It’s a question that we often get asked by content creators: “I am telling a story that is based on the life of a real person - do I need to obtain life story rights, in order to tell that story?” The answer seems to surprise people. We tend to assume that there must be some kind of “general IP right” in the story of someone’s life. In New Zealand however, there is no such thing. That said, the way in which you tell the story of another person may engage the law of defamation, invasion of privacy or breach of confidence.
In this country, anyone can tell the true life story of another person using publicly available information, without needing a rights clearance. Problems tend to arise when that story is not true, or you can’t establish that it is true, where the information used for your story is private or confidential information, or where international elements to your story (such as the subject or distribution channels) engage a right of publicity.
The risk of defamation will only arise if your story makes a statement of fact about an identifiable living person, which tends to lower that person’s reputation in the mind of the public. There are several points to unpack here.
Firstly, under New Zealand law, you cannot technically defame the dead. If the story that you are telling is about a deceased person, then no matter how damaging it is, their estate will not be able to sue you for defamation. Their (still living) acquaintances or relatives may have a cause of action against you, but only if your story also defames them personally.
The second point to note is that defamation focuses on whether your statement has lowered that person’s reputation. This will involve an analysis of their existing reputation, to establish whether your statement has lowered it.
The next point is that truth is an absolute defence to defamation, so if your statement is true (and importantly, you can prove that it is true) then even if the statement is damaging, you won’t be liable for making it. But can you prove that it is true? Do you have witnesses? Do you have supporting documents? Additional defences to defamation include honest opinion, qualified privilege and the public interest defence.
Invasion of Privacy
If your story includes facts that were reasonably expected to remain private, and your story gives publicity to those facts that would be considered highly offensive to the objective and reasonable person, then you may be liable for invasion of privacy. However, this is a high threshold.
There must be a reasonable expectation of privacy in the relevant facts. If the subject of your story has already publicised these facts herself, or they are generally already well known, then she will not have a reasonable expectation of privacy in them.
The publicity given to those facts must also be considered highly objectionable to the objective and reasonable person. There is a legitimate public concern defence.
Breach of Confidence
If your story includes information about a person that is of a confidential nature, which was imparted to you (or which you learned about) in circumstances obliging you to keep it private, and your story discloses that information to the detriment of the subject, you may be liable for breach of confidence. This applies even where you have not contractually agreed (such as by NDA) to keep it confidential.
Right of Publicity
The right of publicity gives a person the right to control the commercial exploitation of their name, likeness and recognisable details. There is currently no right of publicity under New Zealand law, however it is a very valuable property right in large parts of the USA and civil law jurisdictions. If your story will be distributed internationally, or your subject is from a jurisdiction which recognises this right, you may need a rights clearance for it.
If there is any risk of defamation, invasion of privacy, breach of confidence or the engagement of publicity rights in the story that you are telling, then it is wise to obtain life story rights. If you need help, come and have a chat with us.