The fall movie season often means a lot of movies “Based on a True Story,” that opening moniker that gives certain stories added weight. Sometimes the subjects are famous (or infamous), but in the case of the real-life strippers-turned-robbers in “Hustlers,” some unknown figures found their lives thrust into the public consciousness in the form of a box-office hit.
Samantha Barbash — whose character inspired Jennifer Lopez’s performance in the film — has threatened to sue distributor STX, claiming the film is a violation of her rights. She has also stated that she originally rejected the producers’ offer to buy the rights to her story because the dollar amount offered was too low (less than the cost of Hermes bag, according to Barbash).
The main issue here is the concept of “life rights,” which Hollywood studios commonly acquire prior to making any form of biopic. The “Hustlers” case poses a big question for anyone looking to adapt true stories: When does Hollywood need a subject’s life rights to make a scripted narrative film? The simple, strictly legal answer: Almost never.
“The general rule, nationwide, is that the first amendment is going to control for narrative fiction,” said attorney John L. Geiger, who has written countless life Rrghts agreements for his film and TV clients. “The concept of life rights is really something of a misnomer, because no one owns the facts that make up the narrative of their life.”
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A writer is free to use any publicly known facts about an event or person. The bar is even higher when dealing with a public figure, where a plaintiff would have to prove defamation to win in court. “Unless the filmmaker is deliberately falsifying, with the intent to cause harm,” said Geiger, “it’s pretty difficult to find liability.”
In the case of the real-life women featured in “Hustlers,” their arrest was a newsworthy event, while Barbash and others participated in writer Jessica Pressler’s popular 2015 New Yorker article, which was optioned by STX as the basis of the screenplay. But in the competitive business and artistic marketplace that is Hollywood, things are never quite as black-and-white as a law-school seminar, and the importance of life rights eliminates many gray areas.
“The artistic advantage of having a life-rights agreement is I now have a backstage pass to start talking to these folks,” said Geiger. “They’ve agreed to be my partners, if you will, and bring the narrative to a broader audience. So I may be getting material that is otherwise private, still factual, but I wouldn’t have the access of them cooperating with me.”
For a writer, life rights are a major competitive advantage when trying to attach a star or sell a script. When a larger production company, studio, or distributor become involved, the business side will often demand the acquisition of life rights. Not only does the company want a competitive advantage, in case someone wants to make a film about the same thing, it also offers a measure of legal protection.
“It’s cheaper for you in terms of business just to head off any potential lawsuit, rather than go through the legal representation for the onus of the material,” said UCLA Film & TV Professor Howard Suber, who has been an expert witness in many copyright cases and co-wrote the new book “Creativity and Copyright: Legal Essentials for Screenwriters and Creative Artists” with Geiger. “The industry as a whole is constantly thinking in terms of lawsuits. In fact, I think the following statement is true: Any film that makes significant amounts of money is going to be sued by somebody for something.”
Life-rights agreements typically don’t give any creative control to the subject, and use language promising the filmmakers will do their best to stick to facts, but they allow a great deal of wiggle room to account for the demands of Hollywood storytelling.
“The core of a life-rights agreement is the consent and waiver,” said Geiger. “I’ll give you access to material, any access I give you, you’re contractually allowed to use and I won’t turn around and sue you for anything. I won’t sue you for any privacy torts, I won’t sue you for contractual commercial misappropriation, I’m giving you a blank ticket. And that’s the type of clearance requirement that a bond company and distributor is going to demand before they are willing to go forward with the project.”
Geiger and Suber both indicated that it also makes good business sense to option a nonfiction, reported article like Pressler’s definitive piece on the women featured in “Hustlers.” While the facts Pressler put into the public domain with her article are free for artists to use, Hollywood clearance attorneys always worry about the fuzzy line between where those facts end and the author’s analysis (which is not free) begins. However, in regards to life rights, there’s another advantage to optioning a well-researched article.
“One of the benefits you are getting from doing a deal with a journalist is the journalist has already been in the living room and has the relationship with the subjects,” said Geiger. “I can just stand in their shoes and not go out and start from scratch.”
This, of course, is what likely made STX comfortable with “Hustlers,” which features a journalist character, played by Julia Stiles, interviewing the film’s protagonists. Suber also added that there is a danger to approaching subjects after optioning an article: They may want more money than you are willing to spend, or more creative control than you are willing to give.
“By asking, you are acknowledging that you thought you needed their permission,” said Suber. “If they refuse or ask too much, you can then say, when they turn around and sue you, ‘Well, I subsequently discovered it was OK,’ but that’s kind of a lame response.”
The part that becomes trickiest — in ethical, artistic, and legal terms alike — isn’t a debate over the facts surrounding a subject’s life, but getting into their private life and their motivations for actions they take in the story.
“If you are doing a biopic right you’re inevitably going to end up with that, because character is about change and we need to know the inner demons they are changing,” said Geiger. “What is the psychological landscape that has them at the status quo at the beginning of the film and what is the arc of that change, and all of that is internal. It’s not out there in the world that’s free for the taking. That is something we extrapolate, that we interpolate, and whenever you are doing that, that sounds a lot like fictionalization and that potentially opens you up to defamation because you are ascribing intents and mindsets that may or may not be true.”
Geiger said that he’s had clients walk away from projects because they weren’t comfortable with filling in such emotional and psychological blanks. So while the first amendment places a “based on true events” filmmaker and distributor on solid legal ground, it’s always better to get the life rights.
“I really come back to the cleanliness, the clarity of mind and heart on it,” said Geiger. “You’re going to find your way on a project better with the cooperation of the subject. So if it’s a living person and they’re not a totally raging lunatic, you’re probably better off figuring out a way to collaborate with them.”