A Study in Scarlett (Or: Can I Be Sued For Writing That?) Part 2 of 2

In Part 1 we discussed defamation. Today we’ll cover two related concepts that can also expose a writer to liability, as well as some defensive strategies that writers may wish to adopt.

“Right to Privacy” simply refers to the right of an individual to be left alone in her personal affairs. As with defamation, privacy laws vary from state to state, but with common elements in most states. Generally speaking, an aggrieved plaintiff must prove (a) that publicity was given to matters concerning her private life, (b) that the matters made public would be highly offensive to a reasonable person of ordinary sensibilities, and (c) that the matters publicized were neither newsworthy nor concern any legitimate public interest.

This last element of the tort – newsworthiness or public interest – effectively precludes invasion-of-privacy suits by celebrities or other public figures. But authors of biography, true-crime, and other forms of nonfiction often write about real people who are not celebrities, and even novelists will sometimes base their characters on people they know. Care must be taken in these cases to avoid invading the privacy rights of your subjects, whose identities are either explicitly stated or can be gleaned from the context of the writing.

Memoirists who publicize private and embarrassing information about their (non-celebrity) friends or family run an especially high risk of being sued for invasion of privacy, and this is doubly true of self-published authors who cannot cite a traditional publisher’s support for her work as evidence of its inherent “public interest.”

As is the case with defamation, only a living person can sue for invasion of privacy. Unlike defamation, however, the truth of the statement in question is no defense against potential liability.

“Right of Publicity” refers to the commercial value of an individual’s name, likeness, or identity. If you’re planning to sell t-shirts with Justin Bieber’s unlicensed image, for example, or to use his name to advertise your other products or services, you can expect to be sued.

Unlike defamation or the right to privacy, which are considered “personal” rights, an individual’s right of publicity is a property right that exists during her lifetime and that, in many jurisdictions, survives her death and may be enforced by her estate. (So much for your fallback plan to sell Elvis Presley t-shirts.)

But can you put Justin or Elvis on the cover of your latest book? The answer is . . . it depends.

Unfortunately for authors whose works are, of necessity, published in all fifty states, the laws governing right-of-publicity actions are a veritable hodgepodge of inconsistent state laws. Roughly half the states, for example, have statutes that expressly govern right-of-publicity claims, while half still rely on common law principles that prohibit unfair competition or preclude the misappropriation of a person’s name or likeness on privacy grounds. Moreover, in those states that have enacted legislation, the laws vary widely, with some affording post-mortem protection to all citizens and others protecting only those persons whose name or likeness had demonstrable commercial value during their lifetimes. Also, in those states with right-of-publicity statutes that include post-mortem protection, the length of that protection varies, from a low of 20 years after death (Virginia) to a high of 100 years (Indiana.)

Fortunately for authors, some states expressly exempt books, as well as advertisements for books, from right-of-publicity claims. Many, however, do not. And while the First Amendment has been held to protect so-called “creative or expressive works,” both factual and fictional, some courts limit First Amendment protection only to those works whose creative or expressive character is found to “predominate.”

The upshot is that authors, unlike commercial advertisers, should be safe from suit on right-of-publicity grounds where their work is predominately creative or expressive in nature. That means (subject to the photographer’s copyright) using Elvis’s image on the cover of your Elvis Presley biography is probably safe, whereas using it on your Elvis coloring book is inviting a trip to the Heartbreak Hotel.

Remember also that First Amendment protection may not extend to works that are published or to suits that are filed abroad, as the Scarlett Johansson verdict – a five-thousand Euro defamation award in France – clearly illustrates.

There are a few commonsense steps that you as an author can take to avoid being sued. In choosing your book’s subject matter, for example, you can avoid reference to living persons. For authors of true crime and historical literature, that may mean choosing events that occurred more than a century ago. If that is neither possible nor desirable, then take care in your research to avoid factual errors or embellishments. In memoir, consider changing the names, physical descriptions, or other identifying characteristics of the real people – particularly the non-celebrities – about whom you write. In fiction, be sure your characters do not closely resemble real people you know or have met. When in doubt, consider obtaining written permission from those you wish to portray.

Lastly, please bear in mind that the foregoing is merely an overview, as was yesterday’s discussion of defamation, and that a full explication of the law in this area could and does fill entire textbooks. At the end of the day, buying an hour or two with a lawyer experienced in the publishing field may be the best investment an author can make.

ORIGINALLY PUBLISHED ON RMFW.ORG (ROCKY MOUNTAIN FICTION WRITERS) ON MARCH 30, 2016