It is wise to understand what the right of publicity means when writing about real people. Suppose you want to write a book about someone famous or infamous or perhaps your not-at-all famous next-door neighbor. What are the legal risks?
In my last post, I talked about avoiding defamation and libel risks in your writing, but there is another legal issue to consider when writing about real people— the Misappropriation of the Right of Publicity. Quite a mouthful. Let’s unpackage this concept.
The Right of Publicity
Every person has the right to control the commercial use of his or her name, image, voice, and life story. We all have the right to stop someone from slapping our faces on an advertisement without consent. You do not have to be a celebrity; everyone owns this right.
The Right of Publicity is separate from copyright. Suppose you pay a photographer $1,000 for permission to use an image of Bradley Cooper on the cover of your romance novel. You would not have a copyright problem since you obtained permission from the copyright owner, but you might have a Right of Publicity problem if neither you nor the photographer has the appropriate release from the actor. Different rights, different owners.
Unlike defamation and privacy claims, the Right of Publicity continues after a person’s death. In some states, it lasts for 100 years.
Does that mean you can’t write a book about someone’s life story? Does this mean you can’t write a memoir without consent from everyone you mention?
Not at all.
So What is Considered "Commercial"?
The good news is commercial is narrowly defined when it comes to the Right of Publicity. It’s limited to the following:
- Advertising - Using a person’s likeness in an advertisement violates the Right of Publicity. The same applies to using look-alikes or sound-alikes. Bette Midler won $400,000 from Ford Motors after they used a singer to mimic Midler’s voice in an automobile commercial. For this reason, I would avoid using anyone’s image on a book cover without permission. A book cover is too close to an advertisement or merchandise.
- Merchandise - Selling tee-shirts, mugs, greeting cards, and other products with unauthorized images of recognizable people is a commercial use.
- Impersonations - Impersonating a celebrity for commercial purposes can also get you in trouble. Yes, all those Elvis impersonators either have permission from Elvis’s estate or are taking legal risks.
- Implied endorsement or relationship - Wrongfully implying that someone has endorsed your work or was involved in its production violates a number of laws. This applies to expressive work as well.
Expressive Use is Permitted
In most cases, using someone’s name, image, or life story as part of a novel, book, movie, or other “expressive” work is protected by the First Amendment, even if the expressive work is sold or displayed.
For example, the family of Billy Tyne, the ill-fated skipper played by George Clooney in The Perfect Storm, sued Time Warner Entertainment for using their family history for commercial gain without consent or compensation. They also complained that the actual events had been so fictionalized as to portray Tyne as inept. After a protracted legal battle, Tyne’s family lost. The Florida Supreme Court determined that the film was expressive speech and not “commercial.” The fact that the movie grossed more than $150 million did not change its protected status.
Generally, the courts consider the following in cases involving the Right of Publicity:
- Is the use of someone’s name, image, or life story reasonably related to the subject matter and not purely exploitative?
- Has the user added new, transformative elements to the work?
- In nonfiction, the courts also consider whether or not the subject matter is of public interest. Public interest is broadly defined to cover celebrity gossip as well as hard news.
Unfortunately, the courts are not entirely consistent. Writers have lost cases, particularly when the person was negatively portrayed. And most writers cannot afford to take a case to trial, win or lose. Simply getting sued is cost-prohibitive.
What's a Writer to Do?
When possible, get consents and releases particularly if your work is substantially based on a person’s life story. Most publishers and virtually all film producers won’t seriously consider a work based upon a life story unless the writer can provide written consents. When significant money is invested in bringing a work to life, publishers and producers are less willing to accept such risk.
Get into the practice of getting a signed release before you record or interview someone. If you are using letters, diaries, photos, or other materials created by others, get permission to use the materials. However, resist giving anyone the right to approve the final manuscript. Too often, when a person sees their words and life story in print, they try to revoke or revise their permission, leaving the writer with an unusable manuscript.
The M.E. Factor
In my experience, the risk of litigation depends more on the M.E. Factor than on any legal justification. The M.E. Factor means money times emotion. The more money involved, the more likely there will be litigation. The risk also increases if the work covers highly emotional issues such as abuse and corruption. If both money and emotion are involved, then you can almost count on expensive litigation. So, if you are writing a story with a high M.E. Factor, you should consult with experienced counsel before publishing the work.
On June 8, 2017, I released the second edition of Self-Publisher’s Legal Handbook. This updated edition covers new topics including using pen names and disclaimers and includes an expanded chapter on using real people in your work. Check out the new edition on Amazon.
(Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.)
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