, 2012 10:56 AMReply

    Problem is you're never going to make an actual GOOD movie about someone with the estate's approval. I mean it may be a well made fluff piece like Ray or Walk the Line with great acting, sets, etc. but they are never REALLY going to allow people to dive into the heart and soul of a person because that would mean admitting uncomfortable realities about someone who was interesting enough to warrant a biopic.

  • Aaron | November 16, 2012 3:01 PMReply

    We have to start making our own films because Hollyweird will continue to be disrespectful to people of color. The actress Jaqueline Fleming played Hariet Tubman in Lincoln: Vampire Killer. She is light bright biracial and we all know Hariet Tubman was dark chocolate. Hollywood is purposely excluding dark skinned women and only we can stop the madness by creating our own film companies and making our own products. Film and Music are tools and weapons of propaganda and we continue to be victims.

  • Troy | November 20, 2012 4:40 AM

    Real talk, Hiram, Im out here handing out that Slumpergrump to these vampires every night.

  • Hiram Slumpergrump | November 19, 2012 1:00 PM

    Charles,

    I think you're being unfair. We all Abraham Lincoln Vampire Hunter may have taken liberties with Lincoln's life. He actually killed only 500 vampires and not 1,000 as the film depicted. The Civil War was, as all school children know, was fought to prevent the vampire hordes from eating all those black babies! It's crucial to give a license to filmmakers. Think of all the children who would have been denied the truth of the evil vampires and our greatest vampire slayer! I also suggest people look at the contemporary historical telenovel Buffy: The Vampire Slayer.

  • Charles Judson | November 16, 2012 4:43 PM

    1) Are you seriously judging the need for us to make our own films on how a historical character was used in a film that has Abraham Lincoln as a vampire hunter? 2) Does this really have anything to do with biopics? 3) As someone who was a Civil Rights and Abolitionist leader, a Spy, and later helped former slaves live out the last of their days in peace, does it really matter if some Hollywood film got the color of her skin right? Or that they represented her role and her beliefs correctly? I haven't seen the movie or read the book, so I don't know. But, I guess it's not important, just that they got her complexion right.

  • Charles Judson | November 16, 2012 8:52 AMReply

    By the way. If folks aren't up on what goes into E&O insurance. If you don't know what E&O insurance is, I suggest you bone up on it. Beyond just the other issues, learning what goes into just securing it illustrates the hoops productions navigate for biopics. "The information in this section of the application is often most crucial in helping the underwriter separate low risk from moderate or high risk. Is this fiction or non-fiction? Is it a film or television program? Is it original or based upon another work? These answers can also affect the premium charged...The answer is simple, right? Not at all. This is one of the questions that applicants and
    their attorneys agonize over. It’s usually obvious when a work is “Entirely Fictional.”
    This box is meant to be checked when the applicant has an original film that is purely
    fictional. Most problems arise with the next two descriptions. If your project falls into
    one of these classifications (Entirely fictional but inspired by specific events or occurrences or A portrayal of actual facts, which includes significant fictionalization), it is good to include additional information and explanation as to how and why your project falls into one of these two categories:" http://www.gerdeslaw.com/wp-content/themes/gerdes/inc/eoinsurance3.pdf

  • Charles Judson | November 16, 2012 8:37 AMReply

    @BLACKMAN MLK's infidelity was well known within the Atlanta community. An AUC professor I had over 20 years ago said they used to gossip all the time in the hair salon about who was MLK's newest girl. It's nothing new and it's nothing new to include in film. In the last few years we've seen more and more films about FDR include, or reference, his various affairs, including the one with his secretary. The most recent, HYDE PARK ON HUDSON, is about FDR's affair with his fifth cousin Daisy. Including a historical figures vices first and foremost humanizes them. In the case of HYDE, it provides one of the stories for a film, but it also coincides with FDR's carefully orchestrated moves to align the U.S. with the U.K. and position the U.S. for the coming world war. Can films get into the mud just for the sake of getting into the mud? Yes. But, let's not make this sound like some grand conspiracy to tear down Black folks. Films that have pushed us to the side, the lack of companion films to movies like MISSISSIPPI BURNING, the simplifying of roles, like Rosa Parks into little old lady not politically savvy NAACP member, have done far greater damage to the overall narrative of Black folks than admitting that MLK was as fallible as JFK or FDR. @ALM et al Dramatic License is a powerful tool for writers, especially in the case of anyone trying to compact a story down into two hours, and still have any semblance of propulsive momentum, either in plot or character, and to have a unifying theme. The caretaker in the Simone biopic is NOT the caretaker in real life. He's a composite character. 99% of the biopics we watch have composite characters and most of us barely notice. Jonah Hill's character in MONEYBALL is a composite of personalities. In RAGING BULL, the character Pesci plays is a composite of two characters. In APOLLO 13 the character of Ken Mattingly exists to represent the work of an entire team of NASA scientists--this movie in fact has quite a few composite characters. In drama Dyads and Triads are the most powerful relationships in creating conflict. They are powerful in their ability to streamline story. The only way you can do that is by reducing the number of characters so one can create narrative clarity. Try reading a script that tries to include every little detail. They're a slog to get through just by way of density and always by a general lack of dramatic arcs. It becomes tell not show. So yes, sometimes, and most times, you make changes. MAN ON THE MOON takes an event that happened five years before Kaufman's death and moves it to after his cancer diagnosis years later. White Washing is a problem, issue and concern. Some filmmakers just get it flat wrong. Sometimes in the service of their own interests. However, there's nothing inherently salacious about making changes in terms of storytelling. If we want to hold this Simone pic to such a high standard, we might as well cross out every biopic off the list at this point and skip the genre all together.

  • Charles Judson | November 19, 2012 11:31 PM

    @ALM True, MONEYBALL is not full on biopic, it's more of a docudrama, so my bad there for not being more specific. However, biopics are dramas. And docudramas are still dramas. There is no difference. In writing a script, in structuring a film, they all still play by the same basic storytelling rules. No one really knows what happened on United 93, so is Paul Greengrass wrong for even attempting to convey even a portion of the story beyond just what was recorded? What about all the MLK films that don't show him drinking or playing pool, or actually being a regular dude who folks liked hanging out with? Is that omission a rightful one? Is it a lie? A simple benign distortion? Or does back to back films excluding that, render MLK as a near untouchable human? What about his anger? Do we get upset that we rarely see him upset? But, what the few films that don't explain that as brilliant as King could be and was, it was Bayard Rustin and A Phillip Randolph that laid the ground work? Folks would have marched on Washington 20 years before. Again, we can complain about fabrication, but fabrication comes in many flavors. You can just as easily point out that omitting the hypocrisy, contradictions, and slow actions of the American government in just the 30 years before King entered the movement, does as much to quietly absolve the government of backtracking and backpedaling and by extension its guilt, as it does to downplay the wider narrative for a more simplistic, easy to digest MLK good, Segregation bad storyline that skips over the murkiness of race in the 1960s. Just think about how few films link MLK to the larger stories of African independence happening at the same time. Beyond, that there's the irony that many in the Civil Rights Movement were staunchly anti-communist (and even sided with the same government agencies they were fighting on that), even though some of the greatest thinkers and leaders who laid the foundation of the entire movement were either socialists or communists. If we're going to dissect this Simone project, then let's apply this across the board and with true rigor. There are a great many aspects of our story that haven't been explored. As of now, this feels like endless nitpicking over if the stripes in one room of a house should go up and down, or left and right.

  • ALM | November 18, 2012 7:30 PM

    @ Charles Judson: The issue is that you are comparing two different kinds of movies. Nina's film is a biopic, while "Moneyball" is a drama. Nina's film is being marketed as a biopic. I don't know about you, but if I ever achieve enough to have earned a biopic, I don't want the filmmakers to make "composite" characters that are completely opposite of the actual person that they are based on. I understand that elements are added for dramatic effect for the film treatment, but making a man who engaged in same sex relationships straight for the sake of creating a story and selling tickets? That's a flat out fabrication.

  • blackman | November 16, 2012 12:04 AMReply

    MATERALISM is bad for one's soul.

    kick rocks hocking this useless trash.

  • Blackman | November 16, 2012 12:03 AMReply

    If you have been watching film and find VICE a nicety to be attached to blackness then you too are amoral.

    they do NOT portray White Stars negatively. Unless, it is a known fact that they had Vices.

    For any of these industry zealots to create film without Family approval, should not GET Black people approval.

    simple.

    as far as which actors or actress plays what part?

    Let it go already.

    They NEVER EVER dug dark skinned women.

    Maybe now one of them will create a studio and make their own films.

  • ALM | November 15, 2012 10:17 PMReply

    At least Wendell Pierce is respectful of B. B. King......Personally, I believe that filmmakers should strive to get the approval of the subject of the biopic or their estate. If you don't get approval, then don't claim it's a biopic while changing MAJOR things, like the sexuality of a person's caretaker. If you are going to change something that major, you may as well not attach the movie to the public figure. In that scenario, you are making things up and using that public figure's name to sell tickets and drum up interest.

  • Monique A. Williams | November 15, 2012 9:11 PMReply

    What is the biopic supposed to accomplish; do we want to know our heroes intimately which includes the good, the bad, the ugly? Is the biopic supposed to inform the masses of their struggle, their triumphs, something they'd probably never heard of before? Is is designed to take a somewhat familiar figure and give him a more exciting and entertaining story against the backdrop of an interesting time period? If the story is to be authentic, whose version of the truth is it? A child can cooperate with a filmmaker who wants to tell their parent's story, but insists that their were no extramarital affairs so doesnt allow that in the film. A friend may never want to betray secrets that are integral to understanding the impetus behind the subject's actions, leaving holes that the filmmaker has to fill in himself (problematic) or leave a mystery. There can never be a 100% positive portrayal of any figure because no one's life is like that, and who would want to watch that anyway? I say, make the film how you want, and if you want to rewrite history, make a character "similar" to the one you want, change all the names, and call it fiction so you can have the power of their universe. Any resemblance is entirely coincidental.

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