Monday, November 15, 2010

Do Poltergeists Have Legal Rights?

Dear Rich: In 1978 a woman (now dead) had her house over run by a poltergeist. The case was called the Enfield poltergeist. It was reported by dozens of people and was investigated by many people. There are thousands of different sources that report this incident. I want to make a film about this case. I would probably dramatize any reports and use my own words to convey this story. The facts would remain the same but I would artistically change everything. Is this okay? We're hesitant to say that ghosts don't have any rights. We certainly don't want to be subpoenaed by an apparition of Roy Cohn (and let's not forget there have been reports of Clarence Darrow poltergeist sightings in Chicago). And anyway for some ghosts (or at least their estates) there may be post-mortem rights of publicity in certain states. However, in general, the Dear Rich staff thinks you're in the clear with your film. Here's why: 
Making a film based on real events. When making a film based on real events, there are three primary concerns: (1) Are you stepping on anyone's copyright? (2) Are you defaming or invading the privacy of any individual? and (3) Are you stepping on anyone's right of publicity?
  • Copyright. The facts of the case are available for everyone to use. As a general rule, the more that you fictionalize the less chance you'll run into copyright problems. However, too much fictionalization of real-life characters may lead to claims of defamation if the fictional liberties cause people to suffer harm. In other words if you fictionalize a real person doing something illegal or immoral, you might hear from a lawyer (or barrister since this is a UK story). Still, we wouldn't worry too much, see below.
  • Defamation/Invasion of Privacy. Occasionally people complain that a movie portrays them in a libelousmanner or a "false light." Such lawsuits rarely get very far because judges give movie makers a lot of free speech leeway. For example, a former ambassador sued the makers of the film The Missing on that basis, and the case was dismissed.
  • Right of Publicity. A right of publicity claim is unlikely to succeed solely on the basis of a film. However, it may get more traction if the film sells merchandise or other commercial items using the person's image or personna.
Bottom line dept. There have been plenty of re-tellings of the Enfield poltergeist story and so we think there's room for yours as well.