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.
Other Limitations on Using Real People
Are you are subject to other restrictions? As an attorney, I cannot use any confidential information about a client, even if I change the name and mask the identity. Same for therapists, doctors, accountants, and other professionals. If you are a trustee, partner, or have a fiduciary relationship with a third party or a minor, you have a duty not to bring harm onto the other party by disclosing private information.
Have you signed a confidentiality agreement? Many public figures require their staff to sign tough confidentiality agreements.
If you were a party to a dispute settled out of court (including a divorce settlement), your settlement agreement probably contains nondisclosure and non-disparagement clauses. You could unwind the settlement by blabbing.
At your job, you may learn valuable trade secrets such as formulas, marketing plans, and manufacturing details. If you disclose that trade secrets, even if true, you could find yourself out of work and facing a lawsuit.
How to Limit Your Risks
Considering the hundreds of thousands of books published each year, there are relatively few lawsuits against authors. Claims are difficult to prove. Most targets don’t sue because they do not want to call attention to a matter best forgotten. To reduce your risk of being one of the unlikely few, authors should consider the following:
- Don’t say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. Instead, stick to verifiable facts and your personal, emotional responses. Remember the old adage, show, don’t tell. Let your readers come to their own conclusions.
- Be cautious about saying something like “don’t do business with xyz company.” Tell the story of your experience with the company. Your readers will get the message.
- If you base a fictional character on a living person, mask identifying features. Change physical details and life histories so the character is not recognizable. The more villainous the character, the more changes you should make. The same is true if you are using a company as an evil character, such as a polluter.
- Use parody and satire. If what you describe could never be true, then it is not a statement of fact. That’s how The Onion and other satire sites get away with headlines such as Brad Pitt Decides To Grow Out Forehead Hair.
- Keep in mind that memories are subjective and tend to evolve over time. Verify and expand your memory by conducting research and interviewing others. Retain records to support your statements. When speculating, be clear you are taking a guess. State your opinions as opinions, not as facts.
- Get written consent and a release wherever possible.
- Think about the small players. In disclosing wrongdoing, you may harm some innocent bystanders.
- Consider how important the private information is to your story. Judges and juries can be moralistic and will punish someone who discloses confidential information gratuitously or maliciously.
- Rely on publicly-disclosed information, such as court documents and news reports wherever possible. Court filings are a rich source of juicy information.
- If you are writing a “getting even” book (to get back at a parent, spouse, boss, or someone else who made your life miserable), write the manuscript with passion, then put it aside for months, or even years. Then will you be better able to mask your character and make it universal. Better yet, wait until your target has passed away.
- Respect privacy. In today’s crowded world, privacy is more valuable than ever. How important to your story is that private fact?
- Don’t assume no one will go after you because you have no money. If you peeve someone enough, you may awake one morning to a process server banging on your door.
- Don’t use anyone’s name or image for advertising purposes without express permission unless that person has been dead for 100 years.
- Add disclaimers.
- If accused of a defamatory statement, consider publishing a retraction.
- Engage an attorney to review your manuscript.
- Always reach for the truth when writing—it’s the best defense.
This post originally appeared on the IndieBRAG blog.
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