When it comes to writing memoirs and autobiographies, writers are often leery of being sued. It is a valid concern. Writing about facts and events of our own lives, whether a chronology of an entire life or one specific aspect of it, inevitably requires writing about the private lives of others intertwined in those stories. While the First Amendment allows us great latitude in telling our personal stories, doing so still brings with it significant legal risks a writer must address if they want to avoid litigation.
There are four areas of law writers should be cognizant of when writing memoirs and autobiographies – defamation, invasion of privacy, the right of publicity, and fraud. Do not let these legal terms scare you. With a little understanding and guidance, you can easily navigate these legal landmines and hopefully sidestep a lawsuit. |
Before discussing these legal issues, two things are worth mentioning.
- Write your truth first, then edit later
- Write your first draft without worrying about the legal risks. Use the real names. Do not change the facts or fictionalize any characters. You can mold the manuscript in subsequent drafts to avoid any legal potholes. If you write your truth first knowing you can make changes later, you will have more creative freedom and not be restricted by concerns of litigation.
- Personal risks
- Because you most likely will write about family, lovers, friends, business partners, and other relationships, be aware of what you stand to lose by writing your story and publishing it. Some things may need to be sacrificed for your story to come forward but you should be clear about what the risks are and if you are ready to take them.
Eventually though, once you have the first draft, you need to be cognizant of legal issues like defamation, invasion of privacy, and the right of publicity regarding others involved in your story, as well as fraud. If you need a tutorial on these legal issues, read on. If not, skip to the section below about how to avoid being sued.
We usually hear the legal term “defamation” when a gossip rag damages a celebrity’s reputation by printing false rumors of a derogatory nature like a sexual escapade, or an ex-paramour’s heroin addiction. But defamation in literary work happens too. Thankfully, for writers and publishers, success rates for defamation suits are low. Even so, no one wants to spend time and resources in court. Where is the fun in that?
Defamation covers two torts: libel and slander. Libel is the publication of a false statement that injures a person’s reputation (as opposed to slander, which covers the verbal form of defamation). A libelous statement must be false and factual. The defamed person must be living and need not be identified by name. The real person need only be identifiable to readers via the information provided. Business entities and small identifiable groups (like a lacrosse team) can be defamed too.
If you find yourself subject to a claim of defamation, your best defenses would be truth, opinion, or parody/satire.
- Truth is a complete defense to a defamation claim. No false statement = No libelous statement. Even if minor inconsequential facts are incorrect, libel does not exist if the overall statement is true.
- Opinions are protected (because opinions are neither true or false). This defense, however, can be tricky to navigate. Just because you say it is your opinion will not keep the statement from being defamatory. Merely implying a false statement can be enough. “In my opinion, she is an alcoholic” is just as defamatory as “she is an alcoholic.” The best way to utilize this defense is for the writer to provide in their work the underlying facts on which the opinion is based. For example, “She was convicted of a DUI, and then went to rehab.”
- Parody and satire genres exaggerate material for comic effect, which is not considered to be true or a statement of fact.
These are defenses, which means you use them after you have been sued. Instead of relying on a defense, do your best to avoid a libel claim before you publish (see below).
Invasion of Privacy
People have the right to be left alone. Privacy is invaded when private facts not in the public’s interest are publicly disclosed. While the truth can deflect a defamation claim, often the truth when disclosed can be the basis for an invasion of privacy claim.
Usually, invasion of privacy occurs when:
- Private facts that are not of public interest are disclosed;
- There has been an intrusion into a person’s private life; and
- Someone is portrayed or misrepresented in a false light, i.e. highly offensive to a reasonable person.
The injured person must be living (unless you want to dig up the casket and that is an invasion of another kind). The disclosure of private facts must cause harm to the person’s reputation (personal or professional). Mere embarrassment usually is not enough.
The injured person must have a reasonable expectation the disclosed fact was to remain private. So, if the fact or event disclosed occurred in a public setting, then most likely there is no expectation of privacy.
Often the most crucial point in a right to privacy claim is whether the disclosure was of public interest. Fortunately, writers have been lucky persuading courts that the disclosure of private facts is of public interest when it illuminates the human condition. Likewise, a memoirist is given leniency for disclosure of facts in her own story, even though it might be private facts inextricably intertwined with a third-party. But a writer telling someone else’s story about a child born from an incestuous relationship that was never made public and the crime never reported has been held to violate the right of privacy. The facts were newsworthy; yet revealing the identity of the victim was not a matter of public interest.
The Right of Publicity
Misappropriation of the right of publicity is using someone’s name, likeness, or identifying characteristics for advertising, merchandising, endorsements, promotional, or commercial purposes without permission. The law normally applies to the living, although some states will extend the right of publicity posthumously. And it only applies to a person who makes money from who they are (i.e. famous people).
If you do not have permission, do not use someone’s name or likeness for commercial purposes. Just because you spilled a cocktail on Liza Minnelli at a party does not mean you can use her picture on the cover of your memoir to boost sales. But permission is not required if write a biography, screenplay, or news article about a famous person because the right of publicity yields to the First Amendment.
Likewise, you would not add Lee Child’s endorsement on your book if he has not given one. Nor would you claim an unauthorized biography of Madonna was authorized. Use common sense – no taking advantage of their reputation for commercial purposes without permission.
And of course, a real person, famous or not, can make cameo appearances if you stick to the facts that are in the public domain (e.g. interviews, reputable news articles, and court transcripts).
Consumer Fraud and Breach of Warranty
Fake memoirs and fraudulent autobiographies happen. Just check out this long list on Wikipedia if you need examples. A writer who lies about stories or events which are later discovered to be false runs a high risk of being sued, usually in a class action lawsuit by readers claiming to have been deceived and possibly by the publisher for breach of warranty in the publishing agreement, as well as suffering public disgrace.
While most cases of fraud due to authors falsify accounts of their own lives are settled or withdrawn before ever making it to court, no one needs that sort of hassle. Granted, most memoirs and autobiographies have numerous falsehoods and inaccuracies. Memory is a sketchy thing sometimes. But willfully lying about one’s life has legal consequences. Avoid fabrication. You do not want to endure the litigation nightmare that James Frey did, nor do you want to subject your publisher to such liability either (or be on the hook for your publisher’s damages and legal fees because you breached your promise to tell the truth).
How to Avoid Being Sued For Defamation, Invasion of Privacy, Misappropriation of the Right of Publicity, and Fraud
Now that you have an understanding of the laws you could run afoul when writing your memoir or autobiography, a bit of upfront organization and legal scouring will save you hassles in the long run. The last thing you want is for your creative work to meet an untimely death in court. Here are a few things you can do to help avoid litigation.
- List the people who are living or dead, who are famous, public, or private individuals. Decide if your characterizations of these people, or the story events involving these people, are negative or favorable.
- If favorable, your chances of being sued are fewer. Remember, your idea of what is considered favorable may differ from what others consider to be favorable.
- If negative, then these will need closer legal inspection.
- If the person is dead, you are in luck when it comes to defamation or invasion of privacy because those legal claims stop at the grave (feel free to spread as many lies or reveal as many secrets as you like). While the dead cannot suffer reputational harm, however, the right of publicity may extend to one’s heirs depending on the state. Be careful not to defame someone related to the dead – the wife of the dead man may bring her own defamation suit.
- If the person is a public figure or celebrity, they usually have trouble proving invasion of privacy because their lives are of public interest and there is less expectation of privacy. That is life in the spotlight. For example, Elizabeth Taylor failed to stop an unauthorized television biography of her life because the court held the biography was of interest to the public.
- List the facts and scenes that might be objectionable. Are the facts or events you are writing about private, public, or newsworthy? Again, what you believe to be public or newsworthy may be different from what others believe to be public or newsworthy.
- Public facts are fair game for disclosure.
- Private facts demand closer scrutiny.
- Are the facts or events newsworthy? Again, public interest tends to yield to the First Amendment, meaning courts typically give latitude to stories that are newsworthy. However, a person still might sue if they can prove they have been defamed. If the event or facts are not newsworthy, consider fictionalizing the true story (see below).
- List the facts that need verification, the people who need to be interviewed, the people who must sign permissions and releases.
- Negotiating release or permission agreements involves competing interests between you and another person in your story. The biggest item you are hoping to secure is a release from being sued for defamation, invasion of privacy, or misappropriation of the right of publicity. Depending on your project, you may want the subject’s or a third party’s cooperation. You may want access to personal materials, like photos or journals. Some projects demand the need for exclusive rights to the material so others cannot produce or create competing literary works. Other projects require more flexibility in how the real person is portrayed and the story embellished and dramatized.
- Some people in your story will never sign a release, but there are options.
- Fictionalize the person or event (see below).
- Stick to the truth (which may be different from their truth). Use facts that are in the public domain.
- Avoid disclosure of facts or events the person expected to remain private, and were not in the public’s interest (he was so drunk he zipped up his privates…pun intended). If the action took place in public, then your disclosure of the fact or event is fair game (she smoked crystal meth at a concert).
- Show the person the sections of your manuscript you think they might find objectionable. They could give their consent and suggest changes. They could also request you change their name. Obviously, you cannot ask an abuser who perpetuated a crime against you for permission. But this process might work for those people in your story whom with you have a decent relationship.
- If you feel you are on solid legal ground, proceed without a release but realize you may be sued.
- Keep records of your research. Record interviews. Document your fact-finding. Keep copies for proof that you have not made negligently false statements. Tape recordings are the best when interviewing. Next to that, contemporaneous notes are helpful (all of which should be dated, signed, and the place and source identified).
- If you think readers will recognize the real person in your story who might have a legal claim, you can reduce your risk by layering in as many fictional details as possible to distance the character from the real person. Change the person’s sex, ethnicity, name, residence, age, physical traits, odd quirks, personal background, familial connections, profession, friends, time, setting, etc. The problem arises when the writer does not disguise enough so the connection between character and the real person is easily linked, or they wrongly assume the real person will not consider their statements defamatory or disclosures an invasion of privacy. Just be aware that changes will not always shield a writer from liability.
- Use common sense. As tempting as it might be, do not use your novel as revenge. That is asking for legal trouble.
- Use a disclaimer or a nicely written acknowledgment. But remember, disclaimers are not full proof. In 2007, Augustine Burroughs settled a defamation suit filed by a family depicted in his memoir Running With Scissors. He agreed to call his literary work a book instead of a memoir, and acknowledge that certain real families portrayed in his book might have memories of the events that differ from his. While disclaimers that acknowledge certain names and places have been changed can help, it may not prevent readers from identifying the real person who is the subject of the legal claims listed above, and often will not shield a writer from liability.
- Retractions can be useful under the right circumstances, but do not rely on these. Some states have retraction statutes, but these generally apply to newspapers, radio stations, and magazines. There are a few cases that involve online defamatory statements and the use of retractions to minimize damages. Retraction statutes do not generally apply to book publishers and could, if used, be considered an admission that the statement was false and defamatory.
- Avoid fabrication. Enough said.
- Purchase media liability insurance to protect you against damages and litigation fees should you be sued. It is not cheap ($1000-$2000) but it may be worth the peace of mind and better sleep once your manuscript has published.
Whatever the subject matter, writing about facts and events involving others brings with it significant legal risks that must be analyzed for legal clearance and any necessary permissions (regardless of whether the literary work is a biography, memoir, or fictionalized true story from the writer’s own life or someone else’s). The writer and/or publisher who fail to do a legal screen may find themselves the recipients of a cease-and-desist letter, or worse, defendants in a lawsuit. Once you have the first draft of your memoir or autobiography, have the manuscript vetted by a lawyer, either your publisher’s legal team or if you are self-publishing, your own lawyer. A lawyer can review the manuscript for any legal pitfalls, advise how to reduce those risks, and draft any necessary permission agreements in order to safely publish the manuscript.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.