privacy right-of-publicity
Legalities of making a documentary/biography about a person&#39;s life
<p>I just read an article about how Mike Tyson is calling for a boycott of Hulu over a documentary they are making about his life.</p>
<p>He says the documentary is 'unauthorized' and that an 'authorized' life story is in development.</p>
<p>This got me wondering about the legalities with regards to making a documentary about a person's life.</p>
<p><strong>Is it illegal to make a documentary/biography without the subject's permission?</strong> I would think not, otherwise Tyson would have other options than only calling for a boycott.</p>
<p><strong>Are there certain guidelines that must be met?</strong> I would think that libel and defamation wouldn't be legal in a documentary/biography.</p>
<p><strong>Does the subject have to already be well known to the public?</strong> For example, could Hulu make a documentary about my life (I am not famous at all) even though my life details are still private for the most part?</p>
<p>I live in the USA but I am curious about other places too.</p>
<p>(Sorry I couldn't think of any better tags)</p>

<p>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a>, there is no general right for a person to control or approve a biography or other account of that person's life. Many biographies are &quot;unauthorized&quot;, which simply means that the subject, or in some cases the subject's heirs or family, did not cooperate with the biographer. Sometimes this is even considered to be a point in favor of such a work, on the assumption that an &quot;authorized&quot; biography would tend to slant or even censor things to meet the approval of the subject or the subject's family.</p>
<p>There are some restrictions on an unauthorized biography.</p>
<p>The first and most obvious is the law of defamation. A biography that includes statements that are both false and defamatory about a living subject could be the subject of a winning lawsuit. Damages in such cases can sometimes be sizable. However, the person suing must show false facts in the work. In many cases damage to reputation must also be shown, although there are some categories of statement that are considered defamation <em>per se</em>, where injury to reputation is assumed and need not be proved. These include a false statement that a person committed a crime, and a statement that a person was guilty of professional misconduct. It used to be considered defamation per se to allege that a woman had had sex outside of marriage, but I doubt that a court would so hold today.</p>
<p>Beyond that, in the US, if the subject is a public official or public figure, s/he must show <em>actual malice</em>, that is that the false statement was made knowing that it was false, or with reckless disregard for its possible falsity. This can be hard to prove.</p>
<p>In most jurisdictions only the person defamed can sue for defamation. Once that person is dead, no such suit can be brought.</p>
<p>Moreover, in the very rare case where a person's reputation is so bad that a court finds that it can suffer no meaningful further injury for certain allegations, even if these were found to be false, the court may dismiss such a suit. See <a href="https://law.justia.com/cases/new-york/other-courts/2020/2020-ny-slip-op-31813-u.html" rel="nofollow noreferrer"><em>Dykstra v St. Martin's Press</em> New York Superior Court, New York County, Docket Number  153676</a> for an example. However this would only be relevant in the very unusual case of a &quot;libel-proof&quot; plaintiff, and even then if the conduct of the author or publisher was egregious, the court might hold that punitive damages were possible. The defenses of truth, lack of actual malice, and newsworthiness are far more common.</p>
<p>Indeed defamation suits in general are hard to win and expensive to bring.</p>
<p>In some US states there is available the tort of publication of private facts. This is different from defamation in that it can still be brought when the facts published were true, while truth is a total defense against a defamation suit. However a private facts suit must establish that the facts were in fact private, or at least not widely known, and that they were published in a way that would be grossly offensive to a reasonable person. Facts that are considered of &quot;legitimate public interest&quot; or &quot;newsworthy&quot; are also not generally protected. Moreover, not every US state allows such suits at all. See <em>Diaz vs Oakland Tribune, Inc</em> 188 Cal Rpt 762 (1982) for a case in which a Private Facts case was sustained, and the steps taken by the subject to keep a sex transition private were a significant issue in the case. In <em>Hawkins vs Multimedia inc</em> 344 SE 2nd 145 (1986) a South Carolina court held that a news story identifying a teenage boy by name as the father of an &quot;illegitimate&quot; child was not newsworthy and a private facts judgement including punitive damages was upheld.</p>
<p>In the US, First Amendment protections have been taken to indicate that the courts will not suppress or punish speech or writing without good reason. This makes it harder to win suits over biographies.</p>
<p>There have been cases of magazine articles about a particular person who is in no way famous but who was considered &quot;typical&quot;. Such stories have in several cases been upheld against challenges as of &quot;legitimate public interest&quot;. See <em>Arrington vs New York Times Company</em> 434 N.E. 2nd 1319 (1982) In that case the objection was to the use of a person's photo on the cover of the <em>New York Times Magazine</em> who was not actually mentioned in the story, and who alleged that he was not similar to those who were mentioned. The use was upheld.</p>

<p>There is a concern over four torts related to privacy: intrusion upon seclusion, appropriation, public disclosure of private facts, and false light publicity. <a href="https://www.larkinhoffman.com/files/OTHER/Karasov_Privacy_MNCLE.pdf" rel="nofollow noreferrer">This article</a> gives a summary of those torts, including relevant case law. As a quick summary, the &quot;appropriation&quot; tort would limit a film's ability to use Tyson's photograph, but doesn't impose a requirement to get permission to talk about Tyson or have some guy play the part of him. Intrusion on seclusion is basically trespassing, so if they sneak into his residence to record what he is doing, that would be actionable (if the intrusion – onto his property, not in public – is highly offensive to a reasonable person, and if there is a reasonable expectation of privacy). Repeating things that are already known about him is not intrusion into seclusion.</p>
<p>Public disclosure is about making public facts that are not &quot;newsworthy&quot;, such as publicly posting announcements of indebtedness for an ordinary person. Everything about the life of a celebrity is pretty much newsworthy (that is what it means to be a celebrity). &quot;False light&quot; is similar to defamation, and it is a defense if the statements are true.</p>
