Film Law: Can Winnie Mandela Sue Darrell James Roodt for Winnie Movie?

I think I understand Darrell James Roodt, the filmmaker’s view, on why he does not need and will not seek Winnie Mandela’s permission to make a story on her life. On its face, even legally speaking, he is right. But, further poking both from a legal and public relations perspective shows it makes no sense for him to follow the route he has. Here’s the scoop and you all have probably seen the news.

We have all heard about Winnie Mandela, Nelson Mandela’s ex-wife. When I was a kid in Nigeria, I remember vividly the stories about Winnie, her struggle alongside her ex-husband for the freedom of Black South Africans. It was in Nigeria I watched a documentary on the plight of South African blacks and was I in tears! We all know her story, appreciate and respect her struggle, irrespective of the negative stories about her that has subsequently emerged. It appears Director Darrell James Roodt also shares in similar sentiments; so much so, he decided to make a movie of Winnie’s life.

The movie is supposedly an adaptation of Anne Marie du Preez Bezdrob’s book titled “Winnie Mandela.” Alright folks, buckle your legal seat belts for the take off. So, here is where it gets interesting. Roodt selects Jennifer Hudson to play Winnie. Both Winnie and South Africans, at the time the news of Hudson’s selcetion hits the airwaves, were incensed. Why can’t South Africans and Africans, as a whole, tell their own stories? Everyone else is always trying to depict who Africans are. I, for one, get sick and tired of being sick and tired of everyone telling the African story/stories, the African identity/identities. We’ll save that for more pertinent facts that require such discussions.

Back to the Winnie case at issue. I recall receiving press releases from a couple of these groups that were quite upset with the news of Hudson’s selection.

Roodt’s team as well as Jennifer Hudson did damage control via press. Hudson was interviewed saying she would show a lot of respect to Winnie’s character, which of course many believed and still do. Others argued that while it was great to have a South African play Winnie, it would not gain the worldwide recognition that it should because South African actresses did not have the clout to raise an eyebrow; both within Africa and especially abroad.

The noise ultimately died down only to now resurface with a CNN interview where Winnie Mandela states the filmmaker(s) were “totally disrespectful” to come to South Africa and film a movie about her, without seeking her input; especially since she is still alive.”

“Totally disrespectful” to me, is putting it mildly. How about we try “extremely spiteful.” Now, from a creative perspective, I understand the filmmaker asking, “But Ms. Uduak why do I need her permission to make my movie based on publicly available facts about Winnie? If there is any permission I need, it is that of the writer whose story I adapted and I have already secured that permission. What else do they want from me? I don’t want to give up any control of my creative work just to be politically correct or make people happy, even if it is Winnie Mandela.”

Hmmm . . . okeedokee. Here is where I will wear both my legal and PR/media hats.

Bad Publicity Ain’t Always Good: You all have heard the old saying that any publicity, even if bad, is good. It is better to be talked about by the “haters” than ignored, not so? Bad publicity ain’t always good people. The humongous distraction this lack of permission or even input from Winnie Mandela has caused to Roodt’s movie clearly indicates it would have been very respectful if he sought Winnie’s input, at the very minimum. How difficult can that be? Roodt did fly to Africa, from what the news facts state to shoot his film, didn’t he?

Now let’s get to the law.

I’ve discussed Rights of Publicity statutes and the growing litigation around it. But, there are other tort causes of actions that filmmakers in Roodt’s position can face, which makes for a strong case for getting permission/input from the subject whose stories you wish to tell. You’ve spent all this money and churned out a film. Next thing you know, instead of a standing ovation, you are being slapped with a suit for defamation, libel, invasion of privacy, emotional distress and the list goes on. Is this necessary?

If you shrug your shoulders and say, “I will fight back!” Well, sorry to break it to you. You are not the only one involved in the film-making process. Your crew including the actors and actresses could be sued too. Thought about the impact on their pocket books? What about distribution of the film? Your distributor? Thought that far ahead? As a distributor, why would I take such risks in your movie amidst all the consternation? My market is not limited only to the USA. Africa has many milllions of people versus the USA? Indeed a distributor will not be looking to do business with you as a filmmaker if you do not have the requisite insurance coverage. Where do you intend to get that coverage?

Independent of the issues raised, what about the authenticity of your films? Doesn’t it matter to you that you really capture a true and accurate depiction of the life of the subject you seek to film? I think of an African filmmaker doing a story about President Barack Obama. He/she flies into the USA, films, does the story that is to be released worldwide and when the President complains, the filmmaker says, “too bad so sad.” Clearly, not a good look!

Back to a clear and accurate depiction of facts. At the end of the day, what this filmmaker captures are stories of everyone else interpreting or discussing who Winnie was or is. Why not go directly to the source? I am a big fan of not doing things half-heartedly. You either take it on full force or you don’t. For a name like Winnie Mandela, why is Roodt okay with not speaking with Winnie? What’s the beef? You want to tell her story of which you will make lots of money from and hope to win awards but you won’t approach her to even ask about her life? It seems very cold and once again spiteful to me. How hard is it to approach her for factual accuracy of the life events that actually happened to her? I could go on, but I’ll stop.

Filmmakers looking to tell the story of a living subject, I don’t think you should follow Roodt’s route for the reasons outlined above. You ought to get a lawyer to draft a “Life Rights Agreement” for you and negotiate with your subject. If your subject is playing hardball and wanting the whole kitchen sink, then that is a whole different story and a smart lawyer will know how to resolve those issues.

As we say in Nigerian pidgin English, “is it by force?” Translated to mean, is it by force that Roodt tells Mandela’s story? “Who send am?”