Real life storytelling, biopics, docu-fictions, many cinematographic and televisual films are inspired from real persons and their life stories. But, there are also many lawsuits filed by the interested persons or their heirs notably on the basis of an interference with their privacy, honor or dignity. We are going to make an overview of the questions that a film producer should consider when he considers developing such projects.
The first question that a producer must answer is: is the movie about a living or dead person?
Indeed the risks regarding privacy infringement differ significantly depending on the hypothesis adopted. On this specific point, the French Court of cassation regularly states that the right of action based on respect of privacy extinguishes with the person’s death. This rule implies that the actions brought by the heirs of a deceased person are inadmissible if they are only based on an invasion of privacy of such deceased person. If they want to sue they necessarily have to prove that the litigious work cause them a personal damage. As an example the work can challenge their dignity or reveal an unusual fact of their own privacy.
Regarding the audiovisual works based on the life of people still alive, producers must be careful that the events related in the film have already been made public in one form or another. It is obviously the case if the person subject of the film, has itself revealed such part of his private life through interviews or autobiographical work. (TGI Paris, 15 janvier 2003, Affaire « Laisser Passer »). It is also the case when such facts have been publicly reveal without the persons participation, as long as they chose not to complain about it. (TGI Paris, 8 avril 2010, RG n° 10/53208, Affaire « Carlos »).
To prepare for any troubles, producers would be well advised to gather all elements (press articles, biographies authorized or not, documentary works, reports…) that can prove, including in front of courts if needed, that the information included in the films were facts that have already made public.
The fact remains that if some elements of privacy have been revealed exclusively during a trial, their use as part of an audiovisual work of fiction is potentially dangerous. As an example, regarding the TV movie "Intimate conviction", originally broadcasted on Arte, the judges thus considered that the facts from the private life evoked by a charged person during his trial could not be freely used as part of a audiovisual work of fiction. (TGI Paris, 5 novembre 2014, RG n° 14/03844). Similarly, the gender crossing is also likely to lead to the conviction of the producers. When imaginary elements are aggregated to real facts, judges may fear that audience is no longer able to distinguish what's fact and what's fiction.(Cass. 1re civ., 13 février 1985, n° 84-11.524, Affaire « Mesrine »).
Of course, the risk of damaging confusion exists only if the invented elements are beyond ordinary facts that everyone live in his daily life (going to a store, eating, sleeping ...), and grows as the facts show the characters in a particularly unfavorable light (extramarital affair, violent behavior, etc.).
To limit the risk of an action to prohibit the broadcasting of the film due to an aggregation of indistinguishable real and imaginary facts, it may be useful to include a written warning, in the opening credit of the to film, to inform the audience of what are the main imaginary elements added to the real facts.
However, a general statement as “ The characters and situation of the film are purely fictional and any similarity to actual individuals or event is coincidental » is not recommended because it has no legal value in the eyes of the judges.
Finally, if a scenario based on public events (not only disclosed at trial) provides a priori some security for producers, they must however also think to avoid any risk of infringement of copyright. This risk exists as long as the borrowing from documentary resources exceeds the resumption of real historical events and trivial facts (TGI Paris, 26 novembre 2010, RG n° 09/14070, Affaire « Séraphine »).
This is why producers had better to provide in their writers agreements a clause that guarantee them against unauthorized use of elements copyright protected. It is to be noted that the mention of the legal provision “author guarantees to the producer the peaceful exercise of the rights granted” is not sufficient. (article L. 132-26 du Code de la propriété intellectuelle).
Producers must also require in the agreement that the author notifies the producer of all the sources used to write the scenario and for which the rights must be acquired, so the Producer can conduct the clearance of rights knowingly. Such a clause is particularly important as the broadcasters and financial partners often insert a similar clause in their agreements with the producers.
Finally, as the solutions vary widely depending on the specificity of each film projects, it is recommended to involve a specialized council to study the specific needs of the clearance of rights.