Here is another post updated from a question and answer that originally appeared in my column in Debbie Ridpath Ohi's popular online newsletter of yore -- Inklings.
Q. I am working on a nonfiction project of a very sensitive nature, and have a lot of factual material, including documents, original letters, and more. I want to know what my rights are as far as making these things public. These letters were written to me, and I don't know how much detail I should go into as this moment . . . . [I do not know] if I can use true names and photocopies of these letters and documents, or if I need to change names, and rewrite letters I have received to protect myself from suit.
A. Your question raises implicates at least three separate areas of the law: defamation, privacy, and copyright.
Defamation claims arise out of false statements concerning individuals or businesses that tend to harm their reputations. Simplistically stated, you cannot be liable for defamation if what you publish is true. Indeed, under U.S. law, even if you inadvertently publish false information, you may escape liability if, in researching and writing your work, you have exercised the degree of care consistent with the principles of responsible journalists and authors. The degree of fault necessary to impose liability for defamation may depend on whether the subject of an erroneous statement is a public figure or a private figure.
By contrast, under the law of privacy (particularly that branch known as "public disclosure of private facts), you can be liable in some states for publishing true statements, if they would be highly embarrassing to a reasonable person and if the statements do not related to a matter of legitimate public concern. For example, intimate revelations about a person's sex life or embarrassing medical condition may raise invasion of privacy concerns, even if they are true. The law as it applies to public disclosure of private facts can be quite complex. If you are telling "your own story," and the private facts you wish to disclose are essential to that story, it may, in some instances, provide you with a defense. But you will surely need an attorney to help you navigate those waters. I will return to this subject in a later post.
Additionally, your question raises copyright issues. Even though the letters were addressed to you, the copyright ownership likely remained with the letter writer. Unless ownership was formally transferred to you or unless you received permission from the letter writer to quote from the letters, you may only quote from them to the extent permitted by "fair use." That said, copyright right protects expression, not ideas, you may be able convey much of the information in the letters in your own words, without infringing the letter writers' rights.
When a work raises issues of defamation or invasion of privacy, a publisher may ask the writer to document and explain in detail his or her basis for making particular statements. You may, for example, be asked to disclose to the publisher's attorney the documents and letter on which you have relied. You will also likely be asked to warrant in your publishing agreement that your work does not violate anyone's legal rights (e.g., that your writing will not give rise to defamation, privacy, or copyright claims).
Sometimes, as you suggest, name changes and rewriting your source materials, are prudent; the best approach must be arrived at on a case-by-case basis. Although it came out quite a few years ago, Kenneth Norwick's The Rights of Authors and Artists, published by the American Civil Liberties Union, continues to provide a good, clear, general introduction to the principles of libel and privacy law. However, if you are about to embark on a controversial project that you fully expect will be published, whether in print or online, you may wish to consult an experienced media lawyer at the outset to discuss the libel, privacy, and copyright issues you will be facing. If you already have a publisher, the publisher's attorney may be able to give you the early, practical advice you need.
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