by Joseph Perry
When you sit down to write your book, there are some legal issues that you need to be cognizant of. These include defamation, invasion of privacy, and right of publicity (a form of privacy). There are other items to be aware of as well, but let’s focus on these three for now.
Legal Issues #1 Defamation
Defamation is a tort, which comes in two forms: libel and slander.
Libel occurs when you publish a false statement purporting to be fact that injures another’s reputation.
Slander occurs when you speak a false statement that injures another’s reputation.
For our purposes, let’s focus on libel, since that is most relevant to authors. The first question you may ask is how do you commit libel? Each state has its own definition of what counts as libel, but generally a plaintiff suing for libel must prove four things:
1) Publication
Publication must be communicated to a third person. That is, to someone other than whom the statement is about. There are many forms of publication — from a newspaper to an online forum.
2) Identification
The statement has to be “of and concerning” that particular person. The real person need only be identifiable to readers via the information provided in your book.
As an aside, please note that businesses can also be defamed. Groups of people cannot be defamed. However, if a statement about a group can reasonably be interpreted to refer to someone specific in the group, then that can potentially be defamatory.
3) Fault
The plaintiff must prove that the defendant was at least negligent in publishing the statement. However, plaintiffs who are public figures have a higher level of fault to prove. This is referred to as “actual malice.”
Actual malice means that the defendant knew the statement was false. Or they recklessly disregarded whether it was true and published the statement anyway. Public figures are broken down into two categories:
- General Purpose Public Figure (e.g., celebrities)
- Limited Purpose Public Figure – someone who has voluntarily assumed a leading role in a particular public controversy.
4) Harm
The statement causes harm to the person or entity who is the subject of the statement (e.g., damaging a person’s reputation). Some examples of statements that can cause harm are statements:
- Regarding improper sexual conduct.
- Associating someone with a disease.
- Accusing someone of illegal behavior.
- Hurting someone’s livelihood.
- Alleging racial or religious bigotry.
Defenses to libel are the truth, opinion, and parody/satire. However, just because you claim a statement is your opinion doesn’t mean that it still can’t be defamatory. For example, writing “in my opinion, he is a drug addict” can imply a false statement. That can be just as defamatory as writing “he is a drug addict.”
Legal Issues #2 Invasion of Privacy
Individuals who feel their right of privacy has been invaded may also sue you. Even if a statement is true, which can be a defense to a libel claim, that same statement can potentially invade the privacy of another. Examples of invasion of privacy are:
- Disclosure of private and embarrassing facts
- Public disclosure of private facts that are highly offensive to a reasonable person, and the disclosed facts aren’t newsworthy (basically the person had a reasonable expectation that the disclosed information s to remain private).
- False Light
- Information that is published, and the publication IDs the plaintiff, which places the plaintiff in a false light that is highly offensive to a reasonable person (e.g., calling a doctor a “quack”)
- Intruding into someone’s personal life
- Right of Publicity
Legal Issues #3 Right of Publicity
Individuals have a right of publicity. This means they can protect someone from using their name, image, or likeness without permission. This usually refers to famous people. The law also normally applies to living individuals. But some states have created a post-mortem right of publicity. This is true California and most recently in New York.
Every state has its own right of publicity laws. How may this relate to book publishing? A good example is that you can’t use a famous person’s image on your book cover. And you can’t use the image (or an endorsement) to boost sales without permission.
If you need any assistance in vetting your manuscript for libel, invasion of privacy, and right of publicity, feel free to reach me at jperry@josephperrylaw.com.
by Joseph Perry ( @PerryLiterary ) April 10, 2022
What about you, scriveners? Do you worry about legal issues? Have you been afraid someone might sue if you put the wrong thing in your book? Do you worry about using things like brand names without permission? And memoir writers, I know these legal issues are important to you. Does this post clear some things up?
About Joseph Perry
Joseph Perry is a publishing attorney and literary agent. You can find him at the Law Offices of Joseph J. Perry, P.C. And Perry Literary, Inc.
As an attorney, he counsels clients in the publishing industry. He drafts and negotiates various publishing agreements and conducts pre-publication reviews of manuscripts. He also registers copyrights and helps authors start their own publishing companies.
As an agent, he represents a variety of successful authors. These include a range of clients from bestselling cookbook authors to acadamics. Joseph obtained his Juris Doctor from St. John’s University School of Law. He earned his B.A. and M.A. from St. Bonaventure University. He’s a graduate of NYU’s Summer Publishing Institute, and is licensed to practice law in New York.
His office also sends out a regular newsletter called Write it Right. It’s full of legal news relevant to authors. I highly recommend it. And you can subscribe here: Write it Right.
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Featured image. “The Law” by Jean Fouchee
Joseph—Thank you for the super valuable info! Writers need to understand how far is too far and you’ve provided a useful road map.
You’re very welcome!
Hi Joseph,
Certainly very sobering considerations. I must say, as an epic fantasy author, if I get sued I think the suit itself will be the least of my problems… but I was wondering, in the case of disclosure of embarrassing facts, what of the hypothetical case where a person is of non-standard sexual orientation, and an author reveals that. Does that provide grounds for a suit, based just on privacy? I mean, can folks still consider that embarrassing?
Will
Hi Will. Thanks for your email. This article affects nonfiction authors much more than novelists. However, you can still be sued if the person can reasonably identify themselves. To answer your question, it would all depend on what the state law is. Right of privacy is different in each state, so I can’t definitively answer that. If the person had a reasonable expectation to keep that information private, then I would assume that would be grounds for a lawsuit. Of course, always consult an attorney before publishing anything that you may think may result in a potential lawsuit. I hope this helps.
Considering my genre, I haven’t had to worry about this. However, I wish more news outlets could be held accountable for libel.
Thanks for this valuable information, Joseph! I haven’t had concerns about those particular issues. However, I spent quite a bit of time trying to get the right to use certain song lyrics in my first novel, but it became so complicated that I finally gave up. (I think the re-write of that section of the novel ended up better anyway.)
You’re very welcome. Song lyrics can be tricky. Music publishers can be litigious. If you ever need anything with your manuscripts or contracts, don’t hesitate to reach out: jperry@josephperrylaw.com
Kay, I had that same idea–to introduce each chapter of my novel with lyrics from songs of the sixties, since that’s the time frame of the novels. I contacted Anne for advice and she told me just what you discovered and what Joseph wrote–owners of the song lyrics will almost certainly want financial compensation for the use.
I decided the book could go without the lyrics.
Thank you for these facts. I have never actually known what the real scoop is with regard to mentioning someone in a book. Good to know.
You’re very welcome. If you ever need anything, don’t hesitate to reach out: jperry@josephperrylaw.com
Hi, I have a question about copyright for Indie authors. I’m not ready to throw the switch to publish my WIP, & my bookish friends fall into two camps with their advice: 1) my next step is to mail the work to beta readers to establish issues & the quality’s of the work. (I agree with this). And
2) never send your whole wok to anyone you don’t know personally very well, as they can upload it to eg. Amazon and establish their own copyright on it without a need to even read it.
May I ask, what is your view on this, and is it possible to establish my copyright on it before sending it.
My idea on this was to upload it to Amazon to establish copyright, but set the launch price unrealistically high so that no one would read it before I’m ready for them to, then set a realistic price when I have beta reader feedback. I’m strongly advised not to do that, being told that the number of sales in the first few weeks after launch are critical to establishing a reasonable place in their algorithms.
Hi Gerry. Thanks for your email. It seems that your question goes more towards copyrighting your book. Once you save your manuscript in Microsoft Word or on your Mac, you technically hold the copyright to your manuscript. However, it doesn’t mean anything because in order to get full legal protection in the US, you have to register your copyright. This can take anywhere from a few weeks to months (and sometimes over a year if there are delays). Uploading the work to Amazon won’t mean anything because you haven’t registered your copyright. Just an FYI that this response is for informational purposes and is not to be considered legal advice. If you have any questions, contact an attorney near your or email me at jperry@josephperrylaw.com
Gerry–I have to jump in here and say that paranoia about copyright is one of the marks of a writer who’s not ready for prime time, so let it go. New writers seem to attract bad advice like magnets. Listen to Mr. Perry here and polish your book and stop worrying about copyright. There are many more important things for the newbie writer to be paranoid about 🙂 Like bad contracts, bogus publishers, and fake agents. One of the best ways to learn the real info on publishing is to read Jane Friedman’s Blog. She knows it all. https://www.janefriedman.com/blog/
And never publish anything on Amazon that is not your very best work. Amazon isn’t a toy. And it’s forever. You may come out with a new version, but the old one, especially the bad cover, will come up when anybody searches for you. Even if you unpublish, the listing is always there. And if you overprice your book, you’ve lost not only the readers who visit your page, but lots of possible readers who won’t come back.
Ok. Thanks Anne
Interesting stuff. I’m so pleased there are experts in the world who can hang onto this sort of information. Thanks heaps, both Anne & Joseph.
Thank you CS! If you have any questions, you can always email me at jperry@josephperrylaw.com
Very interesting – thank you! I am often asked by my students about using real living people – like the Queen – in their fiction. You’ve made the perils of that clearer – thank you!
Hi Melodie. Thanks for your message. I’m glad you enjoyed the article. Just an FYI that this article is for US law only so I’m not sure what the rules would be elsewhere in the world about including public figures. I do know the EU has more restrictive laws than the US. Just something to keep in mind.
Joseph, have you seen the limited series about Tommy Lee and Pamela Anderson? They lost the lawsuit when someone stole their private sex tape and released it. The lawsuit claimed since Pamela posed for Playboy, she had no right to keep private moments between her and her husband out of the public eye. Crazy! One thing should have nothing to do with the other. I admit, at the time of the scandal, I thought they did it as a publicity stunt, but if this series is “the true untold story,” as it claims, the justice system failed her on so many levels.
Hi Sue. Thanks for your comment. I’ve seen bits and pieces of it. I haven’t seen the lawsuit so I can’t comment on that, but again it all depends on what the state law is.
Thank you for this valuable information, and for making it clear. I haven’t had need of it in my work, but it’s always good to know these things!
Glad you enjoyed the article!
This is such an interesting topic!
I have written stories that include tidbits of truth, but I’ve never based an entire character on one person. It’s more like I’ll take one mannerism or the essence of one conversation and stitch them into something new. 🙂
Hi Lydia. Thanks for your comment. Yes, a common rule of thumb is to make a composite character in fiction.
No one in their comments asked directly about characters in historical fiction based on real life people. So I will, if the thread’s still open.
I’m working on a manuscript that has several fairly famous people as characters. The least famous was the son of someone famous and, in his own write, wrote two books of memoirs, from which I derive certain ideas for scenes. He frequentlly also frequently wrote nonfiction articles in magazines on a subject in which he had particular expertise (and which is relevant to parts of my story).
All my historic characters have been dead for a decade and most for several more. I’m not including any photographs or images. But I’d like to use their real names in story, which will be clearly labeled as fiction on the copyright page… and/or in the preface… (though the text is a mix of things that happened with many that did not. The story’s not defamatory except as certain things already very well known from past histories and biographies are mentioned in it.
I’m concerned mainly about any interference with the right of publicity of living descendants or estates.
Thanks,
Been there, too. I know them. Make up your own…
I thought I was on the thread about the music lyrics.
I enjoyed this helpful article and the comments.
Mollie–It’s odd that you found that post on music lyrics. It’s nearly 10 years old. But I’m writing an updated post on music lyrics for May.