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Q: Author's Liability ( Answered,   0 Comments )
Subject: Author's Liability
Category: Arts and Entertainment > Books and Literature
Asked by: estacey-ga
List Price: $200.00
Posted: 29 Apr 2006 11:22 PDT
Expires: 29 May 2006 11:22 PDT
Question ID: 723957
I am about to self-publish a book on  The original work of
the book consists of the introduction and a screenplay.  Supporting
documents follow in addendums.  The screenplay is based on a case
filed in U.S. District Court by plaintiff X against the CIA and other
public figures during Iran-Contra.  I understand that the records of
any court case are public records and thus reside in the public
domain.  The screenplay dramatizes a video deposition of plaintiff as
well as a number of additional depositions and affidavits filed in the
case and attested to by plaintiff's counsel.  I do not have the permission
of plaintiff, her attorney or any others to write about them.  My questions are:
(1) whether permission is needed when basing such a work on public domain
material; (2) whether such a work might be considered libelous; and, (3) what 
are the risks of publishing such a work?
Subject: Re: Author's Liability
Answered By: leapinglizard-ga on 30 Apr 2006 01:27 PDT
Dear estacey,

I have endeavored through my research to supply you with accurate
information, but I must warn you that this answer is no substitute for
the advice of a lawyer. I shall address your points one by one.

First, you ask whether you need permission to write a play based on
public-domain materials. Records prepared by a U.S. District Court are
indeed in the public domain, since non-secret documents made by the
federal government are automatically in the public domain. Therefore,
you do not need anyone's permission to quote or to paraphrase the court

    In general, all government records are in the public domain and
    may be freely used.

National Archives: Frequently Asked Questions

    Works created by an agency of the United States government are
    public domain at the moment of creation. Examples are: NASA
    photographs, military journalism, federal court opinions (but
    not necessarily state court opinions), congressional committee
    reports, census data, etc.

Wikipedia: Public domain: United States law

    A work of the United States Government is, as defined by
    United States Copyright Law, "a work prepared by an officer
    or employee of the United States Government as part of that
    person's official duties": the term only applies to the work
    of the federal government, not state or local governments. Such
    works are not entitled to domestic copyright under U.S. law.

Wikipedia: Work of the United States Government

It is clear that you do not incur any liability under copyright law by
using this material. However, copyright is not the only consideration
when you propose to publish a work based on a person's real life. Even if
information about the events in this person's life is freely available,
and even though federal court records of such events are in the
public domain, the person may still claim protection under the right
of publicity.

Although specific provisions vary by state, the right of publicity
essentially protects a person's right to use their name, image, and
other recognizable personality traits in advertising a commercial
product. Journalists do not have to worry about the right of
publicity, since news and opinions are fully protected by the First
Amendment. However, your right to free speech may be trumped by your
subject's right to publicity if she can show that you are using her name
or image to profit from something other than the screenplay itself.

Thus, you should carefully consider whether, in using plaintiff X as
the subject of your screenplay, you would be exploiting her celebrity to
advertise some other product. On the other hand, if your screenplay is
strictly biographical, you are assured of the right to free speech. The
First Amendment overrides any right of publicity when it comes to
biographical works, whether authorized or not.

    The Right of Publicity prevents the unauthorized commercial use
    of an individual's name, likeness, or other recognizable aspects
    of one's persona. It gives an individual the exclusive right to
    license the use of their identity for commercial promotion.

    In the United States, the Right of Publicity is largely protected
    by state common or statutory law. Only about half the states
    have distinctly recognized a Right of Publicity. Of these, many
    do not recognize a right by that name but protect it as part of
    the Right of Privacy. [...]

    In other states the Right of Publicity is protected through
    the law of unfair competition. Actions for the tort of
    misappropriation or for a wrongful attempt to "pass off" the
    product as endorsed or produced by the individual help to protect
    the right of publicity.

Cornell Law School: Legal Information Institute: Publicity

    When real people appear in a fictional work, novelists and their
    publishers must ask, Can these real people successfully sue me for
    violating their right of publicity? Simply stated, the "right of
    publicity" is the right of an individual to control the commercial
    exploitation of his or her name or likeness. While the typical
    right-of-publicity claim arises in the context of unauthorized
    product endorsements, several recent right-of-publicity cases
    involve fictionalization. Either the defendants used actual people
    as fictional characters, or they portrayed a real person in a
    work of "faction," which, like its first cousin the docudrama,
    blends fact and fiction.

    Falsely suggesting that an individual endorsed the sale of certain
    goods or services is a clear violation of that person?s right
    of publicity. As outlined below, the issue becomes murky when
    publishing an unauthorized fictional account of a real person.


    A common litigation strategy for celebrities is to allege
    right-of-publicity and libel claims in their lawsuits. While
    the right of publicity protects a person?s economic
    interest in their persona, libel laws protect people?s
    reputations. Caution! Although a fictional work may pass muster
    as far as the right of publicity is concerned, it may still
    contain libelous statements.

Publishers Marketing Association: Lloyd J. Jassin: Fictional Works
Inspired by Real Events Face Right of Publicity Challenges  [scroll down
to the second article]

    While in some states the right of publicity is only applicable to
    a celebrity or public personality there are other states where
    the right of publicity applies to any individual. However, in
    a number of states the individual's right of publicity is only
    protected when the misappropriation of the individual's identity
    has publicity value - meaning that the individual has previously
    commercially exploited his/her identity. [...]

    While the right of publicity provides the individual with
    a property right in his/her identity, the right of privacy
    protects an individual from the emotional anguish resulting
    from the publication of private facts that are embarrassing,
    intimate or portray someone in a false light that is highly
    offensive. The right of publicity must also be distinguished
    from defamation in that defamation involves the publication of
    untruthful information while right of publicity claims usually
    result from the publication of truthful information.

    The law attempts to strike a balance between an individual's right
    of publicity and free speech rights to permit specific uses of an
    individual's identity. [...] The greatest protection is provided
    for news, lesser protection is provided for entertainment and
    fiction and the least protection is available for advertising
    uses where a portrayal of a real person's identity is used to
    sell a product or service.
    Unauthorized biographies are also protected by the First
    Amendment; this is because the right of publicity cannot be used
    to stifle undesired discussion and legitimate commentary on the
    lives of public persons.

    The writing of historical novels or other fiction works that
    are based on actual people and events would not be possible 
    if an individual's right of publicity legally prohibited
    such efforts. Courts have generally held that as long as a
    fictionalized work makes it clear to the reading audience that
    the work is a one of fiction then there is no infringement of
    an individual's right of publicity. However, if the creative
    work purports to be factual and it is in fact fiction, then the
    individual's right of publicity would be infringed.
The Publishing Law Center: Lloyd L. Rich: Right of Publicity

The second part of your question concerns the possibility of libel. If
an audience can recognize the real-life plaintiff X in your screenplay,
and if it can be proven that your screenplay makes a false, damaging
statement about X with malicious intent or negligence, then the screenplay
is libelous. If any one of these conditions is unsatisfied, then there
is no libel. Even if your screenplay's main character is recognizable
as the real-life X, you are safe as long as you have made an earnest
effort to get your facts straight. Factual errors are not libelous if
they do not harm the subject's reputation or if they were committed
without malicious intent or negligence.
    Can you succeed in law?

        In a libel action, the plaintiff must prove three elements
        of the tort of libel:

            The statement has been made to a third party.

            The statement referred to the plaintiff. (This
            does not mean that the statement has to refer
            expressly to the plaintiff. A statement can
            be actionable if it is reasonably capable of
            referring to the plaintiff).
            The statement must be defamatory, which means that
            it must be a false statement to the plaintiff's
        There are three principal defences to an action for libel:
            Truth/justification. The defendant will succeed if
            they can substantially justify or prove the truth
            of the "sting" of the offending statements. Close
            analysis of the defamatory statement will avoid
            launching an ill-considered lawsuit.

            Fair Comment. This defence will succeed if it can
            be shown that the statement is comment on facts
            truly stated. It can be defeated by evidence
            of malice.

            Qualified privilege. This is a complicated
            legal defence and its application varies with
            the circumstances.

David A. Potts, Legal Counsel: What is Libel and Other Questions

    Libel is the publication of a false statement of fact that harms the
    reputation of a living individual. [...]

    While a private individual plaintiff does not have to prove that
    the defendant had "actual malice," that plaintiff, at the very
    least, must prove that the defendant was negligent in making the
    defamatory statement. The difference between "actual malice" and
    "negligence" is that actual malice is disregard for a known danger
    ?- what you know or should have known -- whereas negligence is a
    violation of a standard of what responsible people would do. The
    Supreme Court has left it to individual states to determine what
    is negligent within the libel context.

Publishers Marketing Association: Alan J. Kaufman: Defining Libel
in Fiction

    It may seem odd that a plaintiff can sue for defamation in fiction
    because defamation requires the making of false statements of
    facts about a real person. By its very nature, fiction implies
    that something is at least partially in someone's imagination
    or a creation from someone's mind.

    Libel-in-fiction plaintiffs face some tough hurdles to clear
    in advancing their claims. They must establish that the works
    of fiction were "of and concerning" or about them. Sometimes
    meeting this requirement can be tough, particularly when there
    are significant differences between a plaintiff and a character
    in an expressive work.

    Another hurdle in some cases is that the publisher or author
    must be understood as making actual statements of fact about
    the plaintiff. In cases of satire or parody, a writer may
    intentionally exaggerate or distort the truth to make a point. A
    court may determine that the expressive work is not defamatory
    because it cannot reasonably be understood as stating actual
    facts about the plaintiff.

First Amendment Center: David L. Hudson, Jr.: Libel in Fiction

Lastly, you ask about the risks of publishing your screenplay. I do
not see any possibility that you would be sued for copyright violation
as long as you limit your quotation and paraphrasing to public-domain
works. Furthermore, the chances of a right-of-publicity suit are slim
if your screenplay does not use the likeness of plaintiff X as a means
of advertising some commercial product other than the screenplay itself.

The main risk you would be running is a libel suit, especially if
you expect X to be displeased by the way she is portrayed in your
screenplay. Regardless of whether your screenplay is essentially fictional
or non-fictional, you run the risk of attracting a libel suit from X
if she can show that the screenplay damages her with a false allegation
that you inserted through malice or negligence.

In every instance where your dramatization of the deposition has a
character saying something that is not a direct quotation from the public
record, you should consider whether your screenplay is making a statement
that can be seen as referring to plaintiff X herself, and whether that
statement may be damaging to the reputation or welfare of X. In short,
ask yourself this: are you attributing words to the real-life X that
(1) she did not speak and that (2) would inspire hatred or disgust for
her? If so, you are leaving yourself open to a charge of libel.

But if your screenplay is limited to representing and commenting on facts
about X, you incur little risk by its publication. Always remember that
the First Amendment gives you the right to speak your mind about people
if you stick to the facts. Biographical works, whether authorized or not,
are protected under the right to free speech.

You may find some measure of reassurance in the following article about
the right to unauthorized biography.
    Facts, even facts about particular people, are not exclusively
    owned by anyone. That's why newspapers may write about people
    without their permission, and why biographers may create
    "unauthorized" biographies.  [...]

    The so-called "right of publicity" does give people a limited
    right to control commercial use of their names, likenesses,
    and identities. But the right doesn't extend to news reporting,
    biography, fiction, and most entertainment, or to the advertising
    of such works. Generally, the right of publicity applies only to
    commercial advertising of other products and to merchandising. So,
    NBC could make a movie about Lynch without her permission,
    but it probably couldn't sell Jessica Lynch action figures.
Slate: Does Pfc. Jessica Lynch Own the Movie Rights to Her Life?
Finally, I bring to your attention the following book. One of its two
co-authors is Lloyd J. Jassin, an expert on libel and right-of-publicity
matters, whom I quoted earlier on the subject of libel in fiction.

    Libel is more complicated. Each state (and the District of
    Columbia) has its own libel laws. And, no, fiction is not exempt,
    even if you've changed the name and hair color of an otherwise 
    identifiable person. "The best defense to libel," say the authors,
    "is verifiable truth." Included: detailed checklists -- concerning
    fair use, copyright protection, copyright permission, libel,
    and "media perils" insurance -- and sample forms for requesting
    permissions, obtaining releases, summarizing permissions, and
    writing libel disclaimers.

The Copyright Permission and Libel Handbook: Editoral Review by Jane Steinberg

It has been an interesting challenge to answer your question. If you
have any concerns about the accuracy or completeness of my research,
please advise me through a Clarification Request and give me a chance
to fully meet your needs before you rate this answer.



Search strategy:

government record public domain

public domain rights

libel fiction

libel non-fiction

right of publicity
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