From Helen Sedwick:
Scarlett Johansson won a defamation suit against a French writer for creating a promiscuous character who happened to look like the movie star. A Georgia jury awarded $100,000 to a woman who claimed a character in The Red Hat Club falsely portrayed her as an “alcoholic s**t.”
Writers face three big risks when using real people in their writing: defamation, invasion of privacy, and misappropriation of the right of publicity. Yet every fiction writer bases characters on real people. Memoirists and nonfiction writers identify people by name. How can writers use real people in their work without risking a lawsuit?
First, a simple rule. If what you write about a person is positive or even neutral, then you don’t have defamation or privacy issues.
For instance, you may thank someone by name in your acknowledgements without their permission. If you are writing a non-fiction book, you may mention real people and real events. However, if what you write about identifiable, living people could be seriously damaging to their reputation, then you need to consider the risks of defamation and privacy and how to minimize those risks. I am not talking about portraying your mother-in-law as a bossy queen bee; I am talking about portraying your mother-in-law as a drug dealer.
Common sense and a cool head are key.
First, let’s start with a quick summary of United States law. (The laws of other countries are more favorable to the targets. In today’s Internet environment, you could get sued in France for a blog written in California.)
To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (target) must prove all of the following:
False Statement of Fact.
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. Opinions are also protected because they are not “facts.” Couching something as an opinion is not bullet-proof. Courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The more specific a statement, the more likely it will be seen as a statement of fact. Parody is not defamatory if the absurdity is so clear no reasonable person would consider the statements to be true.
Of an Identifiable Person:
A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target. Typically, the target must be a living person, but companies and organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
That is Published:
One person (other than the target) must read or hear the statement.
Causes reputational harm:
The statement must be more than offensive, insulting, or inflammatory. It must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”
Made With Actual Malice or Negligence:
If the target is a public official or a public figure, then the plaintiff must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some fault or negligence by the defendant.
Invasion of Privacy Claims
Even if you publish the truth, you may still be sued for invasion of privacy if you disclose private information that is embarrassing or unpleasant about an identifiable, living person and that is offensive to ordinary sensibilities and not of overriding public interest.
The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries a camera in their pocket. Similarly, public figures can have little expectation of privacy. A movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointing her way.
The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of suits.
Even if the information is highly offensive, courts often decide there is no legal liability if the information is of public interest. Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest.
Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims. As you can imagine, judges and juries are not sympathetic when the perpetrator makes a privacy claim.
In any situation, however, writers should try to get releases from people who will be recognizable in their work.
If you cannot get a release, then consider changing the person’s name and identifying characteristics. Yes, this is permissible, even in memoirs.
Another flavor of invasion of privacy is called false light. Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture, a true fact. If the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.
Misappropriation of the Right of Publicity
Using someone’s likeness, name, or identifying information for advertising, promotional, or commercial purposes may get you sued. Whether the person is a private individual or public figure, you would be liable for damages, including punitive damages. If the person is dead, you could still get sued in some states and foreign countries.
Right of Publicity claims are limited to:
- Advertising: Using a person’s image in an advertisement. Same applies for using look-alikes or sound-alikes. Bette Midler won $400,000 from Ford after they used a singer to mimic her voice in an automobile commercial.
- Merchandise: Selling t-shirts, mugs, greeting cards and other products with unauthorized images.
- Impersonations: Impersonating a celebrity for commercial purposes. Yes, all those Elvis impersonators either have permission from Elvis’s estate or are taking legal risks.
- Implied endorsements or relationship: Wrongfully implying that someone has endorsed your work or was involved in its production violates a number of laws.
Link to the rest at Helen Sedwick
Ms. Sedwick is an attorney who appears to have transitioned into an indie author. A check of the records of The State Bar of California shows her as inactive which means she is an attorney in good standing with the California Bar who doesn’t presently practice law.
To be clear, this is a voluntary status that a member of the California Bar can elect if she/he no long wishes to be involved in the practice of law, but does want to keep the option of returning to active practice open if she/he changes her/his mind in the future. The last time PG checked, an inactive member still has to pay some bar dues, but doesn’t have to spend the time and money to attend Continuing Legal Education classes.
PG is also a member of The State Bar of California. He is currently on Active status because he is practicing law.
When PG became a member of The Missouri Bar many years ago and practiced law exclusively in that state, he switched to inactive status in California. He kept that inactive status through his subsequent employment as an executive and in-house attorney at several high-tech companies, then changed to active status again when he resumed practicing law focusing on legal and contract problems faced by authors and small publishers.
Ms. Sedwick has written a book titled, Self-Publisher’s Legal Handbook. PG hasn’t read the book, but based upon what she has written in her blog post, he would expect that Ms. Sedwick knows a lot about this topic.
PG will caution that some elements of defamation, invasion of privacy, and misappropriation of the right of publicity exist under federal law and state law and, while the general rules may be similar, there may be some borderline cases that are actionable in some locations and not actionable in others.
The internet has added a whole new element to defamation law because a defamatory remark may originate in one state or nation but appear in all states and nations via the internet. There is even something called Twibel, libel via Twitter – See Pillsbury: Internet+Social Media for a discussion of Twibel.