Writing About Real People: What Authors Need to Know About Libel, Defamation, and Rights of Privacy and Publicity

Writers should be cognizant of potential legal claims when writing biographies and other nonfiction about living people or when basing a fictional character on a recognizable real person. These include claims for libel (defamation in published writing) as well as certain rights of privacy and publicity provided through state laws.

While state laws vary in their particulars, they share certain basic elements. Since most books and other literary works are distributed nationally today, it is best to follow the strictest laws.

Here’s what authors should be aware of when writing about real people. Note that this page provides only a general overview of certain types of claims and does not constitute legal advice.

Defamation and Libel

Defamation is a false statement of fact that is harmful to the reputation of an identifiable person or entity. When a defamatory statement is written (or otherwise communicated in print), it is known as libel.

Elements of a Libel Claim

In general, a libel claim consists of the following elements:

• A written statement of fact held out as true. A fact is considered information that can be verified or corroborated with evidence. Statements of opinion are not covered.
• …that is harmful to one’s reputation. For a libel claim to succeed, the person about whom the statement is made has to be living at the time of publication (though, as discussed below, there may be other types of claims available to descendants of deceased persons in some states).
• …that is false. The statement has to be substantially wrong. If it merely gets some small details incorrect, that is not enough.
• …that is published. The writing must have been communicated to a third party other than the subject.
• …that was made with fault. If the person referenced is a private person, the statement must have been made with negligence, meaning that the speaker knew or should have known that it was false (by taking reasonable steps to determine the truth). If the person referenced is a public figure, the standard is higher: the statement must have been made with actual malice—i.e., the speaker had actual knowledge it was false or had serious doubts about the truth.

Libel claims may arise even if the subject is purported to be a fictional character. These cases often turn on what is known as the “of and concerning” standard, which considers whether the character so closely resembles a real person that a reader would have no difficulty linking the two.

What If the Statement Is True?

Importantly, truth is an absolute defense to a libel claim. That is, if the writer can show that the challenged statement is substantially true, a libel claim cannot succeed.

Baseless Libel Claims

To protect against baseless claims of libel (e.g., where the statement is true or is opinion), many states have Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes that allow for early dismissal of baseless libel claims. SLAPP suits are commonly brought by wealthy individuals as a way to intimidate journalists and other authors from writing about them in ways they dislike but that involve matters of public concern. Anti-SLAPP laws provide an efficient and cost-effective way for writers and their publishers to have these cases dismissed more quickly.

Right of Publicity

The right of publicity generally restricts one individual from using or exploiting another’s name, image, likeness, voice, or other defining personal attributes for commercial purposes without authorization. Like copyright, it is an exclusive right, meaning that the holder of the right has the sole authority to decide whether, or under what conditions, their publicity rights can be used.

As a practical matter, even though technically anyone could assert a right of publicity, it most often arises in the case of well-known people whose names can add value to a product or service. For example, using an actor’s name or image to sell insurance without their permission would be a violation of their right of publicity. You do see a lot of ads with celebrities touting a product these days, but if legitimate, it is because the seller paid the celebrity, often handsomely.

Some states, such as New York, include the right of publicity under a general right of privacy law that often protects the same interests.

Right of Publicity After Death

Some states provide for post-mortem (“after death”) rights of publicity, allowing a person’s descendants to exert the right for a period of time after their death. Lengths vary by state: California has a 70-year post-mortem term, New York has a 40-year term, and Tennessee (home to the Elvis Presley estate) provides an initial term of 10 years that can be extended indefinitely so long as it continues to be exploited.

Right of Publicity and AI

The right of publicity has taken on even greater salience in the generative AI age. Remarkably accurate deepfakes and other depictions of public figures can now be produced quickly and cheaply, creating significant risks of misinformation and reputational harm. This has resulted in proposals for a right of publicity law at the federal level (e.g., the NO FAKES Act).

Exceptions to the Right of Publicity

There are important free speech exceptions to the right of publicity.For example, the First Amendment protects speech that serves a public interest—such as uses of a person’s name that serve a newsworthy or informational purpose. In addition, some states create exceptions for critiques, commentary, parody, and satire, as well as for expressive or artistic works.

Generally speaking, books and articles are exempted as expressive, informational works, and you do not have to get permission from a person or their descendants in order to write about them.

Rights of Privacy

States also provide a variety of legal protections falling into the category of rights of privacy. While the laws vary by state, they generally can be grouped into the following types of claims.

False Light

False light means publicly sharing information about someone that would be highly offensive to a reasonable person, portrays an individual in an inaccurate way, or generates an untrue implication. The one who publishes the information must act with reckless disregard of its truth or the false light in which it would place the other person.

While false light claims may overlap with defamation claims, they generally have different aims and evidentiary requirements. In a defamation suit, the plaintiff generally must provide evidence of harm to their reputation. A false light claim requires only that the shared information be highly offensive to a reasonable person.

Public Disclosure of Private Facts

This means publicizing private facts or information to the public at large that would be highly offensive to a reasonable person, where the information does not concern a legitimate public matter such as newsworthy information.

How to Protect Yourself

It can be very expensive to defend a claim brought by a person who is upset at being portrayed, even if you or your lawyer believe that you will win. Anti-SLAPP laws help enormously, but there will usually still be some legal fees.

The following are common ways to avoid these types of claims:

• Releases: One way to avoid claims is to obtain releases from any real people featured in a work granting permission to the author.
• Insurance: Authors may also seek insurance protection as an added shield from liability and associated legal costs.
• Manuscript vetting: For questions about specific situations, it is always best to consult with an attorney and have your manuscript vetted if you think there may be reason for concern. Your publisher may hire a lawyer to vet the manuscript for you. Be sure to tell them when you have based a work of fiction on a real, living person so they may assess whether a vetting is necessary.

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