Writers Tricks of the Trade SPRING 2017 ISSUE 2, VOLUME 7 | Page 36

5 T HINGS N ONFICTION A UTHORS C AN G ET S UED F OR (C ONT ’ D )
you do that without permission, it is copyright infringement, and we have to move to the three questions. Every
nonfiction author should ask those questions liberally each time they reproduce preexisting materials in their
nonfiction works. For more on some of these defenses, see Is It Fair Use?
3. Right of Publicity violation
Everyone has a right to control the commercial exploitation of their name, image and likeness. This is called the
“right of publicity.” For example, if you were to find a picture of LeBron James on Google and print a bunch of T-
shirts with that image on the front to sell on Etsy, that would be a right of publicity violation since you are
commercially exploiting LeBron James’ image without permission. (On these facts, it is also likely be copyright
infringement as well since you copied a pre-existing photo!)
Nonfiction authors who refer to real people and use their names, images or likenesses in their books without
permission (sometimes called a “Talent Release”) might be exposed to a lawsuit for a right of publicity violation. And
unlike defamation, most right of publicity lawsuits can survive beyond the death of the person named—sometimes for
decades. (In Indiana, it lasts for 100 years.)
But right of publicity laws vary widely from state to state, and litigation against nonfiction authors and journalists
for using someone’s name alone to refer to them or tell a story are very rare. Some states, like New York, also have an
express liability exemption for non-advertising use.
4. Breach of contract
If a nonfiction author has at some point signed a contract such as a Non-Disclosure Agreement (“NDA”) or a
Confidentiality Agreement and then in their work they disclose or describe something protected by the agreement,
that is a perfect fact pattern for a breach of contract lawsuit against the author. For example, if you worked at Exxon
for 30 years and now want to write an expose on its shameful environmental practices, if Exxon reads your book and
finds something in it covered and protected by an NDA you signed at orientation 30 years ago, they will likely sue you
for breaking that agreement.
5. Trademark infringement
This is less likely, but should still be considered. In general, if you use someone else’s trademark to sell your own
goods and services, that’s trademark infringement. So if you wrote, “My former boss at Exxon Silas Greene liked to
smoke Winstons,” that would not be trademark infringement (or copyright infringement or defamation, but
it might be a right of publicity violation!). But if you develop a training program and call it, for example, “The Seven
Habits of Perpetually Optimistic People,” that would likely be an infringement of Stephen Covey’s trademark.
Every publishing contract I have ever read contains two important provisions relevant to this discussion:
warranties and indemnification. These sections state that if your publisher gets sued because your nonfiction work
contains one or more of these bad things and they get sued, you have to hire the lawyers and defend your publisher—
in addition to defending yourself. Being mindful of—and editing for—these offenses will help you sign a publishing
contract truthfully and with less fear of legal consequences.
S PRING 2017
P AGE 28
W RITERS ’ T RICKS OF THE TRADE