DEFAMATION, PRIVACY AND PUBLICITY CLAIMS
When publishers and writers think about legal exposure, the first and often the only risk that comes to mind is the risk of being sued for copyright infringement. However, works that include references to real persons may give rise to claims of defamation, invasion of privacy or infringement of the right of publicity.
Defamation, which is sometimes alternatively referred to as libel, is defined as the publication of a false statement about an individual that tends to harm the individual's reputation or hold the individual up to ridicule or contempt. In order for a statement to be defamatory, it must meet all of the elements of this definition. For example, a statement that "Joe is a thief" will not be defamatory if Joe has in fact been convicted of theft. Similarly, a statement that "Jane is a Harvard graduate" will probably not be considered defamatory even if Jane lacks a Harvard degree, since the statement is not likely to harm Jane's reputation.
Right of Privacy
The right of privacy refers to an individual's right to be left alone. An individual's right of privacy may be violated by: (1) an intrusion into an area where the individual has a reasonable expectation of privacy; (2) the publication of true but embarrassing facts about the individual that are of no legitimate interest to the public; (3) the publication of facts that, while true, create a false impression about the individual; or (4) the use of the individual's name or other identifying characteristics in advertising or for similar commercial purposes.
The basis for privacy claims is not that the information published is false, but that it is personal.Unlike actions for defamation, actions for violations of the right of privacy are based on the publication of true information. The basis for the claim is not that the information published is false, but is instead that the information is personal, and that the person to whom the information relates should be entitled to prevent it from being exposed to the general public. Most privacy claims in the publishing world involve the use of information or photos obtained without the knowledge or consent of the subject, or obtained without full disclosure as to their intended use. While invasion of privacy claims represent a significant risk for publishers and writers, there are some circumstances under which a privacy claim is not likely to be sustained. For example, writing about or publishing photos of events that occur in a public place and that are generally observable by anyone in that place does not typically constitute an invasion of privacy. Similarly, the publication of facts that are already known by or generally available to the public is not actionable as an invasion of privacy. Finally, even the publication of intimate or embarrassing facts may not be actionable if those facts relate to a public figure and are of legitimate concern to the public.
Right of Publicity
The First Amendment gives publishers and writers wide leeway to publish information about a public figure, even without that public figure's consent.The right of publicity is the right of a celebrity or other well-known individual to control the use of his or her name, likeness or other identifying characteristics for commercial purposes. (In many respects, this is the same as one of the possible grounds for a claim of invasion of privacy, except that the right of privacy generally deals with private individuals, and the right of publicity applies only to well-known persons.) Right of publicity claims rarely arise in connection with the publication of regular books, newspapers or magazines. The First Amendment gives publishers and writers wide leeway to publish information about a public figure, even without that public figure's consent. This applies even to an unauthorized book or article that competes with a similar work authorized by the public figure. Publicity claims are likely, however, if a celebrity's name or image is used in an advertisement or other similar work. For example, a professional basketball player whose name, photograph or biography appears in an infomercial-type magazine distributed by a clothing retailer would likely have a claim for the infringement of his right of publicity.
In summary, publishers and writers need to be aware of the risks associated with works that refer to real persons, and need to take appropriate steps to avoid liability. These steps may include deleting material, revising text or obtaining releases. Taking proper precautions on the front end will often eliminate headaches down the road.