The question we’re going to deal with today is from Harrison who writes:
“If I do a real quick, passing ‘name drop’ of a real life, present day famous celebrity (nothing damaging to the real person’s image –just casual mention) do I have to seek real life permission from that person first?” and “what about mentioning the publishing names of comic books (i.e. marvel, DC etc.), again it would be nothing negative, do I need permission?”
When Harrison mentioned permission I immediately thought about copyright permission. That had been the subject of my last post, and I was working on part 2 of the lecture. However, Harrison's question is more of a defamation/privacy issue.
The use of celebrities in your book in a passing name dropping sort of way doesn’t require permission. However, that being said, the way you portray the characters can get you into liability for defamation or invasion of privacy.
Defamation is defined as 'the publication of a false statement of fact about a person in writing, visually, or verbally, that is derogatory and that injures the person's reputation. In order to damage the reputation, the statement must reach at least one other person besides the subject’ (known as being published).
So first, the statement has to be published meaning someone besides the person has to hear it. Next it has to be false. When a defamatory statement is spoken, it’s called slander. When the defamatory statement is expressed visually, through words or images (including motion pictures), it's called 'libel'. In general, it is easier to prove libel because of the documented evidence as opposed to slander.
Now the United States Supreme Court in 1964, in the case of New York Times v. Sullivan, added in an additional element of proof for plaintiffs that are public figures. In this regard, there has to be proof of actual malice. Actual malice has been defined to mean that the person making the statement, which they know is false, is issuing the statement with ‘reckless disregard as to its truth.’ The burden of proof is ‘with convincing clarity’, which is a higher standard of proof that in most tort actions.
Who qualifies as a public figure? Well public figures include individuals whom, by their accomplishments or positions in life, give the public a legitimate interest in their affairs. They include politicians, sports figures, mass-media personalities, and other celebrities, i.e. Brad Pitt or President Obama. It may not necessarily involve their family members depending on the circumstances.
Private individuals can become ‘limited purpose public figures’, when they actively, voluntarily, or willfully seek the public eye, and are therefore required to meet the actual malice standard. Example: people involved in a controversy, such as the parents of JonBenet Ramsey.
Everyone who repeats the story is perpetuating the defamation. Even if the person names the original source, indicates that she doesn't believe the allegations are true, uses the customary media phrase “it is alleged,” or says the story is based on rumors, i.e. the tabloids. Usually unless it is totally outrageous and damaging, the celebrity doesn’t bother to sue. Otherwise, they’d have suits going all the time.
A book seller or distributor is not liable unless they had notice of the defamation and continues to distribute the book anyway. Federal law protects Internet service providers by making them immune from liability for defamation occurring through their services.
Now in a defamation case, once the plaintiff has set forth evidence of the elements of defamation, the burden shifts to the defendant to prove that the statement is true. Truth (or substantial truth) is an absolute defense to a defamation claim. Unauthorized biographies are perfectly legal, as long as they do not make false or defamatory statements about their subjects.
Some kinds of statements, however, are considered so universally harmful that they are deemed to be defamatory per se. Per se defamation includes statements that impugn a person’s honesty, ethics, mental health, that claim the subject has a dreaded disease, is an alcoholic or drug abuser, is sexually promiscuous or impotent, or is a criminal. In this form of defamation, as long as the statement is false, the plaintiff doesn’t even have to prove any actual harm to their reputation. On the other hand, a person with a notoriously bad reputation is less likely to prove injury even when the statement is per se defamatory.
Humor, ridicule, sarcasm, questions, alterations of quotes, and insinuations can all be defamatory if they are reasonably understood to injure a reputation. But a genuine statement of opinion is not defamatory. That distinction does not, however, give people license to state or imply a defamatory fact in the guise of an opinion. If the author asserts facts on which he bases his opinion, the opinion might be defamatory if the facts are incorrect or incomplete. The key inquiry is whether the offending statement may be verified objectively.
Defamation can occur in a work of fiction even if it does not refer to a real person by name. Although the vast majority of lawsuits deal with nonfiction works, the potential is there for fiction authors who use real events or real people in their work.
In 1991, a trial court in New York acknowledged the ‘accepted fact’ that writers base fictional characters on their own experiences and held that ‘identification alone is insufficient’ to overcome a presumption that a character in a work of fiction is imaginary. Rather, the reader must be ‘totally convinced that the book in all aspects as far as the person is concerned is not fiction at all.’ A year later another court ruled ‘the description of the fictional character must be so closely akin to the real person…that a reader of the book, knowing the real person, would have no difficulty linking the two.’
If you’re using some traits of people you know in your fictional characters, you can protect yourself by changing superficial features – their names, physical traits, professions, residences – as much as you can.
In general, novels usually include a disclaimer at the beginning, such as ‘this is a work of fiction. The people, events, and circumstances depicted in this novel are fictitious and the product of the author’s imagination, and any resemblance of any character to any actual person, where living or dead, is purely coincidental.’ Although the disclaimer means little, if you in fact defame a person in your book, it can decrease the risk or amount of certain kinds of money damages.
There are three main types of invasion of privacy which States require that the invasion must be ‘highly offensive to a reasonable person’ to invoke liability.
First, there is the ‘publication of private embarrassing facts about a celebrity that are not a legitimate concern to the public’. For example, saying someone is being treated for some medical condition, or income tax data, sexual relations, personnel letters, and family quarrels. Second, there is the use of ‘right of publicity – the unauthorized exploitation of a person’s name or likeness for advertising or commercial uses’. Third, there is the ‘placement of someone in a false light that is offensive to them’. For example, implicating them as being supportive of something they aren’t. In this instance actual malice must be shown. For example, saying that Sarah Palin supports abortion.
Most states recognize some form of all three either by statue or common law. New York however, only recognizes ‘invasion of the right of publicity’. Statute provides:
“any person whose name, portrait or picture is used within this state for advertising purposes or of the purpose of trade without…consent…may…sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly use such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful…the jury, in its discretion, may away punitive damages.”
The mere fact that by coincidence a name in a work of fiction is the same as a real person’s names is not infringement of the right of publicity. Magazines and newspapers may freely use names and photographs of people, famous or not, for newsworthy purposes and even for advertising the newsworthy qualities of the publication.
Harrison, I hope that answers your questions. If you or anyone else can think of other questions, based on this subject, feel free to comment to this thread.
As of today, the Writer’s Court will be a permanent blog of Savvy Authors appearing every Monday. So feel free to send me any questions dealing with legal issues facing writers. This includes potential plot themes, court room scenes etc and I’ll be happy to review them. Remember there is no such thing as a stupid question. As aspiring and published writers, there are still things that come up that make us go ‘is that legal?’ Well that is what this blog is for, so post away.
Savvy Authors and ‘Writer’s Court’ specify that this blog is for informational purposes only and is not intended to give legal advice or create an attorney-client relationship. If you have a specific legal question that needs addressed, you are encouraged to seek counsel from an attorney licensed in your jurisdiction.