April 22, 2013 5:37pm PT by Eriq Gardner
Why the Alleged Boston Bomber Can't Stop a Movie (Analysis)
Every so often, an individual captures the spotlight for some notorious criminal activity. Eventually, that person gets arrested. Then, the defendant hires a lawyer.
An entertainment lawyer.
Why? Is there really hope of controlling rights on a possible film?
This afternoon, according to the New York Times, Boston Marathon bombing suspect Dzhokhar Tsarnaev was read his Miranda rights, as he was charged with using a weapon of mass destruction in the attack that killed three people and wounded 176. And while he was told that he has a right to remain silent and the right to consult an attorney, he also has the right to attempt to strike it rich in Hollywood. (Or at least get a cut of the take.)
But if he tries, there will be obstacles.
Massachusetts is among many states these days that has a "right of publicity" law. This statute prevents unauthorized commercial use of an individual's "name, portrait or picture." Further, the law is described as similar to one enacted in New York, which is important because in a rather unprecedented move a few weeks ago, a New York judge temporarily blocked Lifetime Television from airing a movie about convicted killer Chris Porco after the subject sued.
But the judge's restraining order was stayed after Lifetime cried about the potential disaster to free speech.
For that reason, it's almost guaranteed -- although not totally because Massachusetts has no appellate case law on the topic -- that Tsarnaev wouldn't be able to stop any production company from making a movie about his life.
"The right of publicity gives way to the First Amendment," says Lawrence Iser at Kinsella Weitzman. "A film is a significant medium for the communication of ideas and events, and is therefore highly protected by the constitutional guarantees of free expression. It follows that the filmmaker has broad rights to depict this tragic and historic event, and the people who are part of it. "
How about the law enforcement officials who were part of capturing Tsarnaev?
"To my knowledge, at least there is not any one person who has emerged as the sole hero and is recognizable now by name, image, etc," says publicity rights guru Jonathan Faber. "If that was the case, perhaps it would introduce the need for a separate analysis. If the story does not depend on the depiction of any specifically identified people, then a generalized depiction of law enforcement personnel working together would likely not trigger any one person’s right of publicity. Public interest or newsworthiness might be applicable here as well."
Back to Tsarnaev.
After all, if he retained an entertainment attorney, he wouldn't be the first individual charged with a crime to attempt to sell his life story.
Remember Colton Harris-Moore, the Barefoot Bandit? Even before he was arrested, his mother retained an entertainment lawyer. (A Robert Zemeckis film for Fox is in the works.) Recall Mary Kay Letourneau, a schoolteacher convicted of two counts of second–degree child rape? She too hired a lawyer who was able to broker a $200,000 advance for the rights to her story.
Many states have enacted so-called "Son of Sam" laws, named after David Berkowitz, who terrorized New York in the late 1970's and was convicted of murders. These laws are meant to keep people from profiting off their crimes. OJ Simpson knows this. After his book, If I Did It, came out in 2007, proceeds ended up with the Ronald Goldman family after some legal fussing.
On the other hand, some courts have struck down broadly-written "Son of Sam" laws for the same reason that an individual like Tsarnaev would find it difficult to stop a movie company from exploiting his life for a film: The First Amendment has been construed to protect expressive speech.
Even in states where "Son of Sam" laws have survived, there are still loopholes.
Ethan Bordman, an attorney in New York, says that payments can always be structured to go to pay criminal law costs. Or possibly other ways. "Look at Rod Blagojevich," he notes. "He was paid to appear on Celebrity Apprentice."
Of course, Tsarnaev probably won't be getting any calls from Donald Trump anytime soon. Still, even though the Boston Bomber can't stop a film company from making a movie about his life, and even though he might have to dance around Son of Sam laws, there still could be reasons why an entertainment attorney would be hearing from the Chechen immigrant. Only Tsarnaev -- and possibly the Department of Homeland Security -- knows the intimate details of his life and if he were to sell his life story, he'd be in a position to share inside information to help develop a film.
Then again, it takes two to make a deal.
"We both know that Hollywood often seeks to secure life story rights, though in my experience, not in relation to criminals and villains," says Faber. "It tends to occur in relation to projects where the blessing or involvement of the family is desired and beneficial to the project overall."
Faber then adds, "I can in fact think of a couple of examples that go against that statement, so clearly there are exceptions."
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