Rapp: Most likely an after-the-fact license. In some cases they may demand the book be taken off the market, but most typically they'll be happy with a license. And again, in the situations I've outlined here, a license is not necessary, and their demands are bluffs.
Starr: The bar room story reminds me that I once wrote an article about "positive psychology." I used the lyrics from the famous song, "Accentuate the Positive," to show that the words expressed the entire philosophy of positive psychology. At the time it never occurred to me that there might be a legal issue.
Rapp: That's a classic example of fair use since the words are integral to the point you are making.
Starr: Whew. I'm glad you got me off the hook. Now to the sensitive issue of naming and portraying real people in fiction and non-fiction works.
Rapp: If the person is famous you can say pretty much whatever you want, particularly if it's an opinion; the first amendment protects your rights on that. If you state a fact you know is untrue, that may cause the famous person harm, and that most people will tend to believe, that's over the line. Now if it's a private person, someone who is not famous, and you write about that person by name and disclose things not known to the general public that might be embarrassing or might hold that person up to ridicule then you've infringed their privacy rights -- it's called the public disclosure of private facts.
This happens a lot in non-fiction books where the author portrays a non-famous person in a very unflattering way. Even if what the author says is true the person's privacy rights have been violated.
Starr: What if an author writes about a famous person's romantic or sexual affairs and offers analysis or diagnosis of the person's personality and motivations -- even suggesting psychopathology?
Rapp: Again, if it's a famous person and you are expressing your opinion and representing the truth fairly accurately, the first amendment would strongly protect your right to say what you want. The divide is famous vs. non-famous. And even if you make stuff up about a famous person, if it's not something that's believable you can do it. Hustler magazine ran a fake Campari ad featuring evangelical pastor Jerry Falwell talking about having sex with his mother in an outhouse. Falwell sued and the case went all the way to the Supreme Court, which ruled that since no reasonable person would believe the claims, Falwell had not been harmed. I have a client who just wrote a fake memoir of a famous rock star. Since the book will be marketed as a fake memoir, there is likewise nothing for the rock star to legitimately contest.
Starr: How important is registering a copyright?
Rapp: Prior to publication, it's a good idea to register the book with the federal Copyright Office. You own the copyright to the book as soon as you write it, but registration gives you greater protection and leverage should someone pirate your book
Starr: Thanks, Paul, for alerting authors to the critical legal issues in self-publishing. I trust that many will take your advice to obtain legal consultation, especially if they believe their works pose legal questions.