A blog where the practice of law meets the profession of writing | Posted weekly by writers who are attorneys | Designed to help fellow writers with questions about publishing law or legal scenarios in their fiction
Do you have a publishing law question? Or maybe a question about a fictional legal scenario in your manuscript? Ask it here.
Truth is stranger than fiction. It is an old adage that, for writers, equals entertainment. Maybe the story is uplifting or heroic, sad or horrific. Maybe the story is a retelling of noteworthy events, a glimpse into the private lives of public figures, a compelling dramatization of a private citizen’s life. Whatever the subject matter, choosing to write about facts and events involving others brings with it significant legal risks that must be analyzed for legal clearance and the necessary permissions and acquisitions of life story rights (regardless of whether the literary work is a biography, memoir, screenplay, or fictionalized true story from the writer’s own life or someone else’s). If not, the writer and publisher might find themselves the recipients of a cease-and-desist letter, or worse, the defendants in a lawsuit.
Life story rights are a collection of legal rights held by an individual regarding a story about someone’s life. The purpose for securing these rights or the permission to use the facts of someone’s life is to protect the writer and publisher from being sued for defamation, invasion of privacy, or the misappropriation of the right to publicity. Life story rights agreements, depending on the breadth of the contract language, allows the writer to use and potentially change or dramatize the life story for entertainment purposes (whether in print or on screen).
These are defenses, which means you use them after you have been sued. Instead of relying on a defense, do your best to avoid a libel claim before you publish (see below).
People have the right to be left alone. Privacy is invaded when private facts not in the public’s interest are publicly disclosed. While the truth can deflect a defamation claim, often the truth when disclosed can be the basis for an invasion of privacy claim.
Usually, invasion of privacy occurs when:
The injured person must be living (unless you want to dig up the casket and that is an invasion of another kind). The disclosure of private facts must cause harm to the person’s reputation (personal or professional). Mere embarrassment usually is not enough. The injured person must have a reasonable expectation the disclosed fact was to remain private. So, if facts occurred in a public setting, then most likely there is no expectation of privacy.
Often the most crucial point in a right to privacy claim is whether the disclosure was of public interest. Fortunately, writers have had luck in persuading courts that the disclosure of private facts is of public interest when it illuminates the human condition. Likewise, a memoirist is given leniency for disclosure of facts in her own story, even though it might be private facts inextricably intertwined with a third-party. But a third-party telling someone else’s story about a child born from an incestuous relationship that was never made public and the crime never reported has been held to violate the right of privacy. The facts were newsworthy; yet revealing the identity of the victim was not a matter of public interest.
Misappropriation of the right of publicity is using someone’s name, likeness, or identifying characteristics for advertising, merchandising, endorsements, promotional, or commercial purposes without permission. The law normally applies to the living, although some states will extend the right of publicity posthumously. And it only applies to a person who makes money from who they are (i.e. famous people).
If you do not have permission, do not use someone’s name or likeness for commercial purposes. Just because you spilt a cocktail on Liza Minnelli at a party, you would not put her picture on the cover of your memoir to boost sales. But, if you have written a biography, screenplay, or news article about a famous person, permission is not required because the right of publicity yields to the First Amendment.
Likewise, you would not add Lee Child’s endorsement on your book if he has not given one. Nor would you claim an unauthorized biography of Madonna was authorized. Use common sense – no taking advantage of their reputation for commercial purposes without permission.
And of course, a real person, famous or not, can make cameo appearances if you stick to the facts that are in the public domain.
Depending on whose story is the subject of the literary work, a writer may need to own or seek permission to use those life story rights or the story rights of any ancillary individuals involved even if they only figure marginally in the story.
Here are a few questions to consider when making that determination.
If it is your story, the First Amendment allows you great latitude in telling it. But be cognizant of not invading the privacy of others involved in your life story. You may need permission to use facts involving third parties like lovers, siblings, or friends if the private facts would be highly offensive. If you are writing about someone else’s life story and the person is not a public figure, you may need to secure a life story agreement unless the story can be told using facts from the public domain – like news articles and court transcripts.
If so, you are in luck. As noted above, the right to sue for defamation or invasion of privacy stops at the grave (feel free to spread as many lies or reveal as many secrets as you like). While the dead cannot suffer reputational harm, however, the right of publicity may extend to one’s heirs depending on the state. Be careful not to defame someone related to the dead – the wife of the dead man you claimed was head of a family-run meth lab may bring her own defamation suit.
Public figures and celebrities usually have trouble proving invasion of privacy because their lives are of public interest and there is less expectation of privacy. That is life in the spotlight. For example, Elizabeth Taylor failed to stop an unauthorized television biography of her life because the court held the biography was of interest to the public.
Again, public interest tends to yield to the First Amendment, meaning courts typically give latitude to stories that are newsworthy. However, a person still might sue if they can prove they have been defamed. If the event or facts are not newsworthy, consider fictionalizing the true story (see below).
Understand that negotiating these agreements involves competing interests between you and the subject of the story. The biggest item you are hoping to secure is a release from being sued for defamation, invasion of privacy, or misappropriation of the right of publicity. Depending on your project, you may want the subject’s or a third party’s cooperation. You may want access to personal materials, like photos or journals. Some projects demand the need for exclusive rights to the material so others cannot produce or create competing literary works. Other projects require more flexibility in how the real person is portrayed and the story embellished and dramatized.
If your literary project is based on real-life events or someone’s life story, a little upfront organization and legal scouring will save you hassles in the long run. The last thing you want is for your creative work to meet an untimely death from not securing the proper permissions and life story rights prior to publication or release.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.
