Does Pfc. Lynch own the movie rights to her life?

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April 14 2003 4:17 PM

Does Pfc. Jessica Lynch Own the Movie Rights to Her Life?

A star, whether she likes it or not
A star, whether she likes it or not

NBC is planning to make a movie about Pfc. Jessica Lynch, the rescued American POW, even if it doesn't get her permission. Can the network do that? Doesn't NBC need to buy the movie rights to her life?

Yes, it can, and, no, it doesn't—so long as NBC sticks to the facts.

People don't own "movie rights" to their lives. Facts, even facts about particular people, are not exclusively owned by anyone. That's why newspapers may write about people without their permission, and why biographers may create "unauthorized" biographies. The term "movie rights" originally comes from copyright law, under which authors own the exclusive rights to authorize movies based on their works of fiction. But copyright law only protects creative expression, not facts.

The so-called "right of publicity" does give people a limited right to control commercial use of their names, likenesses, and identities. But the right doesn't extend to news reporting, biography, fiction, and most entertainment, or to the advertising of such works. Generally, the right of publicity applies only to commercial advertising of other products and to merchandising. So, NBC could make a movie about Lynch without her permission, but it probably couldn't sell Jessica Lynch action figures.

Likewise, the so-called "disclosure of private facts" tort (which is one of the several different legal theories that sometimes go by the label "right of privacy") lets people block publication of certain highly intimate facts about themselves. But this tort has been defined quite narrowly—largely for First Amendment reasons—and doesn't apply to any facts that courts conclude are "newsworthy." So even fairly private details of Lynch's captivity likely would be legal for NBC to report. That holds true even if Lynch is found to be a "private figure" rather than a "public figure." The law recognizes that newsworthy events can happen even to private figures, and that those events may legally be reported (or used as the basis for TV movies).

Why do we often hear of studios buying "movie rights" to people's lives? One reason is to get the subject's cooperation. Lynch doubtless knows lots of things about her captivity that others don't know (or aren't telling). So the NBC people might make a better movie if Lynch and her family were talking to them. NBC might also want to get Lynch to promise not to talk to any other networks so that it can hawk its movie as an "exclusive."

A second reason is that Lynch might be able to sue if NBC gets some facts wrong. If an error in the TV movie injures her reputation, she could sue for defamation; but even if the false claims reflect well on her, she might still be able to sue NBC for placing her in a "false light," so long as the error would be something that a reasonable person would find highly offensive. (For instance, if NBC exaggerates Lynch's heroism, she might be able to sue on the grounds that a reasonable person would find it highly offensive to get credit for heroic acts she didn't commit.) And it's quite possible that NBC will get some facts wrong. For instance, since the network doesn't know just how Lynch interacted with her captors, any dialogue or action they include in those scenes will necessarily be fictionalized, possibly to a substantial degree. By getting Lynch's cooperation, NBC could also get her to promise not to sue even if there are some inaccuracies. In this sense, "movie rights" really means "the right to make mistakes."

Finally, a third reason: Though the rules Explainer describes above are pretty well-established, their precise boundaries aren't always completely clear, which leaves room for (expensive) legal debate. Studios may therefore sometimes pay off the subject to prevent the risk of a lawsuit that—even if it ultimately loses—could possibly delay a multimillion dollar production.

Eugene Volokh teaches constitutional law at UCLA School of Law and runs the Volokh Conspiracy Weblog.