A Study in Scarlett (Or: Can I Be Sued For Writing That?) Part 2 of 2 … By: Chuck Greaves

2016_Chuck GreavesYesterday we discussed defamation. Today we'll cover two related concepts that can also expose a writer to liability, as well as some defensive strategies that writers may wish to adopt.

"Right to Privacy" simply refers to the right of an individual to be left alone in her personal affairs. As with defamation, privacy laws vary from state to state, but with common elements in most states. Generally speaking, an aggrieved plaintiff must prove (a) that publicity was given to matters concerning her private life, (b) that the matters made public would be highly offensive to a reasonable person of ordinary sensibilities, and (c) that the matters publicized were neither newsworthy nor concern any legitimate public interest.

This last element of the tort – newsworthiness or public interest – effectively precludes invasion-of-privacy suits by celebrities or other public figures. But authors of biography, true-crime, and other forms of nonfiction often write about real people who are not celebrities, and even novelists will sometimes base their characters on people they know. Care must be taken in these cases to avoid invading the privacy rights of your subjects, whose identities are either explicitly stated or can be gleaned from the context of the writing.

Memoirists who publicize private and embarrassing information about their (non-celebrity) friends or family run an especially high risk of being sued for invasion of privacy, and this is doubly true of self-published authors who cannot cite a traditional publisher’s support for her work as evidence of its inherent “public interest.”

As is the case with defamation, only a living person can sue for invasion of privacy. Unlike defamation, however, the truth of the statement in question is no defense against potential liability.

"Right of Publicity" refers to the commercial value of an individual’s name, likeness, or identity. If you’re planning to sell t-shirts with Justin Bieber’s unlicensed image, for example, or to use his name to advertise your other products or services, you can expect to be sued.

Unlike defamation or the right to privacy, which are considered “personal” rights, an individual’s right of publicity is a property right that exists during her lifetime and that, in many jurisdictions, survives her death and may be enforced by her estate. (So much for your fallback plan to sell Elvis Presley t-shirts.)

But can you put Justin or Elvis on the cover of your latest book? The answer is . . . it depends.

Unfortunately for authors whose works are, of necessity, published in all fifty states, the laws governing right-of-publicity actions are a veritable hodgepodge of inconsistent state laws. Roughly half the states, for example, have statutes that expressly govern right-of-publicity claims, while half still rely on common law principles that prohibit unfair competition or preclude the misappropriation of a person’s name or likeness on privacy grounds. Moreover, in those states that have enacted legislation, the laws vary widely, with some affording post-mortem protection to all citizens and others protecting only those persons whose name or likeness had demonstrable commercial value during their lifetimes. Also, in those states with right-of-publicity statutes that include post-mortem protection, the length of that protection varies, from a low of 20 years after death (Virginia) to a high of 100 years (Indiana.)

Fortunately for authors, some states expressly exempt books, as well as advertisements for books, from right-of-publicity claims. Many, however, do not. And while the First Amendment has been held to protect so-called “creative or expressive works,” both factual and fictional, some courts limit First Amendment protection only to those works whose creative or expressive character is found to “predominate.”

The upshot is that authors, unlike commercial advertisers, should be safe from suit on right-of-publicity grounds where their work is predominately creative or expressive in nature. That means (subject to the photographer’s copyright) using Elvis’s image on the cover of your Elvis Presley biography is probably safe, whereas using it on your Elvis coloring book is inviting a trip to the Heartbreak Hotel.

Remember also that First Amendment protection may not extend to works that are published or to suits that are filed abroad, as the Scarlett Johansson verdict – a five-thousand Euro defamation award in France – clearly illustrates.

There are a few commonsense steps that you as an author can take to avoid being sued. In choosing your book's subject matter, for example, you can avoid reference to living persons. For authors of true crime and historical literature, that may mean choosing events that occurred more than a century ago. If that is neither possible nor desirable, then take care in your research to avoid factual errors or embellishments. In memoir, consider changing the names, physical descriptions, or other identifying characteristics of the real people – particularly the non-celebrities – about whom you write. In fiction, be sure your characters do not closely resemble real people you know or have met. When in doubt, consider obtaining written permission from those you wish to portray.

Lastly, please bear in mind that the foregoing is merely an overview, as was yesterday’s discussion of defamation, and that a full explication of the law in this area could and does fill entire textbooks. At the end of the day, buying an hour or two with a lawyer experienced in the publishing field may be the best investment an author can make.


A retired trial lawyer, Chuck Greaves is the author of five novels, most recently Tom & Lucky and George & Cokey Flo (Bloomsbury) a Wall Street Journal "Best Books of 2015" selection. You can visit him at his website.

A Study in Scarlett (Or: Can I Be Sued For Writing That?) Part 1 of 2 . . . By Chuck Greaves

2016_Chuck GreavesYou’ve heard the horror stories. Scarlett Johansson sues acclaimed French author Grégoire Delacourt for invoking her name in describing a fictional character. A jury awards Jesse Ventura $1.8 million against the estate of American Sniper author Chris Kyle over Kyle’s account of an alleged barroom brawl. Novelist Haywood Smith suffers a $100,000 jury verdict for her pseudonymous description of a friend in her bestselling The Red Hat Club. Augusten Burroughs settles with the family depicted in his bestselling Running With Scissors and agrees to rewrite the book’s Acknowledgments and Author’s Note.

As these and other cases illustrate, there are risks inherent in writing about real people. And since most publishing contracts require the author to indemnify the publisher in the event suits like these are filed, those risks fall squarely on the writer’s shoulders. Fortunately, lawsuits over literary depictions are rare, and adverse outcomes rarer still. Authors should nonetheless familiarize themselves with three legal pitfalls that, if ignored, could expose them to substantial attorneys’ fees and costs and, in some cases, to liability for monetary damages.

Today we’ll discuss defamation, the first and most common, and therefore the most dangerous, of these pitfalls:

Defamation refers to false statements of fact that result in reputational injury to another. Spoken defamation is called “slander,” while written defamation – the kind we’re concerned about – is called “libel.” While the laws governing libel vary from state to state, all have certain elements in common. In order to win a judgment for libel, an aggrieved plaintiff – that's the person bringing suit – must usually prove that a statement of fact (a) was published, (b) was false, (c) was not privileged, and (d) caused injury to the plaintiff’s reputation.

Note that libel laws pertain only to statements of fact, and not to opinions. Thus, the statement “I think Jones is a jerk” should not be actionable, whereas the statement “Jones is a child pornographer” would likely be actionable, depending on Jones’s ability to prove the other elements of a libel claim. Note also that simply couching a statement as opinion – i.e., “I think Jones is a child pornographer” – will not necessarily insulate its author from liability where, as in this example, the statement implies the existence of supporting facts.

“Publication” in the context of libel does not mean that the false statement was actually printed and sold; it simply means that the statement was communicated to a third person who understood it. Thus, a libelous falsehood that appears in the first draft of a manuscript that the author shares only with her agent, or with a few beta readers, has been “published” for purposes of the libel laws.

Because “falsity” is an essential element of defamation, it follows – and this cannot be overemphasized – that truth is an absolute defense to a claim of libel. But if suit is filed, who has the burden of proving the statement’s truth or falsity? Ordinarily it is the plaintiff in a civil action who must prove all elements of her claim. In libel law, however, a “media defendant” – which includes an author, journalist, or publisher – bears the burden of proving the statement’s truth unless the plaintiff is herself a public figure or official, in which case the burden remains with the plaintiff to prove falsity.

“Privilege” will often, on public policy grounds, insulate an otherwise libelous statement from liability. The First Amendment, for example, protects authors and journalists who fairly comment on matters of public interest, or who accurately republish official statements or proceedings. The U.S. Supreme Court has held that the false reporting of facts about a public figure or official by a media defendant enjoys First Amendment protection unless the defendant acted with “actual malice,” meaning with knowledge of the statement’s falsity or reckless disregard for its truth.

“Injury” to one’s reputation requires more than just hurt feelings, and a libel plaintiff must ordinarily prove actual monetary loss. Where, however, the libelous statement accuses the plaintiff of a crime, or of sexual misconduct, or of conduct (such as dishonesty) that’s incompatible with her trade, business, or office, then monetary damage will sometimes be presumed.

A final, important attribute of defamation law is that you cannot defame a dead person. This means that neither a deceased person’s estate nor her heirs or descendants can sue an author for libel unless the false statement in question also independently defames the suing plaintiff.

That’s a brief overview of the law of defamation. Tomorrow we’ll discuss the related concepts of invasion of privacy and the right of publicity, as well as some defensive strategies that writers may wish to consider.


A retired trial lawyer, Chuck Greaves is the author of five novels, most recently Tom & Lucky and George & Cokey Flo (Bloomsbury) a Wall Street Journal "Best Books of 2015" selection. You can visit him at his website.

When It’s Time to Part With Your Agent … by Chuck Greaves

Chuck_GreavesSigning with a literary agent is an early career milestone for many authors. Finding the right agent is, I submit, essential to an author’s long-term success and happiness. Having chosen both badly and well in my brief writing career, I thought I’d share both experiences, as a kind of authorial teaching moment.

When I finished the first draft of Hush Money – my debut legal mystery – in 2008, I proceeded to amass an impressive stack of agent rejections over the course of very few months, until finally hitting the jackpot – or so I’d thought – in the form of a request from a veteran New York agent (we’ll call her Natasha) to read the entire manuscript. My telephone rang several weeks later, and Natasha and I were in business together, our partnership memorialized in a two-page written agreement. Hush Money, she told me, while still in need of some minor fine-tuning, had tremendous market potential.

Several weeks passed while Natasha’s summer intern took a blue pencil to my magnum opus. When the line-edited manuscript was finally ready, I took a notion to fly to New York and collect it from Natasha in person, only to find that her address was a shared suite in a seedy section of Broadway that would have given Max Bialystock pause. Needing privacy, the four of us – Natasha, her husband, the intern, and I – squeezed into an office so small it required the intern to perch, knees to chin, on the radiator.

I flew home with the line-edited manuscript and a growing sense of unease. When I returned the tightened and polished manuscript to Natasha a month or so later, having reluctantly changed its ending and generally accommodated ninety percent of her editorial suggestions, she said she was pleased with the result, and promptly set out to test the fickle waters of commerce.

Greaves_Last_Heir[1]After several more months and a handful of editorial rejections, I flew to New York again, this time meeting Natasha and her husband for cocktails at the Algonquin (where I got stuck with the check.) At her insistence, I agreed to undertake another round of edits. Length (then 120,000 words) was, she said, our biggest problem, and so I tightened the manuscript even further, to a muscular 112,000 words, and sent it off for her final blessing. Meanwhile, I’d finished the first draft of Hard Twisted, my second novel, and sent her that as well.

She abhorred Hard Twisted, stating that the thirteen-year-old protagonist was “impossible to root for.” As for the new and improved Hush Money, she refused to even read it, calling it “unsaleable” unless and until I could pare it to fewer than 100,000 words. At that point I thanked Natasha for her efforts, and terminated our contract.

Newly rudderless, I submitted both manuscripts to the 2010 SouthWest Writers International Writing Contest in Albuquerque. From a field of over 680 entrants, Hush Money won Best Mystery, Hard Twisted won Best Historical Novel, and Hush Money won the grand-prize Storyteller Award, with Hard Twisted coming in second.

I soon had offers from several New York agents, and a second bite at the Big Apple. Should I again sign with a grizzled industry veteran, or should I go with the hungry young newcomer who professed undying love for both novels? I called an author-friend for counsel. He said, “Sign with whoever will still return your phone calls if the books haven’t sold in a year.” It proved to be some of the best career advice I’ve ever received.

Within a few weeks, Antonella Iannarino of the David Black Agency had sold Hush Money – still at 112,000 words, but with its original ending restored – to St. Martin’s Minotaur in a multi-book deal, after which she sold Hard Twisted to Bloomsbury. Hush Money – the novel Natasha had called “unsaleable” – would go on to receive starred reviews from Publisher’s Weekly and Library Journal, would be a Critics’ Pick from Kirkus, and would be a finalist for several national honors including the Shamus, Rocky, Reviewer’s Choice, and Audie Awards. Hard Twisted, the book with the “impossible to root for” protagonist, would be hailed as “a taut and intriguing thriller” (London Sunday Times) and “a gritty, gripping read, and one that begs to be put on film.” (Los Angeles Times)

So what did I learn from these very different experiences?

First, that reading is a highly subjective endeavor, and one should never be discouraged by the opinions of even a few so-called experts.

Second, that you should think long and hard before committing to an agent whose commitment to your work is other than unequivocal.

Third, that while parting with your agent might seem like a giant step backward, it is sometimes the only way to move your career forward.


Chuck Greaves has worked as a bartender, a construction worker, and a librarian. He spent 25 years as an L.A. trial lawyer before becoming a novelist (and sometimes vigneron) in southwestern Colorado, where he lives with his wife, four horses, and two German shepherds. THE LAST HEIR (Minotaur), his fourth novel, and the third installment in his award-winning Jack MacTaggart series of legal mysteries, will be in bookstores on June 24, 2014. For more information on the series, or on his literary fiction written as C. Joseph Greaves, you can visit his website, or get the latest updates here on Facebook.

BOOK GIVEAWAY NOTICE:  Readers who leave a comment on Chuck's post before noon U.S. Mountain Time on Sunday, June 22nd, will earn an entry into a drawing for a signed copy of The Last Heir. The winner will be announced here on Sunday afternoon.