The law doesn't recognize "life rights." Should it? Reflections inspired by "Only Murders" and a Prince biopic

In the first episode of the currently streaming Season 4 of Hulu's Only Murders in the Building, we learn that Paramount is making a film based on the podcasters. The trio go to Hollywood, where they are asked to sign contracts. Steve Martin's character Charles and Martin Short's character Oliver readily sign on the dotted line (agreeing to be portrayed by Eugene Levy and Zach Galifanakis, respectively), but Selena Gomez's character Mabel (to be portrayed by Eva Longoria) hesitates. Mabel has qualms about the film's intended portrayal of her, leading to angst and pressure from Oliver. The viewer is not informed of what exactly the Only Murders leads are being asked to sign, but there is a strong suggestion that it is a contract for what are commonly called "life rights"--i.e., the legal rights to the stories of their respective lives.

To similar effect, an article in yesterday's New York Times Magazine describes the making and content of a nine-hour documentary on the life and music of Prince. The article's author is one of a handful of people to have seen the film, which, she explains, may never see the light of day due to objections by Prince's estate. Late in the article the reader learns that the estate has legal leverage because its contract with Netflix granting the filmmaker access to private material (Prince's "vault") contains a term stating that the resulting film would be no longer than six hours in length. Until that point, however, it appears that the estate is attempting to exercise Prince's life rights--and indeed, the article hints that the estate may have other objections as well.

Yet despite the widespread practice of studios paying subjects for life rights, they are not legally required to do so. No one owns an intellectual property right in their life story. Studios pay for life rights because the contracts into which the subjects enter typically include waivers of rights that those subjects do possess, such as the right to bring a lawsuit for defamation or invasion of privacy.

One might nonetheless ask whether there ought to be a right to life rights. That question is usually asked with an eye towards commercial exploitation. If someone has led a sufficiently interesting life to warrant a Hollywood movie, we might have an intuition that it is unfair for someone else to profit from the public narration of that life without compensating the person whose life it is. However, I want to focus on a different kind of life right, one that might, alternatively, be conceptualized as an expansion of the right of privacy.

According to the Restatement (Second) of Torts, invasion of privacy comprises four distinct kinds of torts: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public. Invasion of seclusion and appropriation are beyond the scope of my discussion here, as is false-light publicity. In the fictional Only Murders example, Mabel  might have a false-light publicity claim insofar as the film version suggests she is more of a--for lack of a better term--"loser" than she is, but in the real example, it appears that the representatives of Prince's estate worry that the film's accurate portrayal of Prince's behavior would be harmful to his artistic legacy (and thus the commercial value thereof). 

The estate has cause to be concerned. Although Michael Jackson's reputation took a major blow even during his lifetime based on credible allegations that he abused children, his estate nonetheless fought hard to stop HBO from releasing Leaving Neverland. Ezra Edelman's nine-hour Prince documentary, as described in the Times article, is much less of an exposé and more of an attempt to give a nuanced portrayal of a mysterious musical genius whose public bravado masked private doubts and pain, but it apparently also includes matters that will, rightly, cause many Prince fans (including me) to worry about what exactly our fractional pennies are supporting each time we stream 1999 or When Doves Cry. Most prominent is physical violence. The Times story describes

Jill Jones, one in a long line of girlfriend-muses whom Prince anointed, styled, encouraged and criticized. Hers is one of the most anguished testimonies in the film, revealing a side of Prince many of his fans would rather not see. Late one night in 1984, she and a friend visited Prince at a hotel. He started kissing the friend, and in a fit of jealousy, Jones slapped him. She says he then looked at her and said, “Bitch, this ain’t no [expletive] movie.” They tussled, and he began to punch her in the face over and over. She wanted to press charges, but his manager told her it would ruin his career. So she backed off.

Despicable? Surely. If Prince were still alive and if the statute of limitations had not run, it would be appropriate for him to face criminal and civil liability. Moreover, as numerous feminist scholars have explained, the time is long past for conceptualizing domestic violence as a private matter. That way of thinking gave us the marital rape exemption and the rule of thumb (permitting a man to beat his wife with a stick or whip no wider than a thumb). I can see no basis for suppressing recollections or other evidence of physical violence on privacy grounds.

But there is apparently much more in the film. It's nine hours; how could there not be? Much of that material depicts Prince in legitimately private moments. Not in the sense that provision (a) of the Restatement invokes: he is not shown unawares sitting on the toilet or picking his nose. Rather, the film seemingly aims to give viewers a full picture of Prince's inner mental and emotional life--the sorts of things that are not criminal but that most people wish to keep private.

The state tort cases that expound provision (c) give protection to that wish by providing liability for unreasonable publicity to public life. But there's a catch. Here's an illustration the Restatement provides:

6. A, an undistinguished hardware merchant, is engaged in an adulterous affair with the wife of one of his friends. B Magazine buys from private detectives a picture of the pair in a hotel room in a state of dishabille and publishes it. B has invaded A's privacy.

You might be wondering why it's important that A is "an undistinguished hardware merchant." The answer, I assume, is that A is nobody special. If A were instead an extremely well-known celebrity, A would be a "public figure" as that term is used in the Supreme Court's First Amendment doctrine. As a note in the Restatement observes, there are potential First Amendment limits on right-of-privacy liability for true statements.

In cases like Gertz v. Robert Welch, the Supreme Court extended the restrictions on defamation liability first announced in NY Times v. Sullivan--which partly shields statements about public officials--to public figures. In recent years, Justice Thomas, later joined by Justice Gorsuch, has suggested that NY Times v. Sullivan should be overruled on originalist grounds. That's a terrible idea. Reporting on public officials is vital to democracy and would be unduly chilled by a regime of strict liability for false statements.

However, my late colleague Steven Shiffrin argued fairly persuasively that the leap from public officials to public figures was unwarranted. The fact that the public happen to be interested in the details of celebrities' private lives does not mean that there is a public interest in our learning those details. In an era of voluntary over-sharing, there is no good reason to expose details that the people involved would rather keep private.

The fact that Prince is dead arguably complicates matters. In every U.S. jurisdiction of which I'm aware, neither defamation actions nor right-of-privacy actions survive death. "You can't libel the dead" is how the former rule is typically put. I should say that I find the rule not entirely satisfactory. A person's reputation is one of the few things that goes on after they die. Disallowing defamation actions by a dead person (that is, by their estate) seems to me difficult to justify. Similar considerations apply to privacy. Just as we honor a dead person's wishes through the disposition of their assets in accordance with wills and other instruments, so we seem to have good reason to honor their wishes about what they meant to keep private.

I make that last set of observations aware of the most famous of cases: Max Brod ignoring Franz Kafka's instructions to burn his unpublished manuscripts, including The Trial and The Castle. I'll put aside doubts about whether the story, as usually told, is entirely true. If Kafka truly gave Brod unambiguous instructions to burn the papers, was it wrong for Brod to publish them nonetheless? If Prince had given express instructions that his very large set of unreleased recordings should be destroyed, would it be wrong for his heirs and estate to release them? If so, should the law step in?

Those are genuinely difficult questions, but what makes them so is that the public are not only interested but legitimately interested in great works of literature and music. Whatever answer we give in Brod's case, we can still conclude that the dead--no less than the living--and the famous--no less than the anonymous--generally have a right to present to the public only those (non-criminal) aspects of themselves that they see fit.