This guest post originally appeared on Beth Barany‘s Writer’s Fun Zone site on 8/31/12.
Welcome to our regular column on literary law. Today we focus on the thorny issue of using real people in our stories, part 3 of 3 — from our monthly guest columnist, Kelley Way, a lawyer specializing in literary law. If you have general questions for Kelley on contracts or other aspects of literary law, be sure to comment [on the original post]. Thanks!
PS. A list of books on literary law can be found here.
PPS. For more on copyright, visit the U.S. Copyright Office.
And now for a bit of necessary legalese: Please note that this article does not constitute legal advice, and that an attorney-client relationship is not formed by reading the article or by commenting thereon.
In Parts 1 and 2, we covered defamation and privacy rights, and how they applied to literary law. Today we turn to the right of publicity, which is a favorite among celebrities.
The right of publicity is actually an offshoot of the right of appropriation, which we covered in Part 2.
It even has the same definition: the use of a person’s name, image, or other identifying characteristic for a commercial purpose.
Don’t worry if you’re confused; some courts still haven’t figured out the difference, and mix up the names for them, creating some murky case law. The key difference is this: appropriation is about protecting your privacy, while the right of publicity is about protecting the commercial value of your identity.
Let’s go back to some examples. In Part 2, John was suing you for appropriation after you used pictures of him for the cover of your novel. The idea there was that you invaded his privacy, causing him embarrassment and distress. Now let’s say that John is a studly movie actor, and you used a picture you cut out of a magazine instead of camera-stalking him. He’s in the public eye, so he can’t say his privacy was invaded, and he’s hardly going to be embarrassed to have his picture all over the place, even if it is on the cover of a romance novel. No, he’s upset because first, someone’s making money off his face and it’s not him; and second, now everyone will think he endorses romance novels, or at least can be paid to model for them, which could quite possibly damage his reputation and/or affect current and future contracts. These are grounds for a right of publicity lawsuit, rather than right of appropriation.