Can I Use a Photograph of Scarlett Johansson on the Cover of My E-Book?

Let's say I've written a memoir that I'm planning to self-publish. And let's say I've also decided that, on my book cover, it would be great to use a dazzling photograph of Scarlett Johansson that I've licensed from a stock photo service, such as Getty Images.  Alas, Ms. Johansson has no connection whatsoever to me or my book, but, hey, her picture on the cover certainly can't hurt my sales.

Can I -- and can you -- lawfully use a picture of an individual on a book cover without his or her permission?  It depends.

There are two separate legal considerations in publishing a photograph of a person, regardless of whether he or she is a celebrity.  

First, you must consider the rights of the photographer who ordinarily owns a copyright in the photographs that he takes.  Assuming that an image is not in the public domain, you will need the photographer's permission (or the permission of the photographer's authorized agent or of a stock photo service that controls the rights, etc.) to use the photograph for any purpose anywhere in your book.  By all means, don't simply copy and re-purpose a photograph from the Internet; that would almost surely be a copyright infringement.  (Of course, if you snap a photograph yourself you are, with some exceptions, presumably the copyright owner.)

But obtaining the necessary copyright clearance may not be enough.

Second, you must consider the rights of any identifiable persons depicted in the photographs. Those rights may, in turn, depend upon the context in which the photograph is to be used. 

A person's right to control the use of her own image (as well as certain other aspects of her persona, such as name and voice) is called the right of publicity.  There is no federal right-of-publicity statute in the United States, although some advocates favor such legislation. Instead, the right of publicity is governed by state law.  The law varies considerably from state to state, but two general principles apply.  First, the use of the image of a living person in advertising or for promotional purposes, without written permission, is unlawful almost everywhere in the United States.  So, obviously, SodaStream could not have aired this politically controversial commercial without Scarlett's written permission.  Second, consent from the subject of a photograph is not needed to use the picture in connection with genuine news and informational reports. For example, The Washington Post did not need Scarlett's permission to use her photograph in connection with this article concerning her appearance on the Colbert show.  Nor would her consent be needed to include her photograph in an informational work, such as an encyclopedia or this Wikipedia article about her. That said, there are countless uses that fall somewhere on the spectrum between a indisputably permissible editorial use and an indisputably impermissible advertising use.  To complicate matters further approximately 20 states hold that the right of publicity continues for some years after an individual's death, and is enforceable by the heirs of the deceased.

So what about putting Scarlet Johansson on my book cover?  Well, context is everything.  

First an easy case:  The courts have almost uniformly held that you can use a individual's picture, without his consent, on the cover of a book that is about him, e.g., on an unauthorized biography. (See, for example, this decision involving the Black Panther leader Bobby Seale.)  But my book is about me, not about Scarlett.

Another easy case: Singer-songwriter Tasleema Yasin successfully sued a publisher for using her photograph on the front cover of a novel entitled Baby Doll without her permission.  The court held that, because Ms. Yasin had no connection to the subject matter of the novel (indeed, her name wasn't even mentioned in it), the use of her photograph was “purely for marketing and trade purposes; solely as a means to attract customers and generate sales" and was therefore unlawful.  (See also Dorsey v. Black Pearl finding that R&B singer Marc Dorsey was likely to succeed on his claim that the unauthorized use of his photograph on the cover of novel was a violation of his right of publicity.)

But things can get tricky when the person depicted on a book cover has at least some tangential relation to the subject of the book.  For example, in Christianson v. Henry Holt, a waitress sued the publisher for the use of her photograph on the cover of the well-regarded book Nickel and Dimed by Barbara Ehrenreich, which dealt with the problems faced by the working poor.  The plaintiff had previously consented to to the use of her photograph in connection with a Fortune magazine article about "single mothers supporting their families on low-wage jobs," but she was not asked for permission to use her image on the book jacket published years later.  The publisher argued that the photograph had a reasonable connection to the book and therefore the right of publicity claim should be dismissed, but the court disagreed:

At no point is Plaintiff, her photo, or the restaurant where she appears ever part of the subject matter of the book. If Plaintiff or the restaurant where she appears had been mentioned even once in Nickle and Dimed then this Court might have doubts about this ruling. But this is not the case, and as a result, the book and the photo do not bear a reasonable relationship with each other.

Another court reached the opposite conclusion in a case with somewhat similar facts.  Dallesandro v. Henry Holt & Co., involved a book cover that depicted the plaintiff longshoreman in conversation with Father John Corridan, a priest who crusaded against corruption on the docks and was an inspiration for the film On the Waterfront. Even though Mr. Dallesandro wasn't mentioned in the text of the book, the court found that his picture was illustrative of a matter of genuine public interest, and therefore there was no violation of Mr. Dallesandro's right of publicity. The fact that the plaintiff was a longshoreman and had, in fact, spoken with Father Corridan was deemed sufficient to defeat the right of publicity claim.  However, it was a close call; one of the three judges dissented, arguing that the connection between the photograph of Mr. Dallesandro and the subject matter of the book was too remote to justify using his image.

Keeping these general principles in mind, it would be risky business for me to use Scarlett Johansson's photograph on the cover of my memoir,  I don't have her consent and my only connection to her is having purchased tickets to four of her movies over the years (which I enjoyed but didn't mention in my [hypothetical] memoir).  Similarly, if you are planning to use a photograph of a person, living or dead, on your book cover, without written permission, it is prudent to ask a lawyer whether your cover might get you into hot water.

When photographs of people appear inside your book, they are less likely to give rise to legal problems because such uses are less likely to be deemed uses for advertising or promotional purposes.  But, even then, there should be some "real relationship" between the pictures and the content of your book.  (See the Finger v. Omni  Magazine case which liberally interprets the "real relationship" test under New York law.)

If you obtain a photograph from a stock photo house to use on your book cover, keep in mind that the license agreements often cover only the copyrights in the photographs.  If you're using the image on a book cover, you should insist upon seeing a copy of any applicable right of publicity release and read it carefully to make sure it allows for your intended use. And keep in mind that, while some stock photo houses provide indemnifications to their customers, those assurances may be limited to the amount of the license fee, which is woefully inadequate to compensate you in the event of a legal claim.

Finally, be careful not to state or imply that a person depicted on your book cover endorses or approves of your work, if that isn't true.  Misleading use of someone's name or likeness implicates other areas of the law, such as false advertising.  See, for example, Rostropovich v. Koch Int’l Corp., 34 U.S.P.Q.2d 1609 (S.D.N.Y. 1995), in which cellist Mstislav Rostropovich claimed that the use of his likeness on CDs featuring his early performances would cause consumers to mistakenly believe he had endorsed the CDs.

The right of publicity has many nuances. Edward Rosenthal's good lawyerly discussion of the law can be found here. A less detailed summary from the Digital Media Law Project at Harvard can be found here.  Professor Jennifer Rothman's state-by-state "roadmap" can be found here.  Some, but by no means all, other countries recognize rights of publicity, also known as "personality rights"; see a Wikipedia listing here.

Can You Tell Your Own True Story Even If It Impinges on the Privacy of Your Lovers, Friends, and Family?

Autobiographers and memoirists sometimes face thorny legal issues when they write about aspects of their own lives that are inseparably intertwined with the private lives of others.  Can a woman truthfully describe the intimate details of her sex life if, in doing so, she identifies her partner and aspects of his life (adultery, promiscuity, kinkiness?) he would prefer to keep forever secret?  Can a gay man write about his HIV-positive status if, in doing so, he effectively discloses that his partner is also infected with the virus?  The answer is an unsatisfying: "Sometimes -- provided it is done the right way."

Public disclosure of private facts is an aspect of the right of privacy that is actionable in some (but not all) states.  While the prerequisites vary somewhat from jurisdiction to jurisdiction, a plaintiff typically must prove:

(1) publicity was given to matters concerning the plaintiff's private life;

(2) the matters made public would be highly offensive to a reasonable person of ordinary sensibilities; and

(3) the matters publicized were not newsworthy, i.e., not of legitimate public interest.

The third element is often crucial to the defense of invasion of privacy lawsuits.  Fortunately, the mainstream media have had considerable success in persuading courts to find that their disclosures of otherwise private facts are protected because they shed light on important aspects of the human condition.  The courts are especially likely to cut authors and publishers some slack in accounts that touch on the private lives of public figures.  But the courts have also often found that even disclosures of private facts about private figures qualify as newsworthy.   Sometimes, however, newsworthiness is a close call.  And, as University of Georgia law professor Sonja West explains in this law review article entitled The Story of Me, the courts' focus on whether a disclosure of private facts is "newsworthy" is arguably misguided.

Anonsen v. Donahue is one of a few interesting cases that have taken a different approach.  The dispute arose out of an appearance by Miriam Booher on The Phil Donahue Show in January 1989.  During the course of the program, Booher disclosed that her husband had raped and impregnated Nancy Anonsen, her daughter from a past marriage, when Anonsen was 11 years old.   Booher and her husband then adopted the baby boy born from the incestuous relationship.  Prior to Booher's appearance on the show, the family had never reported the crime to the authorities or publicly disclosed the events.

As touched on in a prior post, a highly-charged statement of this sort potentially implicates two separate, but interrelated areas of the law.  If the statement was false, Booher would have run the risk of a libel suit from her husband.  On the other hand, if the statement was true, she ran the risk of a claim for public disclosure of private facts.

Anonsen and her son acknowledged that the statement was true; they sued their mother/grandmother, Phil Donahue, and his production company for public disclosure of private facts. Anonsen and her son argued that, even though Booher did not mention their names on the show, by disclosing her own true name to a national television audience, Booher had inevitably revealed the family's nightmarish private tragedy to everyone who knew Booher's relationship to them.

Analyzing the three elements of the claim under Texas law, the court had no problem concluding that the crimes of incest and rape are newsworthy matters of legitimate public interest, but, in the judge's view, that did not necessarily mean that the (albeit indirect) disclosure of the victims' identities was a matter of public interest.  But, importantly, the court reasoned:

We do not believe that the issue of newsworthiness of the parties' identities . . . is relevant to the ultimate inquiry before us: whether Booher had the right to reveal her own identity.

Ultimately, the court concluded that:

to allow a cause of action based upon Booher's truthful and undisguised account of her own and her family's experience is inconsistent with the first amendment. 

A Massachusetts court adopted the Anonsen approach, at least in part, in Bonome v. Kaysen.  Susana Kaysen, the author of Girl Interrupted, also wrote a memoir about her post-teen life entitled The Camera My Mother Gave Me in which she recounted in intimate detail her then-live-in boyfriend's alleged abusive response to her refusal to have sex with him when she was suffering from a painful medical condition.  Although he was not named in the book, the boyfriend sued for invasion of privacy, arguing that many people knew that he had been Kaysen's companion and understood that Kaysen was referring to him.  The judge dismissed the claim, finding that the disclosures were a matter of legitimate public concern.  But he also went on to say that:

In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story-- which inextricably involves Bonome in an intimate way . . . . it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this  case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident thereto.

I cannot overemphasize that publishing private facts about others carries significant legal risks and must be done cautiously, if at all.  Not only may there be a question as to whether another person's story is integral to your own -- an essential aspect of the courts' reasoning in Anonsen and Kaysen.  But there is always the risk that the "dislosee" will contend that the disclosures about him/her are not only intimate, but false, as in this spicy yet disturbing case involving the blogger Washingtonienne.

If you are publishing a tell-all memoir with a major publishing house or a tell-all article with a major magazine, chances are that somewhere along the line you will get advice from an in-house lawyer about how to reduce the legal risks.  You can change names, change locations, change all sorts of identifying details, while keeping the core truth of your story intact. All of these precautions help to make the disclosee less identifiable.  But all of these precautions cannot provide an absolute guarantee that a disclosee will not be able to argue successfully that he or she is inevitably identifiable by some people who new the author and her relationship to the disclosee.

The greatest risks are likely incurred by bloggers, Facebook posters, and other online self-publishers who nonchalantly publish the intimate details of their personal lives and those of their lovers and friends, without the benefit of any legal advice.  Perhaps like Washingtonienne they take at least some precautions to conceal the identities of those they portray.  But perhaps, like Washingtonienne's embarrassed lover, their lovers and friends will feel that not enough has been done to safeguard their secrets and protect their privacy.  And it may be far more difficult for a private blogger (in contrast to a well-known author, like Kaysen, published by a powerful publisher, like Random House) to persuade a court that the private facts disclosed are matters of genuine public concern.  If the court believes they are not, then the blogger's last, best hope is that the court may conclude, as in Anonsen and Kaysen, that an autobiographer has "a right to disclose her own intimate affairs."  It's an appealing legal principle, a potentially important principle, but not one you should count on.

Postscript:  this post is not, by any means, intended to discourage memoirists from practicing their craft.  Remember, to be actionable, the disclosure must be of private facts that would be highly offensive to a reasonable person.  Most memoirs don't venture into that territory.  Moreover, book editors often tell their authors to write the truth and let the in-house lawyers figure out how the truth -- or at least most of it -- can be safely published.

When Is It Risky To Write That Someone Is "Gay"?

There are two starkly different varieties of lawsuits that have arisen from statements that someone is gay:  libel cases in which the statement is alleged to be false; and privacy cases in which the statement is acknowledged to be true.  Both types of claims may become rarer as a result of America's changing values and changing laws.

As to libel claims, there is an argument (indeed, a persuasive one, in my view) that it should no longer be regarded as libelous to call someone gay, even if the statement turns out to be false.  Libel requires a "false and defamatory statement of fact," which is typically defined as a statement that "tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace" among right thinking people.  Not only is it indisputable that the opprobrium formerly associated with homosexuality has diminished, but two major legal developments have taken place in recent years.  First, in 2003, the Supreme Court ruled in Lawrence v. Texas that laws criminalizing private, consensual same-sex sexual activity are unconstitutional.  Second, at least twenty states and the District of Columbia have outlawed employment discrimination against persons based on their sexual orientation, not to mention those states that have recognized same-sex marriages.

In the midst of this changing legal and social climate, it's not surprising that a federal court in Massachusetts stated as early as 2004 that, under Massachusetts Law, a false imputation of homosexuality was no longer defamatory.  And, earlier this year a New Jersey federal court reached the same conclusion, finding, in a case involving two radio "shock jocks," that a statement arguably implying that someone is a homosexual is no longer capable of defamatory meaning under New Jersey law.  

Regrettably, it is by no means clear that other courts will rapidly fall in line; indeed, these cases may not be the last words on the law in Massachusetts and New Jersey.  In fact, earlier this year, a federal court in Texas reached a conclusion opposite to that of the New Jersey court, in rather similar circumstances, holding that a radio personality's statement that an airport security guard was "gay," gave rise to a cause of action because "the imputation of homosexuality might, as a matter of law, expose a person to public hatred, contempt, or ridicule."  The Texas decision is reported here.

While the legal times may be a-changin', it is still far too early to conclude that they have, in fact, reliably changed.  So, as a writer, you should be aware that if you publish a statement that an identifiable living person is gay, you could still be held liable for it, if you turn out to be wrong.   (Provided, of course, that the plaintiff can prove all of the other elements of a defamation claim.)

But what about the flip side?  Can there be liability for publishing a true statement that someone is gay when that fact is not already generally known?

Many -- but not all -- states recognize a legal cause of action for "public disclosure of private facts."  A plaintiff in a "private facts" case must prove that the defendant published highly personal information about plaintiff's life that has not previously been publicly revealed, that is not of legitimate public interest, and the disclosure of of which would be offensive to a reasonable person. A terrific short summary of the law pertaining to public disclosure of private facts is available on the outstanding Citizen Media Law Project site.

The most famous lawsuit involving "outing" was brought by ex-Marine Oliver Sipple, the hero who intervened to save President Ford's life, when Sara Jane Moore attempted to assassinate him in 1975.  Subsequent press coverage of the assassination attempt, including articles in the San Francisco Chronicle, reported that Sipple had been a campaign worker for Harvey Milk and a figure in San Francisco's gay community.  Sipple was distressed by the coverage of his personal life, in part because he had never disclosed his sexual orientation to his parents, brothers, or sisters, who learned about it for the first time from the news accounts.  But Sipple lost his case because the fact that he was gay was not deemed "private," given that his sexual orientation and gay rights activism were already known "to hundreds of people in a variety of cities."  Moreover, his personal life was "newsworthy" because, by his actions in saving the President's life, he had become -- albeit involuntarily -- a public figure.  The same newsworthiness arguments might conceivably lead to a similar result in a case of outing a closeted elected official who has hypocritically railed and voted against gay rights.


But change the facts a bit and you could easily get a different outcome.  Assume that the person being outed is not a public figure.  And assume further that only a relatively small number of people were aware of his or her sexual orientation.  In that circumstance, the outed person might have a claim for public disclosure of private facts.  For example, in Diaz v. Oakland Tribune, a California court found that a student political leader could maintain a claim for public disclosure of private facts against a newspaper and a columnist for reporting that she had undergone a sex change operation -- a fact that was previously known only to her immediate family and closest friends. 


By analogy to the Massachusetts and New Jersey libel cases, it could be argued that the waning stigma associated with homosexuality in 2011 makes it less likely that a truthful statement that someone is gay would be deemed highly offensive to a reasonable person, even if he or she has not widely disclosed his or her sexual orientation.  That said, it can be difficult to see the ethical justification for publicizing the sexual orientation of a non-newsworthy, private figure who has not openly acknowledged it himself/herself, particularly when so many young people struggle mightily with the question of whether and how to make the disclosure to their friends and family.  I  realize this response is, to some degree, inconsistent with my view of the private figure libel cases. Maybe it's because reported instances of private figure outing often seem to arise in the context of alleged teen bullying, as in this haunting case, rather than in the context of well-intentioned journalism.


So, writers, if you are going to publish a statement that someone is gay, make very sure you are right, and, make very sure that the person has already publicly disclosed his or her sexual identity or that there is a compelling public interest in doing so.


Difficult questions arise in the context of memoirs, when telling your own story truthfully sometimes requires disclosing intimate facts about those you are close to.  There are some important cases that deal with this dilemma, and some courts have cut writers some slack -- a subject to which I will return in a later post.


Postscript:  Of course, writers should not feel legally inhibited about referring to openly gay public figures as gay.  And, of course, in openly gay communities, and in the publications that cover them, discussion of non-public-figures' sexual orientation is entirely commonplace.  In communities where people freely and frankly make known their own sexual orientations, the public discussion of sexual identity is unlikely to offend and unlikely to give rise to legal disputes.