Defamation, Right of Privacy and Right of Publicity in Writing
I’ve recently been asked, “Can I write about a real person in my book?” There are several ways this question pops up: Could you have your fictional character meet a celebrity? Can you use real names in a memoir? Will you get in trouble if you write someone’s biography without permission? These are all excellent questions, and I hope to provide some guidance on the subject.
While writing about real people is not illegal per se, there are some land mines to keep an eye out for in general.
Defamation (a.k.a. libel) is the one that springs to mind first for most authors. Defamation means that you make a false statement – in other words, you lied about that person, and that damaged their reputation. Truth is an absolute defense in defamation cases, so if you can prove that what you wrote was truthful, you are golden. If you can’t, you’re probably better off trying to hide the identity of the person so they don’t realize you’re badmouthing them.
The right of privacy is another one that can cause problems. There are several ways that you can violate a person’s right to privacy – you could publicize very private and embarrassing facts, you can make offensive, false statements (similar to defamation), and you can commercialize on someone else’s identity.
That last one was the springboard for the right of publicity. They are like two sides of a coin – appropriation (using someone’s identity for your advantage) involves thrusting someone into the public eye without their consent. The right of publicity doesn’t mind the attention but says that the person has a right to decide where and how to interact with the public. While right of publicity is not exclusive to celebrities, they make up the majority of people who sue for it.
Have I depressed you yet? Here’s something to brighten your mood – in California, books are specifically excluded from right of publicity claims, so you can include celebrities in your books (as long as you keep in mind that they could sue you for one of the other claims I’ve talked about). The only time you could get in trouble for right of publicity in writing is if you’re trying to use the celebrity’s name or picture to sell books, or you create a false impression that the celebrity endorses your book.
For right of privacy claims, written consent will clear the way for most people. If you can’t get written consent, you want to make sure there’s nothing the person would object to, or at least that they won’t recognize themselves in your writing.
Last but certainly not least, defamation and right of privacy don’t survive a person’s death. If the person you want to talk about is deceased, then defamation and right of privacy won’t be an issue.
Obviously this article only scratches the surface of these issues – entire books have been written about each one. If you would like to learn more about any of these legal land mines, or if you would like to make sure you’re not about to step on one, please feel free to contact me at kaway@kawaylaw.com
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.