Navigating the Legal Tightrope: Protecting Your Characters and Story with a Publicity Lawyer

Giselle Ayala Mateus, Esq.

When you’re writing a book and your characters are inspired by real-life people, it’s like walking a tightrope. You have to balance your creative spirit with the legal stuff – that’s where a publicity lawyer comes in handy. On one hand, you’re immersed in a torrent of inspiration and originality that drives you to breathe life into those characters that are bustling in your mind. You want them to be authentic, believable, and for that, you often draw on individuals you know or have observed over the years.

On the other hand, you’re aware that there are boundaries you can’t cross. Using real people as direct templates for your literary creations comes with significant considerations, both ethical and legal. You must be careful not to invade someone’s privacy or defame them, as this could lead to legal repercussions. Moreover, it’s crucial to respect the personality rights of the individuals you take inspiration from.

This delicate balancing act requires deep reflection and, often, legal counsel. However, if you handle this situation skillfully, you won’t only be protecting your characters from potential litigation, but you’ll also be fostering a more honest and respectful relationship with the world around you. Ultimately, finding that harmony between creative freedom and legal responsibility can result in a richer narrative and characters that, while not exact replicas of real people, reflect the complexity of human nature.

Now, let’s talk about the three big risks: defamation, invasion of privacy, and misappropriation of the right of publicity.

What is Defamation?

Under the legal framework of the United States, defamation is officially defined as a false statement that causes harm to another individual’s reputation. It is a civil wrong or tort that encompasses two distinct types: libel, defamation in written form such as articles, posts, or book, and slander, defamation by means of oral statements. The rules and regulations applicable to defamation are not uniform across the country; rather, they are subject to the particularities of state common law as well as statutory provisions. This means that each state has its own standards concerning what constitutes defamation and the accompanying remedies or potential damages recoverable by the affected arty.

To explain further, let’s consider defamation in a more everyday context. Suppose you make a statement about an individual and disseminate it, whether in writing or verbally, which portrays them falsely in a negative light—this could be seriously detrimental to their personal or professional standing. For instance, if you assert, without any corroborative evidence, that someone has engaged in theft, you are most likely committing defamation, and such behavior is unlawful. This is because making unsubstantiated declarations of criminality about another person can lead to a wide range of adverse consequences  affecting all aspects of their life, from their careers and social relationships to their standing within the community.

Even if your book is fictional, if the characters or events are closely based on real people and could make readers think badly of those people, they might claim you’ve defamed them.

Here’s what you should consider, at least:

 1. Change Details: Make sure to change enough details about the real person so they cannot be easily recognized in your story.

2. Disclaimer: Include a disclaimer in your book that clearly states the story and characters are fictional.

3. Avoid Real Events: Try not to use actual events from the real person’s life as key parts of your plot.

4. Get Permission: If possible, get written permission from the person who inspired the character.

Remember, even with these steps, there’s still a small risk. It’s always a good idea to have a publicity lawyer look at your work if you’re worried about defamation.

Invasion of privacy

Under the complex framework of US law, individual privacy rights are stringently protected through various legal doctrines. Among these, there are four fundamental types of invasions that are particularly significant.

Intrusion on seclusion

The first type of invasion pertains to the unwanted and unwarranted intrusion into someone’s private affairs or seclusion. This can occur when a person crosses the boundary of what is considered acceptable and invades another’s life without consent, perhaps by eavesdropping or entering their private property uninvited.

Disclosure of Private Facts

Secondly, we have the public disclosure of private facts. Invasion of privacy happens, in this instance, when you spill secrets that someone wishes to keep secret and undisclosed. It is not merely the act of sharing information that constitutes this violation; rather, it is the dissemination of facts that are not of public concern and which the subject intended to keep away from the public gaze that causes the invasion of privacy.

False Light

Next, we encounter false light. This occurs when someone is portrayed in an inaccurate way that is misleading and offensive, possibly damaging their reputation or standing in the community. Similar to defamation, false light deals with the harm that arises from wrongful portrayal.

Right of Publicity Misappropriation

Finally we confront misappropriation of the right of publicity. This infraction consists on engaging in the unauthorized use of someone’s name, likeness, image, or even personality traits to make money without their express consent or agreement. This is a significant issue in today’s media-driven society, where the commercial value of an individual’s identity can often be substantial. Celebrities and public figures frequently litigate this infringement to control and protect the commercial use of their persona.

Now, how do you know if you should consult a publicity lawyer? In general, you should always counsel a legal practitioner. That said, if your narrative is positive or neutral, you’re typically on safe ground. There’s little reason to seek a publicity lawyer if all you’re doing is celebrating someone’s achievements.

Now, imagine you’re crafting a story about your neighbor’s dazzling, kaleidoscopic garden. If your remarks are flattering or simply observational, it’s unlikely you’ll require legal counsel from a publicity lawyer. However, if your writing ventures into provocative territory and you sense potential legal repercussions, it’s prudent to consider, “I might need a publicity lawyer.” In such cases, securing legal advice isn’t just wise—it’s essential to navigate the complexities of privacy law and safeguard your interests.

Misappropriation of Right of Publicity

Misappropriation of right of publicity is also an independent cause of action and worth considering with you book’s story was inspired by a real person, somehow famous or popular. When you’re writing a fictional story, it’s important to be careful about how you use characters that might be based on real people. The right of publicity is a legal concept that gives individuals control over the commercial use of their identity, like their name, image, or personality traits.

If you create a character in your story that is clearly inspired by a real person, and you use that character in a way that could make money—like selling books, making movies, or creating merchandise—you could be misappropriating that person’s right of publicity. This means you’re using their likeness without permission to benefit financially.

Even if you don’t mention the real person’s name, if readers can easily tell who you’re talking about because of distinctive traits, catchphrases, or life events you’ve included, that person or their family might have a legal claim against you.

 To avoid this, you can:

  • Make sure your characters are truly fictional: Don’t base them too closely on any real person.

  • Change details: If your character is inspired by a real person, change enough details so they’re not recognizable.

  • Get permission: If you want to use a real person’s likeness, get their permission in writing.

Remember, it’s always better to be safe and respectful when it comes to using someone else’s identity in your work.

So, remember these golden rules: tell the truth, respect privacy, and don’t use someone’s identity to make a buck without their permission, and if yo are ever in doubt, what do you do? That’s right, you might want to consult a publicity lawyer. In the end, it’s all about being fair and respectful while telling your story. Keep your facts straight, your intentions good, and maybe keep a publicity lawyer on speed dial, just in case. Happy writing!

Are you in need of expert legal advice to navigate the complex world of publicity and privacy laws?

 

Look no further than Giselle Ayala, a seasoned publicity lawyer who can help protect your rights and ensure that you stay on the right side of the law. With her extensive experience and dedication to her clients, Giselle Ayala is the go-to professional for all your publicity legal needs. Don’t wait until it’s too late – contact Giselle Ayala today and safeguard your reputation and interests.

 
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