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INKLINGS: Writing Well & Profitably for Books, Film, and Stage

This Month: CURSE OF THE DEAD CELEBRITIES, Part I

By Christina Hamlett

So there you are, working at a feverish pitch on your first screenplay and suddenly realizing that it's missing that vital "something" that will really make it sizzle. In the background, the oldies-but-goodies station is running a medley of Elvis tunes. Eureka! That's it! What's not to like about a flick that features a walk-on by The King? Excitedly, you start to type "ELVIS enters the deli as CHLOE looks up from her pastrami sandwich" but something stops you. What is it? Hopefully, it's this very article you're reading now, a primer on the do's and don'ts associated with recruiting dead celebs to people your plots.

When I first started researching the subject in order to best respond to client inquiries, I was fortunate to be able to pick the brains of the following entertainment attorneys, who graciously supplied answers to some of the most common questions regarding the privacy rights of famous personas.

Jaime Wolf of Pelosi, Wolf, Effron & Spates
New York (www.pwes.com)

Mark Litwak of Mark Litwak & Associates
Beverly Hills (www.marklitwak.com)

Daniel N. Steven of the Law Offices of Daniel N. Steven
Rockville, Maryland (www.publishlawyer.com)

Scott M. Goldberg, Esq. of William L. Whitacre & Associates, P.A.
Orlando, Florida (www.showbizlaw.net)

An article such as this, of course, is no substitute for consulting a law professional if you're in doubt about just how far you can push the envelope in depicting living and dead icons. The comments herein, however, will save you some valuable time in understanding what rights are yours between FADE IN and FADE TO BLACK.

Q: Do the same laws that cover dead celebrity rights in screenplays also control people who make their living as impersonators? I can't believe that all the Elvises and Marilyns and Blues Brothers had to get advance permission before they could start their careers.

Mark Litwak: If the impersonation is a parody or otherwise protected expression, then it would be protected content under the First Amendment. Otherwise, it might be considered an invasion of the celebrity's right of publicity, or some other cause of action such as the unnamed cause of action mentioned in the Bette Midler case where a celebrity look-alike impersonated her voice for a commercial. Impersonation can also give rise to a cause of action for unfair competition and/or trademark infringement in some circumstances, unless there was a disclaimer ensuring that viewers know that this is an impersonator, not the real thing. Likewise, if it is apparent from the circumstances that an impersonator is at work, not the real person, there would be no grounds for confusion. Rights of publicity vary by state law, and the laws vary on whether this right is descends to the estate after death. There are cases where celebrity impersonators, and their promoters, have been successfully sued, such as the Big L case involving an Elvis impersonator, the Elie Landau case re Beatlemania, and the Marx Brothers' case, both of which where in New York and involved plays. The fact that some impersonators may be violating other rights, and nobody is bothering to sue them, doesn't mean that they have a legally recognized right to do this.

Q: Where does someone go to obtain permission to use a dead celebrity persona in a movie?

Jaime Wolf: First, figure out if you need to obtain permission at all. You may have to consult with an attorney, but please don't simply leap to the conclusion that you need permission from the estate of every dead celebrity mentioned in your script. If you decide that you do, then follow the money! If the dead celeb is a writer, call the subsidiary rights department at his/her publisher. If the dead celeb is an actor, try the Screen Actors Guild. The folks who handle the dead celeb's money should know who to reach and how.

Q: What constitutes "permission?" Do I need something in writing from the star or agent or would a phone call suffice?

Jaime Wolf: I'm old-fashioned, and you should be, too. Get permissions in writing and get a signed original. It may even make sense for the star/agent/heir to have their signature notarized so that there's no doubt that they really were the one who signed the document.

Q: I know that famous people can take you to court if you depict them in an unflattering and/or untrue light. Could they still find fault with something that makes them look good and sue you just because you didn't ask them first if it was okay?

Mark Litwak: First, note that the laws in the USA are not the same as the United Kingdom and other countries. All of my remarks concern US law, and these principles don't necessarily apply elsewhere. Whether you are famous or not, you can be depicted in an unflattering light and don't necessarily have a cause of action. However, if the portrayal is defamatory, or invades your privacy, you may have a case. Either way, it is much harder for public officials or public figures to prevail because they must prove that the defendant acted with actual malice. This means the person publishing a defamatory remark either knew it was false or was reckless in publishing it.

Q: I have a great idea for a screenplay about Elvis only pretending to be dead so he can fulfill his ambition of being a secret agent. Since he really is dead, my project would obviously be a work of fiction and the product of my own imagination. Do I have to get permission from anyone to do this?

Daniel Steven: Generally, no. There is an area of law called "right of publicity" that protects living celebrities, and in some states, recently dead celebrities like Elvis, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray Elvis without defaming him or his family -- and it is absolutely clear your work is fiction -- you need not seek Elvis' estate's permission. You would, however, need permission to exploit purely commercial "spin-offs" of the movie, such as t-shirts or posters. Particularly in the case of Elvis, you should consult a lawyer because of the numerous trademark, privacy, and copyright laws involved.

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Next month: More of this conversation in CURSE OF THE DEAD CELEBRITIES Part II.

Former actress and director Christina Hamlett is the author of 17 books, 98 plays and musicals and several hundred magazine columns. She is also a script coverage consultant specializing in character development and snappy dialogue. For more information, she can be reached at scriptingsuccess@cswebmail.com. 2 2

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