You can generally make a movie about someone without their permission. The First Amendment protects storytelling about real people, and courts have repeatedly held that films, documentaries, and docudramas are protected speech. The Ninth Circuit, in a case brought by a soldier over the film The Hurt Locker, said the First Amendment “safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art.”1U.S. Court of Appeals for the Ninth Circuit. Sarver v. Chartier Permission isn’t the legal gate. But going forward without it exposes you to three separate kinds of lawsuits, and those risks are where filmmakers actually get hurt.
Why Permission Isn’t Legally Required
No law says a filmmaker must secure a subject’s consent before dramatizing their life. In the Hurt Locker case, the Ninth Circuit dismissed the subject’s right-of-publicity claim outright, holding that applying publicity rights to a film like that would be an unconstitutional content-based restriction on speech. There was no compelling state interest strong enough to override the filmmakers’ First Amendment protection.
That constitutional shield is broad, and it’s the reason unauthorized biopics get made and released every year. It doesn’t, however, erase every other legal claim someone might bring. Courts decide these cases by weighing expressive freedom against the specific harm alleged. The practical result: you’re unlikely to be blocked from releasing your film, but you can still be sued over how you told the story.
The Three Lawsuits You Can Still Face
When someone objects to being depicted in a film without their consent, their legal options fall into three main categories. Each targets a different kind of harm, and each has its own defenses.
Defamation
This is where most of the real risk lives. A defamation claim needs a false statement of fact, communicated to others, that damages someone’s reputation. In a film, that usually means an invented scene or line of dialogue that shows a real, identifiable person doing something they didn’t do, and the invention makes them look bad.
Who the person is changes the standard of proof. Public officials and public figures must prove “actual malice,” meaning the filmmaker either knew the portrayal was false or acted with reckless disregard for its truth.2Justia U.S. Supreme Court Center. New York Times Co. v. Sullivan, 376 U.S. 254 (1964) That bar was set high on purpose, so fear of lawsuits doesn’t chill speech about powerful people. Private individuals only need to show the filmmaker was negligent.
Every biographical film invents dialogue, compresses timelines, and creates composite characters. That much is expected. The line gets crossed when invented scenes attribute specific harmful conduct to a real person: a politician taking a bribe they never took, a doctor committing malpractice that never happened. Damages can cover reputational harm, emotional distress, and in egregious cases, punitive awards.
Right of Publicity
The right of publicity gives people control over the commercial use of their name, image, voice, and other identifying traits. Most states recognize it in some form. Statutes and common-law rules vary, but the core idea is that a person’s identity has economic value and that using it to sell things without permission creates liability.
The question in the film context is whether the movie counts as “commercial” in the publicity-rights sense or as protected expression. Courts have consistently treated feature films and documentaries differently from advertisements and merchandise. The Supreme Court acknowledged the right of publicity in Zacchini v. Scripps-Howard Broadcasting Co. but confined it to narrow situations, distinguishing it from ordinary news coverage and storytelling.3Justia U.S. Supreme Court Center. Zacchini v. Scripps-Howard Broadcasting Co. California courts later developed a “transformative use” test, holding that when an artist adds significant creative elements beyond a mere reproduction of someone’s likeness, the First Amendment outweighs publicity rights.4Justia. Comedy III Productions, Inc. v. Gary Saderup, Inc.
A biographical film that dramatizes events, writes dialogue, and interprets a life through an artistic lens will almost always clear that bar. Trouble comes from merchandise, promotional materials, and tie-in products that use a subject’s likeness purely to generate sales.
Invasion of Privacy
Privacy law creates a separate set of risks. Four theories tend to come up in filmmaking. Intrusion upon seclusion targets how you gathered information: secret recordings, trespass, or deceptive access can create liability even if the footage never appears in the finished film. Public disclosure of private facts covers truthful but deeply personal information, such as medical or sexual history, where the disclosure would offend a reasonable person; newsworthiness is the main defense, and it protects most facts woven into a film about a public figure or major event. False light targets portrayals that create a misleading overall impression even when no single statement is technically false, which makes it especially dangerous in semi-fictional treatments where the audience can’t tell what’s real. Appropriation of name or likeness overlaps with the right of publicity and is usually analyzed under the same First Amendment balancing.
Filmmakers who rely on public records, published interviews, and voluntary cooperation avoid most privacy exposure. Filmmakers who dig into intimate facts about private individuals whose stories are only tangentially connected to the main subject take on more of it.
If Your Subject Is Deceased
Filmmakers often assume that a film about someone who has died is legally safe. It’s safer, not risk-free. Defamation claims generally die with the person. An estate cannot bring a new defamation lawsuit on behalf of a deceased relative. Family members who feel harmed would have to pursue something like intentional infliction of emotional distress, which faces its own high bars.
Publicity rights are different. Roughly twenty states have post-mortem publicity statutes, and the duration varies dramatically. Some states protect the right for as few as ten years after death; others extend it for a hundred. Tennessee allows it to last indefinitely as long as it’s being commercially exploited. A handful of states limit publicity rights to living persons only. Which state’s law applies can decide whether an estate has a viable claim against your film.
Life Rights Agreements: Not Required, Still Worth It
A “life rights” agreement is the industry’s standard tool for reducing legal exposure. It’s a contract in which the subject grants a filmmaker the right to develop their story, usually in exchange for compensation. There is no formal legal right called “life rights.” The agreement is really a bundle of waivers and licenses: the subject agrees not to sue for defamation, invasion of privacy, or publicity violations, and often provides access to personal documents, photographs, and cooperation during production.
These agreements commonly cover the creative liberties the filmmaker can take, whether the subject has any approval rights over the final product, exclusivity terms preventing the subject from selling their story to a competitor, and compensation. Well-drafted versions include indemnification clauses protecting the production if third parties depicted in the film bring claims of their own.
Life rights agreements are not legally required. No law says you must have one. What the agreement does is dramatically shrink your litigation risk. Without one, you’re relying entirely on constitutional defenses if the subject sues. With one, the subject has contractually waived most of their claims. For films about private individuals whose cooperation you need anyway, the agreement is almost always worth pursuing. For films about public figures who won’t participate, you can proceed without one, but the pressure on accuracy becomes much higher.
What a Disclaimer Does and Doesn’t Do
Nearly every biographical film includes some version of “based on a true story” or “certain events have been fictionalized for dramatic purposes.” Filmmakers sometimes treat these as legal shields. They aren’t. Courts have consistently held that a disclaimer does not immunize you from defamation or privacy claims if the underlying portrayal is actionable. If a viewer can identify the real person behind a character despite name changes and invented details, the disclaimer won’t save you.
Disclaimers do help in smaller ways. They can support an argument that you didn’t intend to present invented scenes as literal fact, which can undercut a defamation element. They can also discourage frivolous suits from people who happen to share a name with a character but aren’t actually depicted. Treat a disclaimer as a minor piece of an overall strategy, not a substitute for accuracy.
Can a Court Actually Stop the Film From Being Released?
Almost never. The First Amendment creates a heavy presumption against prior restraint, and courts are deeply reluctant to block speech before it reaches an audience.5Constitution Annotated. Amdt1.7.2.3 Prior Restraints on Speech The Supreme Court has said the burden on anyone seeking to stop a film’s exhibition is even heavier than the burden of justifying criminal punishment after the fact.
Courts almost always let the film be released and address any harm through monetary damages afterward. Temporary restraining orders are possible in theory but face the same presumption and are vanishingly rare for films. This is one of the strongest protections filmmakers have: even when your film creates liability, the remedy is almost always money, not suppression. The film gets seen. You might have to pay for it.
Errors and Omissions Insurance and the Legal Review
Whether or not you obtain a life rights agreement, distributors almost universally require errors and omissions (E&O) insurance before they’ll release a film. E&O covers lawsuits alleging defamation, invasion of privacy, unauthorized use of name or likeness, copyright infringement, and similar claims. It covers both defense costs and any damages awarded.
Before issuing a policy, the insurer typically requires a legal review of the script and finished film by a specialized entertainment attorney. That review often catches problems before release. For a film about a real person, it will be especially thorough, examining every scene for defamation risk and checking the factual basis for key claims. Budget for both the premiums and the underlying legal review as unavoidable production costs. If you’re planning to make a film about someone without their permission, this is the stage where the risk you’ve been carrying gets priced, tested, and, ideally, contained.