Introduction

Publishing a biography of a celebrity/public figure could be a financially successful endeavor for a publishing company. There are two types of biographies, one that has been authorized by its subject and the other that is unauthorized. Unauthorized biographies are generally grouped into one of two categories; those written by career journalists and scholars or those written by a former confidante or employee of the subject, which is commonly referred to as a "kiss and tell" book. It is possible that the author and/or publisher of a biography could encounter substantial legal risks when the subject of the biography has not authorized the writing and publication of his/her life story. The purpose of this article is to provide authors and publishers with some basic information about the legal risks involved in publishing an unauthorized biography and how they may possibly lessen such risks.

The subject of an unauthorized biography could potentially bring a lawsuit for any number of legal causes, including libel, invasion of privacy, misappropriation of the right of publicity, copyright infringement, unfair competition or breach of confidence. With the exception of copyright infringement that is governed by national law all of the other above-referenced legal actions involve state law, which varies from state-to-state. In addition to monetary damages, the subject of a biography could request a court to grant an injunction that prevents the publication of the unauthorized biography or withdraws the book from further distribution subsequent to its publication.

The general legal rule is that an author can write a biography without the subject's permission providing that the biography is accurate and does not invade the subject's right of privacy, misappropriate his/her right of publicity, infringe copyright protected material of the subject, engage in unfair competition or violate a breach of confidence with the subject. However, despite this rule the subject of an unauthorized biography may still attempt to prevent publication or further distribution of his/her life story and/or obtain monetary damages. Arguably, the best way to avoid any legal controversy is for the author to obtain consent from the subject of the biography as well as from each living person depicted in the subject's biography. In reality, this is not always possible, particularly when the subject does not want his/her story being told or where the subject has already agreed to have an authorized version of his/her story written.

As a general rule, a deceased person has no right of privacy and cannot be libeled, but under certain circumstances a family member of a deceased person may be able to bring privacy and libel actions. The heirs of a deceased person might also be able to initiate misappropriation of the right of publicity, copyright infringement, unfair competition or breach of confidence causes of action.

In the event that a legal action is commenced against the publication or distribution of a biography it is unlikely, except in the event of copyright infringement, that a court would grant an injunction. Courts maintain a strong duty to protect First Amendment speech as they have an overriding concern and fear that placing "prior restraints" on speech could lead to a "chilling effect" on other speech. Because of this deference to the First Amendment and the presumption against prior restraints, a court will usually not permit an injunction that prevents the publication and/or distribution of an unauthorized biography but instead will only permit monetary damages to be awarded to remedy the unlawful acts of the author and publisher.

Libel

Libel is an untruthful written statement that results in the damage of one's reputation; defamation applies to oral statements. In most states, truth is a complete defense to a charge of libel.

Courts generally will not find liability without first finding fault. This means that the subject of the biography, or person claiming to be libeled, has shown that the author and/or publisher acted negligently in the publication of the libelous statement. When the subject of the biography is a celebrity/public figure, which in most cases they are, then the subject must also show the author and/or publisher acted with "actual malice". Actual malice means that author and/or publisher had actual knowledge that statements were false or that the author and/or publisher acted with reckless disregard for whether or not the statements were true or false. A private person, someone other than a celebrity/public figure, is granted greater protection regarding libel and therefore has a lesser burden of proving fault.

Tip: To avoid a libel action, the author must be diligent in preserving the accuracy of the subject's life story.

Right of Privacy

There are four categories of an individual's "Right of Privacy": 1) "Public Disclosure of Private Facts" -- this category deals with the publication of private and embarrassing facts that are not related to matters of public concern; 2) "False Light Invasion of Privacy" -- this category involves a statement that is literally true and not "private" or necessarily "embarrassing", but it may still be an invasion of privacy if it suggests something false or misleading about the person; 3) "Intrusion" -- this category involves physically intruding on a person's privacy by entering onto their property; and 4) "Misappropriation of Name or Likeness" -- this was historically a category of privacy law but is now commonly referred to as the "Right of Publicity".

It has been very rare for a celebrity/public figure to be successful in litigating right of privacy or public disclosure cases involving unauthorized biographies. This is in part because the media has been granted a great degree of latitude when writing about such persons. Therefore, celebrities/public figures have realized that they must resign themselves to the fact that intimate and personal facts of their personal lives, that might be kept private for other persons, may be revealed when they become known to the public. When Frank Sinatra withdrew his lawsuit to enjoin publication of his unauthorized biography, Kitty Kelly, the author, may have sounded the death knell for a celebrity's private life when she proclaimed: "The life of a public figure belongs to us, the average American citizen."

Unlike libel actions, truth is not a defense in privacy actions. The person who seeks legal remedy for the invasion of privacy does not usually dispute the truthfulness of the statements made, but instead claims that the statements, although they may be true, have invaded his/her right of privacy and have therefore caused personal injury. Courts, although not frequently, have granted injunctions when an egregious invasion of privacy has occurred. However, most courts will not grant an injunction because they recognize that the public has a legitimate public interest in obtaining information about the private life of a public figure or celebrity.

Tip: The privacy rights of private persons are treated more stringently then those for public figures/celebrities. Therefore an author should obtain consent from a private person when the biography contains private or embarrassing facts about that person.

Right of Publicity

The "Right of Publicity" prohibits others from using someone's name or likeness for commercial purposes. Because courts have interpreted the right of publicity to mean that it has intrinsic value this right usually only applies to celebrities/public figures since it acts to a great degree as a symbol of their identity. The right of publicity is a form of property that may have significant economic value in that it can be sold and licensed to third parties or passed on in some states to one's heirs. For example the right of publicity may be licensed for product endorsements. Therefore, the appropriation of one's name or likeness without permission is a taking of that person's commercial right to exploit his/her name or likeness.

The general legal rule is that an author can write an unauthorized biography of a celebrity/public figure without violating the subject's right of publicity as long as the author does not claim or imply that the subject endorses or has authorized the biography. In one such case, the court determined that "the facts of an individual's life possess no intrinsic value that will deteriorate with repeated use."

Copyright Infringment

Allegations involving copyright infringement frequently occur when the author of an unauthorized biography makes use of the subject's published or unpublished letters and papers or possibly from oral conversations the author may have had with the subject.

In Salinger v. Random House, Inc., the author's use of extensive quotations from unpublished letters written by J.D. Salinger, the subject of the biography, without Salinger's permission was deemed to be copyright infringement. Under copyright law the writer of unpublished letters has the right to control the first publication of those letters.

Criticism of the Salinger decision as well as other copyright infringement decisions based upon what was believed to be excessive protection for unpublished works, resulted in Congress amending the Copyright Act. U.S. copyright law now provides that if a work is unpublished and it is used without permission of its author then the fact that the work was unpublished by itself would not be sufficient to constitute copyright infringement. Subsequently, in Wright v. Warner Books it was held that when a work is one of "criticism, scholarship or research," that quotations from unpublished personal letters and journals might constitute fair use.

In Estate of Hemingway v. Random House, Inc., which concerned the publication of portions of conversations between the author and Ernest Hemingway, the court ruled that the author of Papa Hemingway did not infringe the common law copyright of these conversations by including them in a book on Hemingway's life. The court stated that even if the author used verbatim some of Hemingway's words that such use was minimal and qualified as fair use of the material.

Copyright infringement is the one legal action that could most commonly lead to an injunction. This is because an injunction is a specific statutory remedy enumerated in the Copyright Act. It has been held to be in compliance with First Amendment concerns because the injunction is not being used to prevent publication of an unauthorized biography but is instead only being used to prevent the publication of another person's copyright protected works.

Tip: Do not forget that copyright law protects unpublished as well as published works.

Unfair Competition

An unfair competition cause of action relating to publication of an unauthorized biography will only be successful when the subject of the biography proves that the author and/or publisher's actions were such that they intended to deceive the public into (1) believing the unauthorized biography was authorized by the subject or (2) believing that the subject assisted in the writing of the biography or (3) that the unauthorized biography created confusion with the subject's planned publication of his/her biography.

In Ferrer v Maychick the court found that the potential injury to the marketability of a planned memoir by Audrey Hepburn's son was sufficient to bring an unfair competition claim against an unauthorized Hepburn biography. Hepburn's son alleged that the statements on the dust cover of Audrey Hepburn: An Intimate Portrait gave the false impression to the public that this was an authorized biography. An industry expert testifying in this case told the court that a second authorized biography is made less valuable by the publication of the first biography, especially if the public is led to believe that the first one published, Audrey Hepburn: An Intimate Portrait, was an authorized biography.

Tip: When promoting an unauthorized biography be careful not to mislead the public into believing it is an authorized biography

Breach of Confidence

In those instances where the subject of an unauthorized biography has established a legally binding contractual or fiduciary relationship with the author then the subject may be successful in preventing publication of the biography, maintaining his/her privacy and/or recovering monetary damages from its publication.

A celebrity/public figure may find protection in those instances where an employee or intimate of the celebrity/public figure has entered into a contractual relationship that prohibits disclosure of information about the celebrity/public figure or prohibits competition with an authorized biography. Contractual agreements that prevent the disclosure of confidential/personal information have as a general rule been upheld by the courts especially when the provisions in such an agreement are reasonable and not overly broad. A non-competition clause or agreement is usually only enforced when the subject has previously written or is planning to write his life story or has authorized the writing of his life story and the unauthorized biography by an intimate or employee would deprive the subject of "a tangible economic benefit." When the parties have had a fiduciary relationship with one another the degree of protection from disclosure of confidential/personal information and/or non-competition is greater in scope than if the relationship were solely a contractual one.

Tip: A publisher should conduct "due diligence" before publishing an unauthorized biography authored by an intimate or employee of the subject of the biography.

Conclusion

If the biographer can obtain the rights to a person's life story and if the published story is an accurate portrayal of the subject's life then this should be the legal equivalent of securing a promise that the subject of the biography will not bring a legal action against the author or publisher. But if the author does not obtain permission from the subject of the biography, it is still permissible to publish an unauthorized biography but the author must be certain that his work is an accurate depiction of the subject's life story. Furthermore, the author of an unauthorized biography must not (1) breach a confidential relationship with the subject, (2) violate the subject's right of privacy and/or publicity, (3) infringe the copyright in the subject's published or unpublished letters or other writings or (4) represent that the unauthorized biography is an authorized biography. To minimize any monetary damages that might result from the publication of an unauthorized biography a publisher should ensure that a "warranty and indemnity" clause is included in the publishing contract and that a "media perils" insurance policy covers this work.

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Lloyd L. Rich is an attorney practicing publishing and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206. Phone: (303) 388-0291; FAX: (303) 388-0477; E-Mail: rich@publishingattorney.com; Web Site: http://www.publishingattorney.com. The research for this article was provided by Holly Panetta a second year student at the University of Denver School of Law.