The Things You Can Write, Part II
Writing and Publishing, Laws and Market Appetites
Happy Thursday and welcome to part two (of two) of an extra-long Shelf Life on the things you can write, the things you can publish, and the things you can profit from. On Tuesday I talked about the distinction between those three things:
You can write whatever you want, so long as it’s for your eyes only.
You can publish anything that doesn’t violate someone else’s right to privacy.
You can profit from anything you can publish that doesn’t infringe someone else’s copyright—and that people will pay money for.
Some things you can write and not publish—at least without potential legal ramifications. Some things you can publish but not for profit, like fanfiction that uses the copyrighted intellectual property of others. Anything that doesn’t violate someone else’s right to privacy or their copyright can be published and sold for money if there are people willing to buy it.
Part I covered the use of copyrighted intellectual property, which applies to those who write fanfiction, and the subject of defamation, which may apply to anyone who writes about real, living people, whether they are public figures or not—for instance, memoir writers. Today I’m continuing on in the same vein to talk about invasion of privacy. Even if the things you publish about another person aren’t strictly defamation—for instance, if they’re not injurious—writing about another person and then publishing that writing may invade that person’s privacy. These rules should be of interest to memoir writers as well as anyone who wants to write an unauthorized celebrity tell-all or publish some RPF, or “real-person fiction,” which is fanfiction about a real person.
Invasion of Privacy
Sometimes even if what you’re saying is true—and therefore is not defamation—to publish it is still an invasion of privacy under the applicable privacy laws of where you live. I can’t speak for every jurisdiction but we definitely have privacy laws here in the United States. There are four main situations that a writer (especially a memoirist) should be aware of that can support a claim of invasion of privacy.
Intrusion of solitude;
Public disclosure of private facts;
Appropriation of someone’s name or likeness; or
False light.
You can read more about invasion of privacy generally in another excellent Findlaw article I dug up for you. In Shelf Life I’m focusing on how the invasion of privacy relates to writing and publishing.
Intrusion of Solitude
Intrusion of solitude, in privacy law, doesn’t always apply to writing about someone—but it can. An intrusion on someone’s solitude means to intrude physically or electronically on someone’s private space—that is, a place (and during a time) at which they have a reasonable expectation of privacy. If someone came into my home when I was hosting a party and left behind a recording device, and then afterward listened to private conversations between me and my dogs about how they are cute little babies yes they are, that person would be intruding upon my solitude and invading my privacy. It wasn’t an invasion of my privacy to be in my home when they were invited; and they are not physically in my home after the fact to intrude, but in this example someone is electronically surveilling my private space at a time when I have a reasonable expectation of having a private conversation with my dogs.
Any information obtained this way and then written and published would be grounds for a lawsuit. If you get ahold of someone’s emails, letters, phone conversations, or any other material that they could reasonably have expected to be private, that material is not publishable—at least not without exposing yourself to a lawsuit.
Public Disclosure of Private Facts
Private citizens—those of us who are of little or not interest to the public—have a right to have the facts of our lives kept private, even if they are true, if they are facts that a reasonable person would find offensive to have published. While a statement may not be defamatory if it is true, to publish it may still constitute an invasion of privacy. The private facts of someone’s life may be published if they are of public concern.
For instance, say someone learns that Catherine from Shelf Life is irresponsible with money, sometimes writes bad checks (anyone remember checks?), and overdraws her checking account regularly, my fiscal irresponsibility is a private fact of my life and as a regular old citizen I have a reasonable expectation of privacy. This information is not useful or helpful to the public; the public has no reasonable need to know this. The local stores might have me on their list of bad check writers so the clerks know not to accept checks from me, but my next-door neighbor, my kid’s elementary school principal, and the community librarian don’t need this information.
If someone were to publish writing that reveals these private facts to the public, that person could be liable for invading my privacy even though the information they published is true. Truth is not a defense to the public disclosure of private facts as it is to defamation.
However, if I, Catherine from Shelf Life, were also the County Treasurer of the county in which the writer lived, or running for that elected office, then the writer could make the argument that these are no longer private facts as they are of legitimate public concern.
Again, for memoirists who intend to self-publish their work, it’s important to get a written, signed release from any living person who is recognizably included in the manuscript, if the information about them is not of legitimate public interest. If it’s not possible to obtain a release, the writer should take special care to disguise the character by changing the name and identifying characteristics to avoid potential lawsuits for invasion of privacy.
False Light
Once again: Truth is a defense against defamation. You cannot defame someone or libel them if the information you publish about them is true—but you may still invade their privacy in other ways, and invading someone’s privacy can have consequences. Publishing something that shows another person in a false light is one of those ways. This occurs when a published work (or any public statement) portrays another person unfavorably in a way that is false or misleading. The or misleading part is important in this context because implying bad behavior based on the statement of strictly true facts can count. That is to say, even if what a writer publishes about a third party individual is limited to true facts, if those facts mislead readers to imply something about the subject of the writing that is (A) untrue and (B) highly offensive to a reasonable person (there’s that reasonable person again), then the subject may have an invasion of privacy claim.
There’s a lot of overlap between defamation and false light, but an important difference is that the truth of the published facts is not necessarily a defense to a false light claim.
For instance, if I wrote a scathing public letter stating for a fact the Preacher at my church goes out on Saturday nights to the next town over, without his wife, and has dinner with another woman—but I also know for a fact that the woman is his sister and nothing inappropriate is going on, and I leave that bit out—I could be liable for portraying the preacherman in a false light.
Appropriation
Finally, let’s get back to my fanfiction writers for a bit on the subject of privacy laws—specifically, appropriation. This one is easy. Famous people own the right to profit from their name and likeness. Others cannot use the name and likeness of another person in their creative endeavors without permission.
Just as with other types of fanwork, real-person fanfic (RPF) exists in a gray area where the famous person who has been written into the fanfiction could make a case to have the published work taken down. Just as JK Rowling could take action against a fanfiction story that features Hogwarts as a setting (because Hogwarts is her intellectual property), so could Harry Styles theoretically take action against a fanfiction story about a teenage girl whose mother gets sick of her and sells her to the band One Direction (because his name and likeness, which are part of the story, belong to him).
Fanfiction usually is allowed to exist as long as the writers don’t attempt to sell and profit from their writing. A story that includes famous people as characters, when they are recognizable by their name, likeness, or well-known characteristics, can’t be sold for money without invading the privacy of the famous people who were included.
After by Anna Todd started life as a Harry Styles fanfic. Keep the famous name out of it and you’ll be fine.
Lack of Market Appetite
Finally, there’s the most egregious reason people are told they can’t or shouldn’t write or publish something: Because the idea is dumb and bad and will never make money. Sometimes people don’t wait to be told this, but seek others’ opinions by asking whether their idea for a novel could turn into something profitable. The implication is that it shouldn’t be written if it won’t, ultimately, sell and make money.
In truth, the vast majority of books that are written never make a significant amount of money. The average traditionally published book sells fewer than 3,000 copies.(1) The average self-published book sells fewer than 250 copies, with 90 percent of self-published titles selling fewer than 100 copies.(2) Around 4 million new titles are published each year, the the majority of them self-published.(3) That’s a whole lot of books—both trad and self published—that are read by very few people or even no one at all, due to how averaging works.
That doesn’t mean these books shouldn’t be written. Neither does it mean these books shouldn’t be published. First of all, the market is a fickle creature whose desires change all the time. What might today sound like a bad idea that would never sell might be next year’s hottest property. The only way to find out is to write it.
Notes
Average Book Sales Figures: A Transparent Look Into Publishing by Sam Jordison.
Self-published Books & Authors Sales Statistics [2023] by Nicholas Rizzo.
How Many Books Are Published Each Year? [2023 Statistics] by Rob Errera.
If you have questions that you'd like to see answered in Shelf Life, ideas for topics that you'd like to explore, or feedback on the newsletter, please feel free to contact me. I would love to hear from you.
For more information about who I am, what I do, and, most important, what my dog looks like, please visit my website.
After you have read a few posts, if you find that you're enjoying Shelf Life, please recommend it to your word-oriented friends.