When I wrote a post that provided a checklist of all the items an author needed to include in his or her completed manuscript, one item on the list that generated a few questions:
"15. Signed releases from subjects mentioned by name or likeness in your book (changing a subject's name is not enough)"
And then there's the news of Kathryn Stockett, author of The Help, being sued by Ablene Cooper, who claims the book's character "Aibileen Clark" is actually her. Ms. Cooper feels embarrassed by the image and says that Ms. Stockett promised her that she would not be included in the book. Get the full story here.
I don't know any of the stipulations in this case, but it seems like a challenging ordeal that most authors can avoid, and I want to help you do that. I'll start by defining libel, defamation law, and right of privacy. Then I'll talk about ways you can protect yourself and respect the rights of those whose name or image you would like to include in your fiction or nonfiction piece.
THE BASICS
Libel involves the publication of written defamatory material, or a defamatory statement recorded in some other permanent form (such as videotape or film). It can occur through the use of an inaccurate quotation, a miscaptioned photograph, or the omission of pertinent facts. Both fiction and nonfiction works can be defamatory.
A defamatory statement is a false statement of fact that injures or harms the reputation of a living person or an existing business. You cannot libel someone who is dead. The statement must have been published, and read or heard by someone other than the person who was defamed. Because of the First Amendment and the fact that defamation law is a state law, the tests for liability depends on whether the person suing is a public official or a celebrity or just a private person, or whether the defamatory statement concerns a matter of public or private interest.
The injured person must establish all of the following to be true:
The statement made about them was false. This is not so cut and dry and can be all about interpretation.
The statement had a defamatory meaning—injuring reputation; impeaching honesty, integrity, and sanity; or affecting a person's political office, profession, business, or ownership or interest in land or real estate
The statement clearly pointed to their person or identity by name or likeness.
The statement was published.
The statement caused damage to the person's reputation.
The person who wrote the statement is indeed at fault.
In certain circumstances the injured person must also prove economic harm—loss of wages or opportunity.
The right of privacy protects a person's peace of mind, sensibilities, and feelings. So it goes beyond what even defamation law protects, which is truth and reputation. People have a legal right to be free from unwarranted and unauthorized exposure of his or her person, or those personal affairs in which the public has no legitimate interest. In others words, we all have a right to be left alone.
A person's privacy can be violated in four ways:
Physical intrusion
Disclosure of private facts
Publicizing them in a false light
Misappropriating the use of his or her name or likeness for commercial purposes
MINIMIZING YOUR LIABILITY
Here are some ways to minimize libel claims:
Double check the accuracy of all statements about any living person, business entity, or product.
Keep detailed logs of calls and contacts made during the fact-checking process, and take outstanding notes documenting what you have done (including your failed attempts to reach people).
Obtain written releases whenever possible. (I give a lesson on how to draw one up here.)
Recognize the people who are most likely to sue: doctors, lawyers, chiropractors, accountants, public figures, religious figures, educators, business executives, even figures who are not central to the main story but are shown in an unflattering light
Watch out for red-flag statements that imply that a person committed a crime, acted irrationally or unethically, was incompetent, is financially irresponsible, acted in a heretical manner, or is involved with a disreputable organization.
Use criminal law terminology accurately.
If your story is partially or wholly fictional, but based on real people, change the names, places, and identifying information sufficiently so that no live person can be identified. And don't use the names of other real people.
Review the entire manuscript—including preface, forward, captions, and illustrations—prior to publication.
Organize your research and be certain that all factual statements can be verified by adequate evidence.
A person (author, journalist, publisher, etc.) can defend against invasion of privacy accusations by proving
They had the subject's consent.
The shared information was public information.
The shared information was newsworthy and of public interest. (Note that this defense may weaken over time, because information that was once of public concern can become private with the passage of time.)
The shared information was from court records.
The shared information was about a deceased person (which does not hold up in some states like Florida).
The shared information was not offensive, which could be arguable.
I know this was a long post, and I definitely didn't cover every detail, but I really hope it gets you headed in the right direction. Realize that all of these things have to be proven and defended and then interpreted and decided by a judge. Also know that while you think something isn't a big deal, you can be sued. It doesn't mean you will be proven guilty, but who wants to even go there? Study up on this topic if you are writing a memoir, autobiography, or nonfiction book with personal accounts in them. It will be worth your time.
I am not a lawyer, but I do recommend that you work closely with one to help you sort out your individual concerns or issues. Your editor should also have an excellent working knowledge of media law and may be able to provide you with great advice and counsel.
The definitions and terms in this post are adapted from handouts from a Media Law Seminar conducted at Charisma Media on January 19, 1999 by Allen, Dyer, Doppelt, Milbrath & Gilchrist,PA.
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