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“Life rights” is something that is often discussed, but rarely understood. It refers to the notion that a movie studio has some obligation to get the consent of an individual if that person’s name and life experiences are to be adapted into a television show or feature film. However, there’s no explicit law requiring that. Instead, there are some state laws protecting one’s name or likeness from being commercially misappropriated, and that’s what the family of Melvin B. Tolson is attempting to use in a lawsuit over the 2007 film, The Great Debaters, directed by Denzel Washington.
Tolson was a professor at historically black Wiley College who in the 1930s, amidst segregation, led the school’s debate team to a national championship. His family, through the representative David Wayne Semien, has now filed a lawsuit against Oprah Winfrey’s Harpo Films, The Weinstein Company and MGM, alleging they were “not compensated in any monetary way for the defendants’ commercial use of Mr. Tolson’s name, distinctive attributes and unique life experiences.”
To prevail on a complaint filed in Louisiana federal court, the Tolson family is going to need some awesome debate skills because they will surely encounter arguments about limiting free expression.
According to the complaint (see here), when the film was being made Tolson’s son offered producers assistance in the form of recordings of their father for the purpose of Washington’s study. Later, the family was invited and did attend the film’s premiere. Harpo staffers allegedly told the family, “We are going to take care of you.”
“In so doing, defendants dissuaded the plaintiffs from hiring a lawyer and exploited the plaintiffs’ lack of business experience and relative lack of education, as well as their trust in their understanding of the character (mis)represented by Winfrey, Denzel Washington and the defendants,” states the complaint.
The family allegedly later attempted to contact Winfrey, but never got in touch.
Even if they had a qualified lawyer from the outset, would they have gotten anything? Well, maybe.
What “life rights” really constitutes is a covenant not to sue on grounds like right of publicity or defamation. In addition to avoiding hassle, studios often come to these agreements to gain the cooperation of film subjects or their families for publicity purposes. Studios really don’t want to risk releasing a movie with animosity in the background.
The Tolson family may indeed have had some bargaining leverage to exert before The Great Debaters came out, but the issue of whether or not they can now collect damages for unauthorized use of their patriarch’s name and life story is an entirely separate issue.
First and foremost, there’s the First Amendment, which maybe best shown in the case involving The Hurt Locker can protect biographical stories even if fictionalized. Then again, as evidenced by a recent ruling by a New York appeals court concerning the Lifetime film, Romeo Killer: The Christopher Porco Story, the standards on applying First Amendment protections aren’t exactly uniform throughout the nation. Nevertheless, as this case proceeds, expect to see Harpo Films, The Weinstein Company and MGM raise a free speech flag over something that they will likely portray to a court to be an expressive, rather than commercial, work. If consent was always necessary before featuring someone’s name and life story, after all, this very story wouldn’t exist.
The Tolson family faces more future challenges on the road ahead. The family clearly cooperated to some extent in the making of the film by providing recordings of Melvin B. Tolson, which may constitute an implied consent of his posthumous rights. The family is also only suing now, a decade after The Great Debaters was released. Although the Supreme Court has ruled that lengthy delay doesn’t necessarily doom a copyright lawsuit or just this week a patent lawsuit, the application of laches (unfair prejudice by delay) may still be available to defendants in a right-of-publicity case.
In short, the Tolson family, David Wayne Semien and their attorney Scott D. Wilson may have read the ample stories about “life rights,” and assume the absence of an agreement means they are due; However, this shouldn’t be assumed by others. The family better prepare for one more great debate.
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