Last month Hulu released its final episode of the television series Pam & Tommy. The biographical miniseries follows the lives of newlyweds Pamela Anderson and Tommy Lee during the time that their sex tape was stolen and made available over the internet. The series is based on a 2014 Rolling Stone article that tells the story of the man who stole and distributed the tape. [1] However, just like the sex tape, the show was released without the consent of the titled stars.
Pamela Anderson has reportedly said that she will "never ever" watch the television show and has since teased an upcoming Netflix documentary in which she will tell the truth about her story. So if Pamela and Tommy are so against the Pam & Tommy docudrama, how was it released in the first place? This show raises important questions about when you may portray someone's life story and when you should obtain life story rights. In short, while life story rights are not technically necessary, producing a work without life story rights exposes the producers to risk.
What are life story rights?
Life story rights ("LSR") typically refer to the right to portray parts of someone's life in some form of media. The law in Canada (and the United States) does not officially recognize LSR, as individuals do not have a legally protected interest in the facts of their life.
That being said, an individual who is portrayed without their consent may have a claim for misappropriation of personality, invasion of privacy and defamation. As a result, when you acquire LSR you are buying assurance that the individual will not sue you for any potential cause of action that could arise or, if they do, that their claim will likely not succeed. The strength of the claim in the absence of acquiring LSR will vary on a case-by-case basis, and will likely inform whether the benefits of acquiring LSR outweigh the costs.
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Misappropriation of personality
That there is potential value in a celebrity's image is accepted given that companies often pay celebrities significant amounts of money to endorse the company's brand or product. Personality rights describe an individual's exclusive right to exploit their image or personality. These rights are protected through the tort of misappropriation of personality and relevant provincial privacy legislation that closely mirror the common law tort.
The tort of misappropriation of personality is a provincial civil cause of action. There are two required elements:
i. The subject must be clearly identifiable; and
ii. The exploitation of the subject's personality must be for a commercial purpose.
Because of the second required element, a biopic would not typically give rise to a successful claim of misappropriation of personality. The law draws a distinction between the use of the personality for the purpose of 'sales' as opposed to as the 'subject.' Where the celebrity's image is being used to help promote or endorse a product or service, personality rights may be engaged. Otherwise, if the subject is being displayed for biographical reasons, the exploitation will not be seen as a commercial purpose.
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Breach of privacy
Invasion of privacy claims are less predicable as Canadian courts (especially in Ontario) have recognized several new common law privacy torts such as "intrusion upon seclusion" and "public disclosure of private facts."
The tort of intrusion upon seclusion holds someone liable who intentionally intrudes upon the private affairs of another person, so long as the invasion would be considered highly offensive to the reasonable person. On the other hand, the tort of public disclosure of private facts provides recourse against defendants who have publicized highly offensive private facts about the plaintiff against their will or consent. The information must not be of a legitimate concern to the public.
In either case, these torts will be harder to establish if the production is about a famous person or well-known historical event given that celebrities will have a lowered expectation of privacy and the public would likely have a legitimate interest in the story. However, if the content could be considered "highly offensive," risk levels will increase. Care should be taken to ensure the accuracy of the content.
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Defamation
This tort involves the publication of false information which is injurious to the reputation of another or which tends to bring them into disrepute. A claim for defamation can be defended if the portrayal was based on the truth or if the portrayal was a responsible comment on matters of public importance. Thus, as with above, care should be taken to ensure that the content is accurate, especially where the subject matter is considered offensive or controversial.
No chance of a successful claim? You may still want to obtain LSR
Even if there is a very low chance that a claim against you could succeed, in most cases it is still wise to obtain LSR. Acquiring LSR will minimize the chance of future litigation, which can be costly, burdensome and generate negative publicity, regardless of whether the claim actually succeeds. Further, consent from the subject can help to legitimize the production and avoid any negative press. As was the case with Pam & Tommy, the public can be quite critical of a production made without the consent or consultation of the subjects. Finally, the cooperation of the subjects could enhance the production by way of consultation with them and relevant materials which may not be otherwise accessible.
Despite the benefits of LSR, sometimes it is simply not the practical choice. For example:
- The individual is an ancillary character. In some cases, obtaining LSR will be necessary in order to obtain errors and omissions insurance; however, this is typically limited to lead characters.
- The individual is no longer alive. In addition to above, obtaining LSR is more important for errors and omissions insurance if the individual is living.
- The production has a tight budget. Sometimes it is just not feasible to pay for LSR.
- The facts and story is already in the public domain. This will limit liability against defamation and privacy claims.
Should you have any specific questions about this article or would like to discuss it further, you can contact the authors or any member of our Entertainment & Sports Law Group.