When you write about real, live people you can expose yourself to legal liability in multiple ways. And simply changing the names is no solution if the person can be identified by circumstances, appearance, or setting.
There are essentially three types of “real persons” protected by the law — living ordinary people; living public figures (celebrities) and, in some states, dead public figures (really!). Using any of these in your writing involves the intersection of defamation law, privacy law, and the right of publicity. Let’s look at each:
1. Defamation. Defamation is written or spoken injury to a living person or organization’s reputation. Libel is the written act of defamation, vs. slander, the spoken act. In general, truth IS a defense; a true statement cannot be defamatory. But what if isn’t true, or only partly true? In fiction writing, the Supreme Court interprets the First Amendment to hold a publisher liable for publishing a defamatory statement only upon a showing of negligence. Thus, a plaintiff in a defamatory-fiction lawsuit must show that the publisher of a defamatory statement knew or should have known that a “fictionalized” character was objectively identifiable as a real person. Public figures have an even higher standard: they must show that the defamatory statement was published with “actual malice.”
2. Right of Privacy. In general, privacy law consists of four distinct “torts” or legal wrongs: intrusion upon seclusion; appropriation of name or likeness; public disclosure of private facts; and publicity placing a person in a false light. Generally only public disclosure of private facts is relevant for novelists. It occurs when a writer discloses private and embarrassing facts about a living person that are not of “public concern,” because First Amendment rights protect publication of items of legitimate pubic concern, such as the details of a crime. The public’s interest in knowing about the incident outweighs the privacy factor. If, however, the matter is not one of public concern, and is one that most people would find highly offensive, there is an invasion of privacy. Matters of public record, however, are not protected by privacy law. If you write a story disclosing facts obtained from a court opinion, the matter is of public record and no lawsuit will be successful.
3. Right of Publicity. Most states now have laws that protect living celebrities, and in some states, recently dead celebrities like Elvis Presley, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray a celebrity in your novel without defaming him or his family — you need not seek the celebrities’ permission (although it’s always safer to do so). You would, however, need permission to exploit purely commercial “spin-offs” of your work, such as t-shirts or posters.
Bottom line: If you have any doubt about the use of real names in your work, consult an publishing attorney BEFORE publication.
© 2006 Daniel Steven