All Eyez On Me: How Alternative Dispute Resolution Could Have Saved the Failed Tupac Biopic

The high­ly antic­i­pat­ed Tupac Shakur biopic “All Eyez on Me” was released in the­aters a few weeks ago. From the start, the film was plagued with issues. Not only was the film in pro­duc­tion talks for over two decades before final­ly mak­ing it to the big screen,1but orig­i­nal direc­tor John Sin­gle­ton exit­ed the film mid-pro­duc­tion because the peo­ple involved “want[ed] to make the Tupac sto­ry that involved them and not the Tupac sto­ry” (empha­sis added).2 When “All Eyez on Me” was final­ly released, crit­ics and fans were dis­ap­point­ed, but none more so than actress Jada Pin­kett-Smith, whose child­hood friend­ship with Tupac was chron­i­cled in the film.3

Smith pub­licly object­ed to the por­tray­al of their rela­tion­ship, stat­ing “For­give me… my rela­tion­ship to Pac is too pre­cious to me for the scenes in All Eyez on Me to stand as truth. The reimag­in­ing of my rela­tion­ship to Pac has been deeply hurt­ful.” 4She went on to ref­er­ence sev­er­al scenes that mis­char­ac­ter­ized the nature of their rela­tion­ship, includ­ing ones where Tupac read her the poem on the dock, their good­bye before he left for Los Ange­les, and their alleged back­stage argu­ment. 5 Besides her pub­lic objec­tion, how­ev­er, Smith made no attempts to rec­ti­fy the inac­cu­rate por­tray­al, like­ly either because the time and cost of lit­i­ga­tion was too much, or she believed legal action was fruit­less because the film was a biopic 6rather than a doc­u­men­tary. In either cir­cum­stance, ear­ly alter­na­tive dis­pute res­o­lu­tion would have been an ide­al solu­tion. It could have cir­cum­vent­ed defama­tion and right of pub­lic­i­ty lia­bil­i­ty, and facil­i­tat­ed agree­ment between the film’s pro­duc­ers and the peo­ple char­ac­ter­ized with­in the film.

So, why did this not hap­pen? It was no secret a Tupac biopic was in the works; John Sin­gle­ton had been gun­ning to cre­ate one for years. Like­ly, Smith nev­er attempt­ed to be brought on as a con­sul­tant for the project because she trust­ed Singleton’s vision for the biopic. The direc­tor had a friend­ship with Tupac after he direct­ed the rap­per in “Poet­ic Jus­tice” and, after Tupac’s death, he spent a lot of time “talk­ing to every­one around [Tupac]… and selec­tive­ly piec­ing togeth­er their mem­o­ries and [his own] mem­o­ries.”7How­ev­er, the nature of the film indus­try is such that any­thing can change at a moment’s notice, and Smith should have pro­tect­ed her char­ac­ter­i­za­tion, regard­less of her con­fi­dence in Sin­gle­ton. Indeed, once Sin­gle­ton exit­ed the film, the new direc­tor and pro­duc­ers com­plete­ly readapt­ed the script, struc­ture and for­mat of the biopic. Unfor­tu­nate­ly, this new vision did not incor­po­rate the truth Smith was hop­ing for.

In gen­er­al, a biopic is a film that dra­ma­tizes the life of a non-fic­tion­al per­son, which means the direc­tor and writer are allowed to take cer­tain lib­er­ties that enable them to cap­ture the essence of the subject’s soul.8For exam­ple, “Kaf­ka” pur­pose­ful­ly incor­po­rat­ed the actu­al life of the author into the sur­re­al aspects of his fic­tion,9while “Con­fes­sions of a Dan­ger­ous Mind” chron­i­cled Chuck Bar­ris’ life as a CIA agent as told in his mem­oir, though high­ly debunked.10L.T. Hut­ton, the “All Eyez on Me” pro­duc­er, main­tained this biopic was a vision of “who Tupac was, who he want­ed to be… and who he had to be.”11Accord­ing to Hut­ton, the por­tray­al was not meant to recre­ate Smith’s rela­tion­ship with Tupac, but to depict what Tupac actu­al­ly want­ed the rela­tion­ship to be.12Grant­ed, Tupac had no say in this por­tray­al of his life because the rap­per was trag­i­cal­ly gunned down at the age of twen­ty-five. 13Smith, on the oth­er hand, was still alive and per­fect­ly capa­ble of con­sult­ing. With that in mind, what could Jada Pin­kett-Smith have done to ensure an accu­rate por­tray­al of her rela­tion­ship with Tupac in “All Eyez on Me”?

It was clear Smith and the pro­duc­ers had two very dif­fer­ent ideas of what Tupac’s truth actu­al­ly was. Ear­ly nego­ti­at­ing dur­ing the ini­tial stages of devel­op­ment would have cir­cum­vent­ed this issue. The pro­duc­ers want­ed to por­tray the yearn­ing they believed Tupac felt for a young Smith,14while Smith want­ed the film to demon­strate the abid­ing, non-sex­u­al love and respect the two felt for one anoth­er.15The final prod­uct makes it clear the pro­duc­ers were unsure how to por­tray their vision with­out adding a sex­u­al over­tone, which deeply offend­ed Smith. At the out­set, Smith should have met with the pro­duc­ers of the film, as well as the cur­rent direc­tor, to under­stand the image they were try­ing to project.

The ini­tial meet­ing would have been pure­ly infor­ma­tion­al. Nei­ther par­ty want­ed to go to court because both par­ties were equal­ly inter­est­ed in cre­at­ing a Tupac biopic. Lit­i­ga­tion would have put this on hold. Here, the par­ties’ mutu­al inter­est was in telling Tupac Shakur’s sto­ry, but their rea­sons were like­ly quite dif­fer­ent. Thus, it was in both par­ties’ best inter­ests to resolve these dif­fer­ences before the project com­plet­ed devel­op­ment, which would both avoid any legal con­cerns and assist in mak­ing the biopic as pow­er­ful and suc­cess­ful as pos­si­ble.

Smith’s job, hav­ing no real pow­er or say in the cre­ation of “All Eyez on Me”, would have been to glean as much as she could from the pro­duc­ers in a col­lab­o­ra­tive man­ner. Ide­al­ly, this ini­tial con­ver­sa­tion would have been infor­mal and con­ver­sa­tion­al because there was a chance the pro­duc­ers were aware their intend­ed depic­tion was inac­cu­rate and did not wish to impart this to Smith. Thus, one of the most impor­tant things for Smith to learn would be what image the pro­duc­ers were try­ing to cre­ate with their film. Did they want to cre­ate the most accu­rate depic­tion of Tupac’s life and rise to fame as pos­si­ble? Did they want to mere­ly cre­ate a film that will play well with audi­ences, fol­low­ing the time-old say­ing “why let a few pesky facts get in the way of a good sto­ry?” The pos­si­bil­i­ties are end­less, but they define the nature of the poten­tial agree­ment between Smith and the pro­duc­ers.

In addi­tion to what image the pro­duc­ers were try­ing to cre­ate, Smith should have uncov­ered why they want­ed to cre­ate that image. Was it based on sta­tis­tics pulled from gen­er­al audi­ences to demon­strate what will make the show finan­cial­ly suc­cess­ful? Was it based on one of the producer’s own inter­ac­tions with the Tupac lega­cy and his need to con­vey his par­tic­i­pa­tion in it? Again, the pos­si­bil­i­ties are end­less and they too define the nature of the poten­tial agree­ment. Smith would have been oper­at­ing from a low bal­ance of pow­er and need­ed to be very dis­cern­ing with her pre­sen­ta­tion to the pro­duc­ers. At this point in the game, the pro­duc­ers were oper­at­ing most­ly on com­mon knowl­edge of Tupac, fill­ing in the gaps for dra­mat­ic effect. For all they knew, those gaps could have just as eas­i­ly been filled with accu­rate infor­ma­tion, rather than fan­ci­ful sto­ry­lines.

If the pro­duc­ers were focused most­ly on depict­ing Tupac’s life as accu­rate­ly as pos­si­ble, this meet­ing would have imme­di­ate­ly cir­cum­vent­ed many cre­ative prob­lems asso­ci­at­ed with the project. Smith would have been able to impart accu­rate details that the pro­duc­ers would have glad­ly accept­ed and incor­po­rat­ed. How­ev­er, since the pro­duc­ers did not even attempt to bring Smith on as a con­sul­tant and Sin­gle­ton had already exit­ed the project due to the pro­duc­ers’ unwill­ing­ness to hon­or Tupac’s lega­cy, this sit­u­a­tion is high­ly unlike­ly. Thus, Smith would have to come up with some val­ue cre­at­ing options to put on the table.

If the pro­duc­ers’ struc­ture and script choice was based upon finan­cial via­bil­i­ty, per­haps there were pre­vi­ous­ly unknown sto­ries from Smith’s own per­son­al rec­ol­lec­tion she could grant them that would still pro­vide the same dra­mat­ic effect, while still speak­ing Tupac’s truth. If the pro­duc­ers’ choic­es were based upon the need to incor­po­rate them­selves into the sto­ry, per­haps Smith could appeal to their love of Tupac’s lega­cy (why else would they be so invest­ed in cre­at­ing a biopic?) and entreat them to hon­or it with accu­ra­cy. If this was unsuc­cess­ful, as a last resort she could threat­en law­suit against any inac­cu­ra­cies relat­ing to the por­tray­al of their rela­tion­ship for either defama­tion or right of pub­lic­i­ty claims, depend­ing on the spe­cif­ic scene.

Like­ly, the out­come of these nego­ti­a­tions would have been a mutu­al­ly ben­e­fi­cial res­o­lu­tion. The pro­duc­ers would have been able to cre­ate their high­ly antic­i­pat­ed biopic, full of pow­er­ful scenes from Tupac’s life that not even the most devout fans knew about pri­or to Smith reveal­ing them. Smith would have been able to watch the only film in exis­tence based upon her child­hood friend with­out feel­ing pain at a crude and vague­ly dis­re­spect­ful char­ac­ter­i­za­tion of what they shared, sleep­ing easy at night know­ing she had done her part to pre­serve his lega­cy. The “All Eyez on Me” deba­cle is a great exam­ple of how alter­na­tive dis­pute res­o­lu­tion, par­tic­u­lar­ly in the ear­ly stages before a prob­lem has even arisen, can cir­cum­vent poten­tial­ly dis­as­trous con­se­quences.

Author: Becca E. Davis

Managing Editor, GEMALaw Review Georgetown Law, L'18