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.
CALL TO ARTISTS: Read the Fine Print.
As an artist, I often consider a variety of “CALL TO ARTIST” announcements I see on social media or in art magazines, etc. For the most part the announcements are very clear and fair in explaining their terms of participation. But every once in a while I see language in a CALL TO ARTISTS that’s mind-blowing.
For example, if a CALL TO ARTIST states in its terms of participation that by participating you are agreeing that the host can use your artwork however they wish and into perpetuity, you should consider running in the other direction. Or at least delete that opportunity from your mind as an option. Other language I’ve seen stated that the artist was agreeing to give up all rights to the artwork by participating, and agreeing to divest all his or her rights in the art to the host of the exhibit, contest, or whatever the event is. Again, run or delete.
You, the artist, are the owner of a bundle of rights regarding your original artwork. When you sell the physical original art, you don’t sell the rights that were created when you made the artwork. You still maintain the right to create copies and sell them. You have the right to contract for the use of the image in films, video games, album covers, on household goods, etc. You also have the right to do nothing further beyond selling the original art. The buyer can sell the physical art they bought, but that’s it. The artist’s rights do not automatically transfer to a buyer of the original art unless there is a written agreement stating that that is the case.
This is why it’s so important to know what you are signing when you enter contests or respond to any CALL TO ARTIST announcements. You worked too hard to create your art. Protect your rights to it. No contest or CALL TO ARTIST is worth surrendering more than you have to.