Jonathan Kirsch, a publishing attorney based in Los Angeles, is general counsel of the Independent Book Publishers Association and a recipient of its Benjamin Franklin Award for excellence in publishing.
Two recent bellwether cases from the influential California Supreme Court illustrate the risks of publishing works of fact or fiction that depict the lives of real people. One case concerns a movie, the other case concerns a newspaper article, but both of them offer some useful guidance to book publishers about what can and cannot be said about a private person, and what measures can and should be taken to “clear” a manuscript for publication.
No “Commercial Appropriation” in Work of Fiction
The first case, Polydoros v. Twentieth Century Fox Film Corp., 79 Cal.Rptr.2d 205 (1998), ruled that the plaintiff was not entitled to complain merely because his name or personality was used without permission in a work of fiction.
Michael Polydoros, a former high-school classmate of filmmaker David Mickey Evans, was distressed to find a character named “Michael Palledorous” in a movie written and directed by Evans. Polydoros claimed to be “embarrassed and humiliated” by various aspects of the character, including the fact that he was nicknamed “Squints” and was shown to wear thick glasses. So distressed was Polydoros, in fact, that he sued his former classmate for “commercial appropriation of identity,” among other legal claims.
The tort, which is recognized under statutory and case law in most states, is usually invoked to prevent the use of someone’s “name, image or likeness” for advertising, merchandising or product endorsement without the permission of the person (or under some circumstances, the estate of a deceased person). Previous litigation in the publishing field, for example, has addressed the use of “name, image and likeness” in cover blurbs, catalog copy, and even dustjacket illustrations.
To the relief of the defendant in the Polydoros case, and others who create and publish works of fiction, the court rejected the plaintiff’s claim on the ground that commercial misappropriation of name, image or likeness “was never intended to apply to works of pure fiction.” Significantly the court concluded that it was unnecessary to “clear” the right to use the plaintiff’s name even if the entertainment industry “deem[s] it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.”
No “Neutral Reportage Privilege” for Private Figures
A much different conclusion was reached in the case of Khawar v. Globe International, Inc., 79 Cal.Rptr.2d 178 (1998), where a private individual was successful in suing a newspaper for libel over an article that accused him of complicity in the assassination of Robert F. Kennedy.
Khalid Khawar is a Pakistani photojournalist who appears in a famous photograph of Robert Kennedy at the Ambassador Hotel shortly before his assassination. Robert Morrow, author of The Senator Must Die, charged that Khawar was the assassin, and the tabloid newspaper The Globe repeated the charge in an article about Morrow’s book. When Khawar sued The Globe for libel, the newspaper defended on the grounds of “neutral reportage privilege,” a legal doctrine that is recognized in some (but not all) states and permits a publisher to report on newsworthy but defamatory allegations issued by others without incurring liability for repeating a libel.
The court ruled that the neutral reportage privilege, if it applies at all, applies only to reporting about public figures. Since Khawar was a private figure despite the fact that he was depicted in the famous photograph of Kennedy, the court reasoned, the privilege would not protect The Globe from a libel claim based on an article about the allegations in Robert Morrow’s book. What’s more, the court in the Khawar case noted that The Globe had not attempted to contact Khawar or other witnesses to check out the allegations in Morrow’s book, a fact that supported a finding of malice and an award of punitive damages in the amount of $500,000 against the publisher.
What Publishers Can Learn from the Polydoros and Khawar Cases
The Polydoros case suggests that it may not be necessary for an author or a publisher to seek formal permission from an individual who bears the same name or characteristics as a character in a work of fiction. However the ruling does not apply to the use of a person’s name, image or likeness for purposes of advertising, merchandising or product endorsement. And, notably, the court itself issued an ironic caution-the failure to clear the use of a name, even if not strictly required by law, may prompt an expensive lawsuit!
The Khawar case represents an even sharper caution to authors and publishers. If you are reporting on and repeating allegations about a private individual, even if the allegations were previously published in a book or newspaper, you may not confidently rely on the “neutral reportage privilege” if the individual chooses to sue for libel. At a minimum, it is good practice for authors and publishers to contact the person about whom the allegations have been made and ask for a response, but even this precaution is not a guarantee against a successful lawsuit for libel.
Both cases can be seen as a reminder that a cautious publisher will always review a manuscript for legal risks before publication, a process called “vetting.” Sometimes the risks that are detected during the vetting of a manuscript-a potential claim for libel, invasion of privacy, misappropriation of identity, copyright or trademark infringement, etc.-can be resolved by obtaining permission (or “clearance”) from a third party. Sometimes the risks can be eliminated only by judicious editing, or under extreme circumstances, choosing not to publish at all. But any publisher who relies only on the author’s assurances and hastens a manuscript into print does so at his or her own risk.