Depiction Releases
Photo by Kyle Head
I was reading an article about a recent settlement that resolved a lawsuit against Netflix and several producers of the miniseries “Griselda.” Here is the link to the article: https://www.hollywoodreporter.com/tv/tv-news/sofia-vergara-settles-lawsuit-netflix-griselda-1235821431/. Griselda Blanco was a drug lord from Colombia who was based and operating her business from Miami. This is a good article from Rolling Stone about the movie and Blanco’s background: https://www.rollingstone.com/tv-movies/tv-movie-features/griselda-blanco-sofia-vergara-netflix-cocaine-miami-drug-trafficking-murder-1234965871/. It includes an interview with Blanco’s son, who initiated the lawsuit.
One of the issues the Hollywood Reporter article says was a basis of the suit was that Blanco’s son and his wife were depicted in the miniseries without their permission. Depiction releases need to be addressed in pre-production. It’s typically necessary to show that all necessary releases have been obtained for purposes of distribution. They typically involve paying a person to allow you to depict them in their work, and them agreeing to let you use their name, their likeness, personal information, and other aspects of their life, in exchange for not suing you for defamation, invasion of privacy and, in jurisdictions that recognize rights of publicity, violation of the right to publicity. The release is irrevocable and perpetual to prevent a person from being able to withdraw consent halfway through filming, or when it’s getting ready to air. There’s usually language in a release that the user of the depiction has the right to use the depiction in a variety of media and in a variety of ways without needing further permission.
There are times when a depiction release is not needed, or can be avoided. If the information being used can be considered to fall within the category of “fair use,” then there is a likelihood that a release is not needed. If the person is deceased there is no release needed assuming you are not using material that is not still copyright protected like photographs, paintings, music, etc., and not in a jurisdiction that has post-mortem rights of publicity. Right to the privacy, or claims of defamation, of a deceased person do not transfer to his estate or his heirs.
Whether or not you get a depiction release can be the difference between a peaceful release of a film, tv show, etc., or a potential lawsuit by the person being depicted, no matter how slight or suggestive, for a massive amount.
Photo by Romain Dancre.