Joseph Perry, Esq.
3 Legal Issues to Avoid When Writing Your Memoir
Memoirs are unique. They are the most personal and authentic of nonfiction books, in my opinion, but for that very same reason, memoirs can be legally risky. In particular, memoirists can potentially be on the hook for libel and right of privacy/publicity violations if they delve into personal and intimate details that may paint individuals in an unflattering light. So what needs to happen to arise to a libel or right of privacy claim.
Libel is the written form of defamation. Each state has its own libel laws. To libel someone, you must:
1) write a false statement purporting to be fact;
2) the statement must be communicated to a third person;
3) the statement must be of and concerning the individual
4) there must be fault by the author of the statement amounting to at least negligence;
5) there must be damages, or some harm caused to the reputation of the person or entity who is the subject of the libelous statement(s).
So what does that mean? First, the statement must purport to be fact. Opinions are not defamatory, but be careful. Just by putting the words "I think" at the beginning of a sentence, it can sometimes turn the statement into a false statement of fact. For example, if you write "I think Joe is an alcoholic," that may imply that Joe is an alcoholic and may be defamatory.
Second, the statement has to be communicated to a third person. This is easily done by publishing your book and is distributed to readers throughout the country.
Third, the statement must be of and concerning that individual. The person proving libel must prove the statement was actually about him or her. If it's vague that the statement is about them, it won't be defamatory. This can also come into play when a passage defames a group. If the group is big enough, it may be difficult to pinpoint who the statement is about.
Fourth, there must be at least some fault by writer. If the statement you've written is about a private individual, then that person only needs to prove that you were negligent (i.e., you didn't abide by a duty of care) in writing the statement. However, if your statement is a about a public official or public figure, that person has to prove actual malice (that is, you disregarded the truth of the statement and published it anyway).
Fifth, the statement must actually cause harm to the reputation of the individual. Examples of this include ruining someone's business reputation, personal humiliation, and shame.
Right of Privacy
Right of privacy claims are also state-based claims. Each state will have its own elements as to what makes up a right of privacy claims. Generally, there are four types of right of privacy actions.
1) Public disclosure of embarrassing private facts
2) Portraying someone in a false light
3) Intrusion into seclusion
4) Right of publicity
The main difference between right of privacy and libel is that for some statements you can still be sued for right of privacy if what you say is true (that is, if you publicly disclose embarrassing private facts). Examples may include facts about your health, sexual activity, and the finances of an individual.
False light claims arise when someone writes a false statement about someone or depicts that person in a false manner. The statement can still be true but be misleading.
Intrusion into Seclusion
Intrusion into seclusion is probably what you think when you hear the words "right of privacy." It occurs when a person's affairs are interfered with (e.g., someone takes a picture of you in your home without your consent).
Right of Publicity
Using someone's name, image, and likeness without their permission is a right of publicity violation. Most claims have to do with celebrities, but you do not need to be a celebrity in certain states to have a claim. There are first amendment claims that may help you in terms of including people in your book, but certain uses may cause you to get permission. When in doubt, ask people to sign release forms.
If you have any questions, contact 914-775-8774 or email me at email@example.com.