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Consent the best defense against invasion of privacy lawsuits

by Pat McNees   (updated 6-5-21)


Consent is the best defense against invasion of privacy lawsuits.

Truth is the best defense against a suit for defamation.
Biographers should be concerned not only with matters of copyright, fair use, and permissions, but also with the privacy and publicity rights of those they are quoting or writing about, said entertainment lawyer Kirk Schroder on the “Can I Quote That?” panel I moderated at the Compleat Biographer conference

held in Washington, DC in May 2011.

Private citizens are more likely to sue for violation of rights of privacy; celebrities are more likely to sue for violation of rights of publicity. But distinctions aren’t crystal clear—and underlying legal considerations are moral considerations.

The right of privacy (essentially “the right to be left alone”) is your right to control and protect the public use of your identity. You can violate that right in any of four ways:
• By showing someone in a false light (for example, including a religious person’s photograph in a commercial for an activity generally considered sinful, causing that person embarrassment and mental distress)
Intrusion (unreasonably invading someone’s seclusion—for example, by reading their mail or photographing them in their home through a window)
Disclosure (disclosing hitherto private information about a person that, whether true or not, might be embarrassing or offensive to a person of ordinary sensibilities)
Misappropriation (the unauthorized use, for commercial purposes, of a person’s name or likeness in ways that damage the person’s reputation or peace of mind).

There is a fuller discussion of these topics in Chapter 13 from Fair Use, Free Use, and Use by Permission: How to Handle Copyrights in All Media by Lee Wilson. See also “Avoiding Self-Censorship: A Guide to the Detection of Legal Landmines” by Nicholas S. Hentoff and Harvey A. Silverglate, in Writing Creative Nonfiction, ed. by Carolyn Forché and Philip Gerard – two sources I leaned on here.

Most lawsuits for invasion of privacy are filed against newspapers, magazines, and broadcast media, but private parties can also be sued, cannot hide behind the First Amendment (“freedom of the press”), and may face a fierce court battle because of the other party’s hurt feelings or perception of a damaged reputation. The outcome may vary depending on the fame of the person claiming invasion of privacy. Invading the privacy of someone who is not well-known is harder to defend against.

Consent is the best defense against a lawsuit for invasion of privacy. The best defense is a signature on a written release or consent form which clearly states that the writer may use the interview subject’s name, likeness, and recorded interview in whatever work(s) s/he plans to produce, in whatever media. (By contrast, truth is the best defense against a suit for defamation.)

The right of privacy is a personal right; I cannot sue for its violation on my late father’s behalf.

Misappropriating the right of publicity is different; it is an invasion (without their consent) of a person’s right to benefit from commercial exploitation of their name or likeness. As a property right, the right of publicity can be assigned or inherited.

Panelists on the “Can I QuoteThat?” panel (which focused on copyright, fair use, and permissions) were entertainment lawyer Kirk Schroder (whom I would hire in a minute, if I needed an entertainment lawyer), biographer Kitty Kelley, and publisher Bruce Bortz , with Pat McNees (me) moderating. To everyone’s surprise, this was one of the liveliest and most entertaining debates at the conference, especially after Kitty prefaced a comment to Bruce with, “I eat lawyers for lunch.” ("I was kidding!" she said later. Bruce wasn't so sure.) This second Compleat Biographer conference was held at the National Press Club on May 21, 2011. Plans are to hold the 2012 conference in Los Angeles.

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