Biographies are grouped into two categories: biographies written with the subject’s permission and cooperation, aka authorized biographies, and biographies written without the subject’s permission and cooperation, aka known as unauthorized biographies. The former tends to suggest a puffy publicity piece. The later tends to suggest a forbidden sense of controversy, like a “kiss and tell” book written by a former employee, paramour, or confidante of the biography’s subject. In the words of Kitty Kelly, the author of the controversial biography “Oprah,” the label unauthorized biography “sounds so nefarious, kind of like breaking and entering. But that’s what biography is. It does break and enter a life.”
And with that sense of transgression or trespass, also comes a few significant legal risks that authors of unauthorized biographies might encounter — like a lawsuit for libel, invasion of privacy or misappropriation of the right of publicity. Some of the most notorious biographies garnered a heap of legal attention. Just read up on the news thicket around these examples: His Way: The Unauthorized Biography of Frank Sinatra, by Kitty Kelly; Tom Cruise: An Unauthorized Biography, by Andrew Morton; and Becoming Beyonce, by J. Randy Taraborrelli. Should an author lose such a lawsuit, the end results could be not only monetary damages, but an injunction preventing publication of the unauthorized biography or further distribution.
If you intend to write an unauthorized biography, here are the legal challenges you might encounter and what you can do to lessen your level of risk. In general, anyone can write a biography of someone without their approval as long as it is accurate and you don’t run afoul of the following legal principles: libel, invasion of privacy, misappropriation of the right of publicity, copyright infringement or breach of confidence.
We usually hear the legal term libel 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 heroine addiction. But libel can happen in biographies too.
Libel is the publication of a defamatory statement that injures a person’s reputation (as opposed to slander, which covers the verbal form of defamation). A libelous statement must be false about some statement of fact (as opposed to an opinion). 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.
To avoid a defamation claim, your best defenses would be truth, opinion, or parody/satire.
- Truth is a complete defense to a defamation claim. No false statement equals 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.” These issues often arise with biographical works. 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, like, “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.
Thankfully, for writers and publishers, the success rate for defamation suits tends to be low. Why? Because courts tend to require the author to be negligent in publishing the defamatory statement and, if the subject of the biography is a celebrity or public figure, that the author acted with malice, i.e. they had actual knowledge the statement was false and published anyway. If the subject is not well-known, the courts tend to give them more protection against libel acts, so there is no need to show negligence or malice.
In short, stick to the facts when writing an unauthorized biography. If you have support for those facts, then you’ve preserved the accuracy of the life story you’re writing about and will be on solid ground to avoid a libel cause of action.
2. The Right 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 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 facts 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, which public figures and celebrities are. Fortunately, writers have had luck in persuading courts that the disclosure of private facts is of public interest when it illuminates the human condition. But a third-party 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.
For unauthorized biographies about a celebrity or public figure, rarely are they successful on an invasion of privacy claim. They are after all public people, and with that comes the sad truth that intimate and personal facts about their lives could be revealed to the public. Just remember, if the subject of your unauthorized biography is not a celebrity or public figure the the law will give greater protection to the disclosure of intimate and personal facts of their personal lives. If this is your subject, I’d suggest getting permission from the subject before you publish private or embarrassing facts about them.
3. 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).
Normally, if you don’t have permission, you wouldn’t want to use someone’s name or likeness for commercial purposes. Just because you spilt a cocktail on Liza Minnelli at a party, you would not put her picture on the cover of your memoir to boost sales. Nor would you add Lee Child’s endorsement on your book if he hasn’t given one. But, if you written a biography about a famous person, permission is not required because the right of publicity yields to the First Amendment.
That said, don’t claim an unauthorized biography of Madonna was authorized or you’ll be asking for trouble. Not only would this be a misappropriation of the right of publicity, but it could also lead to an unfair competition claim against you and your publisher. For an unfair competition claim to stick, the author must have intended to mislead the public into believing the subject either authorized the biography or assisted in writing it.
4. Copyright Infringement
The US Copyright Office defines copyright infringement as occurring when a “copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” (United States Copyright Office. “Definitions.” copyright. gov.) Usually when copyright infringement arrises in the context of an unauthorized biography, the author has used without permission excerpts of letters or papers by or oral conversations with the subject. Just remember, if you’re using the subject’s own words, whether published or unpublished, copyright law requires permission before publication unless the words are in the public domain or fair use applies. Here are two articles about fair use if you need more information: US Copyright Office and Stanford University, or see my earlier article on Permissions.
5. Breach of Confidence
Breach of confidence is a common law tort in the United States that protects private information conveyed in confidence. This claim usually requires the information to be of a confidential nature, communicated in confidence and made public to the detriment of whoever is claiming the breach.
Proving a breach of confidence requires some breach of a duty of confidentiality or a fiduciary relationship, so the relationships of the parties is important. Often a duty of confidentiality exists between employers and employees, a patients and physicians, and banks and clients. If the subject and author of the unauthorized biography entered into a contractual relationship that prohibits the disclosure of information about the subject’s life then a breach of confidence claim could be warranted. It all depends on the scope of the contract.
If you intend to write an unauthorized biography, a little upfront organization and legal scouring will save you hassles in the long run. Before publication, consult a lawyer to vet the manuscript and provide advice on how to minimize risk. If you are publishing traditionally, use your publisher’s legal department; if self-publishing, hire your own publishing lawyer. A lawyer will explain what is acceptable and what is not. The last thing you want is for your creative work to meet an untimely death from these legal challenges.
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.