Archive for October 19, 2007

Avoid Defamation

October 19, 2007 Craig Genealogy

Defamation in genealogical publishing is not a tremendous problem for several reasons. First, the law does not recognize defamation of dead people. This fact is combined with the practice of most genealogists not publish information about living people without permission of those people. The third fact is that things thought defamatory in the past are, for cultural reasons, no longer regarded as defamatory. For example, it was once held by by courts in Mississippi, Virginia, Alabama, and Louisiana that to suggest that “a white man is a Negro” would be defamatory. It is unlikely that any court would so rule today.

Another reason that defamation is not a big problem in genealogy is that “public figures” and “public officials” are held to a higher standard to prove defamation. A “public figure” or “public official” must prove that the defamatory statement was made with “actual malice.” “Actual malice” means to know that the statement is false or to publish the statement with a reckless disregard for the truth or falsity of the matter. As a result, a”public figure” or “public official” will rarely bring a defamation suit.

The situations in which defamation may arise in genealogy are rather limited. One example is where one writes about a family in a way that reasonably could be understood to refer to still living members of the family. Suppose one writes, “All those Sanfords in Texas are crooks.” Present members of the Sanford family living in Texas probably have a good case! Here are some ways to avoid defamation:

1. Write only about dead people, unless you have explicit permission to write about living people.
2. Stick to documentable facts; don’t speculate about things that may harm someone’s reputation.
3. Document; document; document!
4. Avoid repeating gossip that can’t be confirmed.
5. If you’re not comfortable with something you’ve written, get a secound, hopefully neutral opinion, before it is published.

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and I am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.

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Another Law Lesson: A Most Excellent Question

October 19, 2007 Craig Genealogy

I had intended Thursday’s post to focus on avoiding defamation in genealogy. But then I saw this comment from Chris Dunham:

What are your thoughts on that John Dillinger story I blogged about a few months ago? Which uses of Dillinger’s name can be controlled by his relatives, and which fall under the “dead people cannot be defamed” rule?

A most excellent question!

The answer is that while the dead can’t be defamed as such, the dead (or some of them) can be “disparaged.” I explain what I mean below.

In many states, the law protects a “right of publicity.” This right of publicity is simply the right of a person to control the commercial use of his or her identity. The right of publicity is a valuable property right, protecting the commercial value of a celebrity’s identity or likeness. A person desiring to make commercial use of a celebrity’s name, voice, signature, photograph, or
likeness thus must get the consent of the celebrity. Note this applies to commercial use, and not to use in a news story, for example.

In 1979, the California Supreme Court considered two cases, Lugosi v. Universal Pictures, 25 Cal.3d 813, and Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, raising the issue of whether this right of publicity survived the death of the holder of the right. [Everyone knows that Bela Lugosi (nee Béla Ferenc Dezs? Blaskó) played "Dracula" in the 1931 film of the same name; congratulations to those who knew that Rodolfo Alfonso Raffaello Piero Filiberto Guglielmi (1895-1926) was also known as Rudolph Valentino!]

In the Guglielmi case, the studio had exhibited on television a “fictionalized version” of Valentino’s life, depicting the actor’s name, likeness and personality without obtaining the prior consent of either Valentino or his legal heir. The heir sought damages and injunctive relief on the theory that the studio had misappropriated Valentino’s “right of publicity,” and that Valentino’s legal heir was the present owner of that right. In the Lugosi case, the actor’s heirs sought an injunction against and an accounting for profits from the studio which had licensed the use of the image of the actor as Dracula on a variety of commercial products.

In both cases, the California Supreme Court held that the right is not descendible and expires upon the death of the person so protected. In 1984, responding to those cases and several other similar cases, the California Legislature enacted a statute that gave to the heirs of a deceased personality the commercial rights in that deceased personality’s name, voice, signature, photograph, or likeness. As a result, if one desires to use the name, voice, signature, photograph, or likeness of, say, Elvis Presley, in a commercial context in California, one must have the permission of the Presley Estate. The heir’s rights are valid for seventy years after the death of the celebrity. A person who violates the heirs’ right may be liable for damages, including punitive damages.

A number of states now have similar statutes.

In the Dillinger case that Chris referred to, Dillinger’s heirs have rights to his “right of publicity” for 100 years after his death under an Indiana statute.

Although the dead cannot be defamed, since heirs control rights to publicity, the heirs may refuse to license any use which they feel disparages the deceased. Frankly, they may refuse to license any particular use for just about any reason at all.

Again, note that the heirs control only commercial uses. That usually does not include scholarly works, even if those works are going to be sold.

This right of publicity isn’t limited to rich movie stars. Theoretically, anybody has such a right; it’s a question of how much it’s worth!

So tomorrow, back to defamation.

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and I am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.

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