'The Right of Publicity': Another Legal Trap for Bio Writers?

Thanks Bill. You've always got good legal advice.

The Litopia website looks really useful for nonfiction writers. I'm glad you linked to it!

As for Right of Publicity, it generally only applies if you are somehow taking away business from a famous person (or their estate), and it usually refers to things like putting a famous person's picture on a t-shirt. So, if a person sold t-shirts with Michael Jackson's picture on it (without getting the Jackson estate's permission), then Michael Jackson's estate could sue because the seller was competing with them on t-shirt sales, and also possibly making it appear that the estate had endorsed the t-shirt, when it had not. (And in fact, the Jackson estate has had a LOT of cease-and-desists and maybe some lawsuits over unauthorized t-shirt sales.)

In a biography, the author is "selling" his or her own ideas, not just a likeness of a famous person. Right of Publicity generally doesn't apply to biographies, unless a biography is so incredibly negative that it causes sales of the subject's products to drop. For example, my Jackson bio is actually quite sympathetic, but if someone wrote a Jackson bio that was so negative it caused some people to stop buying Jackson's music, then the estate could sue over loss of their Right of Publicity.

The radio program in the link discusses a case in which someone used J. R. R. Tolkien as a character in a piece of historical fiction. Tolkien's estate sent a cease-and-desist order claiming that this infringes on their right to use Tolkien as a character in historical fiction. Even though Tolkien's estate hadn't sued (at least not yet), the author of the historical fiction is going to court to try to get a "declarative judgment" saying that he does, indeed, have the right to use Tolkien as a character in historical fiction. The announcers on the radio show say that if the historical fiction writer loses his case, this could theoretically make it impossible to use famous deceased people as characters in historical fiction. And, then they say maybe it would even make it impossible to write unauthorized biographies.

I don't think the author will lose his case (how does his writing a historical fiction stop the Tolkien estate from selling their own historical fiction involving Tolkien? It's not directly competing, like a t-shirt would, because each fiction work has it own ideas.) Even if the author did lose his case, it would likely affect only historical fiction, not biographies, and then only in the state of Texas (where the case is being brought.)

In general, unauthorized biographies enjoy strong First Amendment protection in the US (subject to libel laws, of course.) I don't think that will change anytime soon.

dangerousbill said:

My understanding is that the Right of Publicity claims that a famous person's name has value in itself. If you write a story about them, positive or negative, you're using their name to sell the book. This would apply to most biographies, since any person worth writing a biography about will be famous to at least a small degree....

Click to expand...

The thing is, though, numerous (hundreds? maybe thousands?) of unauthorized biographies of famous people are written each year, and I've never heard of a Right of Publicity case brought solely because the subject of a biography was famous.

I understand that the radio article was saying that maybe some court someday could say that all unauthorized biographies violates the Right of Publicity, but they didn't seem to know of any cases where anything remotely like that has happened.

If the Right of Publicity worked the way you described, then I think it would apply to all all unauthorized newspaper and magazine articles about famous people as well. Yet thousands of magazines and newspapers wrote about Michael Jackson's criminal trial, even though Jackson's fame helped them sell papers (or magazines), and he didn't bring any action against any of them.

I'm also not sure what you are suggesting biographers should do. Unlike libel (where authors can protect themselves by documenting their work and not making false statements), there seems to be no way for a biographer to protect themselves from the claim that they are using their subject's name to sell their book. Are you saying that all authors who are working on an unauthorized biography should give up? Or that all publishers should pull all unauthorized biographies from the market?

dangerousbill said:

...
http://en.wikipedia.org/wiki/Right_of_publicity
For example, "...Indiana is believed to have the most far-reaching Right of Publicity statutes in the world, providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms."

Click to expand...

My interpretation of this is that I couldn't put a picture of Jackson's signature on a t-shirt and sell it, or put a drawing of a person in one of Jackson's famous poses on a t-shirt and sell it, not that I can't write a book about him. (In fact, Jackson did trademark his distinctive "up on toes in loafers and shortened pants" pose, and he also took legal action against someone who sold "Jesus Juice" wine with a picture of a Michael Jackson impersonator on the label. However, I think the action over the "Jesus Juice" wine involved endorsement, not just Jackson's fame--in other words, someone might think Jackson had endorsed the wine.)

I looked at the website you mentioned (http://rightofpublicity.com/), and saw absolutely nothing about biographies or history books.

dangerousbill said:

...Right of Publicity means using someone's name, whether in a positive or negative or neutral way, as a means of attracting sales or business. If you write a biography of Michael Jackson, the RoP folks will claim that you're using MJ's name to sell the biography, which is actually true.

Click to expand...

"Right of Publicity" generally only applies in cases of commercial speech. Biography isn't commercial speech.

Using a celebrity's name to attract business refers to claiming some sort of endorsement by or affiliation with that celebrity, not just writing about the celebrity. People write about celebrities, without their permission, every day.

Furthermore, most "Right of Publicity" laws require the plaintiff to suffer financial damages, and generally a biography (unless it's very negative) doesn't cause the subject of the biography to suffer financial damages.

dangerousbill said:

...What's new is that RoP is being expanded into areas where it hasn't been used before, like nonfiction literature.

Click to expand...

Can you give an example where a Right of Publicity case was brought concerning nonfiction literature? The radio program you linked to concerned a case of historical fiction, not biography or any kind of nonfiction. And, no court has ruled that historical fiction can infringe Right of Publicity. To the contrary, the radio program you linked to said that the author seemed "very confident" that he was not violating anyone's Right of Publicity.

I will be honest and say that I am finding this conversation very frustrating. You are claiming that new laws (or legal rulings) may make it impossible for me to publish a book that I have spent eight years on. If this is true, I should certainly be concerned about it, yet I have now spent most of the evening looking into this, and can not find a single case that backs up what you are saying.

I also don't understand why you feel this is specifically relevant to biography, since the radio article you linked to involved using a celebrity as a character in fiction. If you are trying to find out more about this, wouldn't it be better to ask on one of the fiction forums, since fiction writers on AW probably outnumber biographers 1000-to-1?

I keep a (non-professional) eye on these issues for writing reasons - and haven't noticed any lawsuits over right of publicity for non-fiction.

The lawsuits that are around appear somewhat contradictory (eg: #3 & #4)

Some interesting examples of lawsuits on the issue of 'Right of Publicity':

1. A scam-artist sued the creator of a play about his life:
Failed because New York's right of publicity only protects against advertising

2. Estate of Janis Joplin sued the creators of a play about her life:
Failed because New York's right of publicity only protects against advertising

3. Former Professional Hocky player sued over the comic book 'Spawn' because a character was named after him ... and the marketing of the book was aimed at hockey fans.
He won.

4. Singers Johnny & Edgar Autumn sued over a comic book which used characters based on them (except they were changed to half-human half-worms)
They lost - there was 'significant expressive content' apart from the singer's identities.

5. Joe Namath sued over his photograph being used on the front of Sports Illustrated
Failed: It didn't infringe even though his likeness was being used to generate sales for the magazine.

It's a fascinating area.

Mac

dangerousbill said:

Listen again. Biography is mentioned several times in the podcast and the surrounding text...

Click to expand...

I did listen to the podcast. They said that if the court ruled against the author in the one case involving historical fiction, it might have implications for biography. That's a far cry from any actual cases about biography being heard in the courts, let alone any rulings that would prevent unauthorized biographies from being written.

As a biographer, I have enough to worry about concerning the reputations of living people mentioned in my book, photograph permissions, and avoiding copyright infringement when quoting. I don't have time to worry about the First Amendment being overturned. If that happens, I'll hear about it, whether my ear is to the ground or not.

Mac, you and I were posting at the same time. Thanks for your insights. I agree that the rulings in cases 3 & 4 are rather contradictory, but since neither of them involve nonfiction, I'm not too worried that they are relevant to biography.