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

Photo of Tambay A. Obenson By Tambay A. Obenson | Shadow and Act November 15, 2012 at 7:15PM

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.
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Nina Simone

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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