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Legal Writes:
Writing About Family Members

by Kohel M. Haver, Attorney, Kohel Haver & Associates

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Question: Here's one that people ask me at conferences all the time: "What are the legal repercussions we risk in writing about family members? In memoir, in particular, is it necessary to change names and identifying characteristics so as to avoid lawsuits from angry family members?"

The basic rule is that people are entitled to their privacy. In this country, you can expect that what you do in the privacy of your own home is your business. On the other hand, what you do in public and more so if you are a public figure is everyone's business. It is the difference between a locked diary and People magazine. Where do we draw the line? Here are the basic concepts:

Privacy claims range from the right of publicity--your right to profit from exploiting your name and reputation to defamation--damage to reputation, which includes damaging statements that are either slander (spoken) or libel (written).

Defamation claims are separated into privacy claims, which arise out of an invasion of privacy, an invasion on seclusion, disclosure of private facts, which are balanced against the freedom of speech.

The disclosure, by publication, of private facts, is the publication of information that goes beyond what is necessary to tell the facts. In privacy claims, the "publication" required to show a cause of action is deemed to be more widespread than that required for defamation claims since the essence of the claim is a public embarrassment. The facts disclosed must be sufficiently private and unrelated to the matters otherwise disclosed that the disclosure becomes offensive to the ordinary person and reputation must be damaged..

The publishing of truthful information that, within the context of the publication, casts the claimant in a "false light."

This means that, when the material is read or seen, the right of privacy claimant appears to have attributes or qualities that are detrimental and "within the context of the published event," not true even though there may be technical truth when the matter is looked at outside the distorted context. False light could be the result of editing and not just in the writing.

Trespassing on the private property of another or invading a private space in which the claimant has a reasonable expectation of privacy.

In these instances, even if the photograph for example would be validly taken were the subject not inside a private place, it may become actionable if the photographer had to trespass on private land (the subject's or a third party's) to obtain the photograph. When the paparazzi photograph a person sunbathing in a walled back yard, this is the claim.

The right of publicity is using the name or likeness of an individual, typically a celebrity but not always so, for commercial purposes.

This could be a claim if a shopper's image was used in an advertisement for a business without permission of the shopper. States like California, Tennessee and New York (entertainment centers) have more strict rules about publicity rights and the penalties for its violation.

Unlike defamation, only living individuals can sue for invasion of privacy. In some states the "right of publicity" which celebrities or individuals who have exploited their name and likeness during their lives have enjoyed have created rights to pass on to their heirs and estates. The estates of the Three Stooges, Laurel and Hardy, Charlie Chaplain, Marilyn Monroe and Jimi Hendrix are a few examples.

While rights of publicity are actively enforced the rules about defamation of public officials and others in the public arena enjoy less protection because their rights of privacy are outweighed to the balance the greater community's free speech rights. This is why the public can know so much about the private lives of politicians.

However, while these rights are protected less aggressively, if statements are made which are known to be untrue, made recklessly or with disregard for the truth or are published with "malice aforethought," the penalties for such defamation can be severe (expensive).

There are many more issues and subtleties in this complex area of the law. If you are concerned about your writing, please consult with knowledgeable and experienced counsel (editor's note: such as your publisher's legal department) before going to press. Your rights as an author are balanced against the individual's right not to be subject to your writing. If your subject family member did what they did to make them interesting in a public manner then you are more likely to be allowed to say what you will than if they kept their life private.

And remember you will have to face the family next Thanksgiving.

Disclaimer and editor's note: This article is written only for use as general legal information. Your personal situation will be different, so if you require real legal advice please consult local knowledge legal counsel.

I am posting this and other articles by Mr. Haver in the hope that they will be of interest to writers generally. They were originally published in the newsletter of SCBWI Oregon.