Contreras and Fagundes on Life Story Rights, Modularity, and Ownership of the Self @contreraslegals @Dave_Fagundes

Jorge L. Contrerars, University of Utah College of Law, and Dave Fagundes, University of Houston Law Center, have published Based On a True Story: Life Story Rights, Modularity and Ownership of the Self. Here is the abstract.

From Richard III (1594) to King Richard (2021), dramatic productions over the centuries have depicted real-life people and events. And since the early days of Hollywood, producers have paid top dollar to secure “life story rights” from the subjects of these works. There’s only one problem: Life story rights don’t exist. Despite popular misconceptions, neither copyright, trademark, privacy nor the right of publicity give individuals the exclusive right to exploit facts concerning their lives. On the contrary: in the United States, First Amendment considerations severely limit any legal constraint on expressive speech, including dramatic depictions. So why do production companies pay amounts that are sometimes in the millions to acquire these “rights”? Drawing on interviews with practitioners across the entertainment industry, we solve this puzzle by identifying the three principal components of life story rights: the subject’s waiver of defamation, privacy and other legal claims (waiver), guaranteed access to the subject and associated materials (access), and the subject’s agreement not to work on any related project (exclusivity). The modularization of these distinct jural relations under the rubric “life story rights” is the result of successful private ordering within a fast-moving and highly competitive industry. We find three underlying motivations for the bundling of these relations under the label of life story rights: private ordering, transactional efficiency (including reduced information costs, litigation avoidance and signaling), and effectuation of the lay intuition that individuals “own” facts about their lives. And while we applaud the efficiency gains that have been achieved through the modularization of life story rights, we caution courts and legislatures against continuing to expand the boundaries of formal property interests to encompass personal experiences and events.

Download the article from SSRN at the link.