Outside of a Dog #3: Poe's Legal Battle

Poe's Successful Defamation Lawsuit

Outside of a Dog is a series that features publishing wisdom from a variety of classic and contemporary sources.  As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases.

The New York Times reports that the literati have reached for their plagiarism pitch folks andtorches.  This time the literary prey is the author of a work of historical fiction whose main character is Mrs. Edgar Allan Poe.  The author of The Raven's Bride is in a perilous position - a literary outcast.  Ironically, Poe was vilified by New York's carnivorous literary establishment toward the end of his career.  In defense, instead of the pen, Poe reached for a lawyer.  Long forgotten, Poe's literary feud and lawsuit are a sad account of what happens when good writers do bad things.  

While famous for The Raven, Edgar Allan Poe was notorious for writing painful, intimate sketches of New York's literati.  Three years before his death, Poe's literary output was at a virtual standstill.  However, he had no difficulty spewing gossip for Godey's Lady's Book.  An abhorer of literary cliques, he used this lofty perch for self-promotion and to mercifully skewer friend and foe alike. He also used it to settle old debts. In July 1846,  Poe picked a fight with Thomas Dunn English, a minor poet and publisher, who Poe "profiled" in The Literati of New York.  Poe took issue with English's appearance (comparing him to an ass), his poetry (allegedly plagiarized) and even punctuation.  Poe knew English from his hardscrabble days in Philadelphia. Although the two had been friendly, that friendship ended in 1843, when English published a pro temperance novel, in which he ridiculed Poe by depicting him as a deceitful and quarrelsome drunk.   While English did not name Poe, the character in the novel was unmistakably a drawn-from-life portrayal of the brilliant writer.

In payment for Poe's unkind portrayal of him in Godey's Lady's Book, English dished out double what Poe had heaped in front of him in print.  On June 23, 1846, The Evening Mirror published English's "Reply to Mr. Poe," in which he called Poe a drunk, a forger, a fraud, a plagiarist, and, channeling Monty Python, an abject poltroon.  Curiously, Poe's large head and tiny hands were spared, but not his manhood.  My theory concerning English's apparent restraint, is that he had a large forehead and small hands. Petty, nasty and prideful describes both Poe and English.  English painted Poe as an unprincipled poseur:

"He is not alone thoroughly unprincipled, base and depraved, but silly-vain and ignorant -- not alone an assassin in morals, but a quack in literature.  His frequent quotations from languages of which he is entirely ignorant, and his consequent blunders expose his to ridicule, while his cool plagiarisms from known or forgotten writers, excite the public amazement."

Poe, no longer welcome in New York's literary salons, retreated north to a small, drafty, cottage in the village of Fordham.  Blacklisted and broke, he sued the owners of The Evening Mirror (but, not English) for publishing English's rejoinder. Why did Poe drop his pen and deploy a lawyer?  Three reasons.  English challenged Poe to sue him. Poe's lawyer took the matter on a contingency fee basis.  And, in a letter to Horace Greeley, Poe wrote,  "I sue; to redeem my character from these foul accusations."  On February 17, 1847 a jury awarded "Mr. P. $225 damages and six cents costs."   He had sued for $5,000 in compensatory damages.  Within three (horrible and unhappy years) Poe was dead.

Was Godey's Lady's Book a good career move for Poe?  I don't think so.  Was challenging Poe to make good on his threat to sue him a smart move on the part of English?  Ditto. 

On a personal level, while not condoning possible bad behavior, I hope the author of The Raven Bride survives the persecution and returns as a full-member of the literary world. The journals that vilified Poe are long forgotten.  Poe is evermore. There are second acts.  

Related
Outside a Dog: Nos. 1 & 2 (Mark Twain's 1900 eBook Contract  & Reserved Rights)
Libel-in-Fiction: Is Dick Cheney a Robot?  by Lloyd J. Jassin
Poe Makes Appearance as Marmaduke Hammerhead in Tom Dunn English's 1844 Roman a Clef 

Resources
Poe's Major Crisis: His Libel Suit & New York's Literary World (1970, Duke Univ) by Sidney P. Moss
Israfel: The Life & Times of Edgar Allan Poe  (1927, Doran) by Harvey Allen
Poe's Poisoned Pen: A Study in Fiction as Vendetta (2009), by CL Givens

Edgar Allan Poe's "The Bells" sung by Phil Ochs

Ask a Lawyer: Do I Need an Interview Release?

["Ask a Lawyer" appears in The Huffington Post. The "Q" to my "A" is  Jeff Rivera, a journalist who reports on publishing and entertainment trends and personalities.]

Q: I'm writing a book based on interviews I've done with political leaders, writers, actors, and other prominent people. Do I need written permission? What can I do to avoid being sued for libel?

A: What can go wrong if you don't have a signed release? Leading the parade of horribles are claims for defamation, false light invasion of privacy (a misleading implication that the average person would find highly offensive), and breach of contract.   

 

If you choose to forego a release, free speech, fair use, and implied consent defenses may insulate you against specific claims. However, because of the legal what-ifs, the ill-defined boundaries of implied consent, and the fact public figures are known to have large egos, deep pockets, and lawyers on speed dial, the best practice is to obtain a release.  

 

A well-drafted release will cover more than just permission to use a person's name and statements. For example, a release can potentially sidestep a lawsuit alleging alterations made to the speaker's words have tarnished their reputation. This is especially helpful when the individual is not a public figure and the statements do not concern a matter of public interest. 

 

Another potential problem a release can prevent is a disgruntled interviewee's attempt to revoke their consent or demand certain statements be deleted. The drafter of a release will want the unambiguous right to use the individual's name, voice and likeness to promote the interview. A release may include an indemnification clause that shifts liability from the publisher or podcaster to the interviewee. If the interview can be edited at the publisher or podcaster's discretion, the interviewee might try to exclude any editorial changes made without their consent from the indemnity.

Here's a link to sample interview releases. 

 

Spoken Releases

 

Did I hear you say, "What self-respecting political leader, bestselling author, or celebrity would sign an interview or guest appearance release? Excellent point. While less effective than a signed release, you can record the subject's consent. Provided the scope of rights is clearly defined, it's a viable alternative.  

 

While recording, before the interview starts, state the interview date and the interviewee's name. State clearly that the interview may be edited and used in all media, in whole or in part, in all languages throughout the world, in perpetuity. Then ask if you have their permission to record the actual interview and their answers to your questions. 

 

Of course, the law will hold you to your promise if the interviewee limits how or where the interview may be used. 

 

The Parade of Interview Horribles

 

Infringement and Libel Lead the Parade of Horribles

Copyright. Will the interviewee claim ownership of the interview? Some copyright scholars posit that the interviewer and interviewee jointly own the interview. To quality as a joint work, the interviewer (or podcast host) and the interviewee must agree that they will each own the interview. But that's not how things usually work in the real world. Most interviews do not qualify as joint works under the Copyright Act. In the rare instance an interview qualifies as joint work, either co-owner can issue non-exclusive licenses without the other's consent, subject to a duty to account for any profits made. 

The Copyright Office believes that an interview consists of two separate copyrights. That is right. They believe it consists of two separate copyrights - the interviewer and interviewee each owns the words they spoke. It's an interesting theory but of little practical value to the interviewer. Another legal theory is that the interviewer owns how the questions and answers are selected and arranged. In other words, the interview as a whole. So, who owns the interview? There's no bright-line rule. That's why it's a good idea to get it in writing.  

Libel, Privacy, Publicity. Without a signed release, writers, publishers, and podcasters are vulnerable to being sued for defamation and, a lesser threat, invasion of privacy. 

Libel is a false statement about a living person (business or group) that harms their reputation. Truth is a complete defense to a libel claim. Where the plaintiff is a celebrity or public figure, the plaintiff must show that the false statement was made with reckless disregard for the truth (aka actual malice). While a celebrity or other public figure may have difficulty winning a libel suit because of the legal actual malice standard, written consent is the best defense. If you transcribe accurately and can locate the recording or release, you've taken significant steps to minimize the risk of a successful libel suit. 

 

The right of publicity is the right to control the commercial exploitation of a person's name, likeness, or voice. However, the use of a celebrity's persona without their permission is generally protected under the "newsworthy" exception, provided it's related to the use and is not expressly misleading. The "newsworthy" exception applies not just to hard news but also matters of legitimate interest to the public, including sports, entertainment, and politics. In some states, a deceased person's right of publicity survives their death and may pass by will or be assigned.  

If you don't obtain consent, the advantage of interviewing a celebrity is that the First Amendment makes it difficult for a celebrity to bring a successful claim for invasion of the right of publicity and libel.   

The gold standard is a well-drafted written release. Document signing apps like DocuSign and Adobe Sign are simple e-signature solutions. Today we're habituated to clicking OK boxes without much thought. So, getting a release signed need not be a burdensome task.

Fair Use
 

If the ownership issue can't be resolved conclusively, you may be able to roll out the fair use defense. But it's a partial solution. For example, it may not allow you to publish an entire interview.

Fair use allows writers, podcasters, and others to copy (usually) small portions of in-copyright works for socially productive purposes without permission. Finally, as a defense to copyright infringement, fair use allows courts to avoid rigid application of copyright law where the strict application would "stifle the very creativity which the law is designed to foster."

Unfortunately, fair use is not amendable to mechanical rules. The fair use test takes into consideration or weighs four factors: (a) the purpose and character of the use, including whether the use is primarily commercial; (b) the nature of the copyrighted work; (c) the amount and importance of what's used in relation to the original work; and (d) if the use supersedes a market for the original?

Media Liability Insurance

If the subject matter is sensitive and you don't have a signed release, given the murkiness of the law, media liability insurance is something to look into. It's a specialized form of insurance that covers claims of copyright and trademark infringement, invasion of privacy, defamation, and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas and negligent publication. Most of these policies also cover defending a lawsuit, including attorney's fees and court costs. 

 #  # # 

 

I Shall Be Released, performed by Bob Dylan
 

 

 

Image:  Parade of Horribles and Antiques, Portland, Maine

Photographer:  Unknown

Year:  1920

Credit: Main Historical Society

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

THE INFORMATION PROVIDED HERE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.

The Legal Consequences of Using Real People in Fiction

When Fiction & Reality Collide

Q: My main character is loosely based on a real person. I mean, that's who inspired me. I never identify him by name (he's my ex-friend) and I've made up 90% of the events that happen in the book. I'm worried after the book becomes successful, that he'll come back and try to take a stake in the millions.  What can I do to prevent this?  - GWB

A:  So you ask, “How do you discourage your friend from becoming a plaintiff after reading your novel and fictional portrayal of him?”

A basic understanding of libel law Libel is helpful.  Libel is defined as a false statement of fact “of and concerning” a living person that damages their reputation.  If you were to say that fiction, which describes a world that doesn't actually exist, was incapable of defaming a real person, it would be logical, but wrong. 

Happily for novelists (and The Weekly World News), when the model upon which a fictional character is based sues, generally, their claim doesn't get not survive summary judgment.  For a novel, or other fictional work, to be actionable, its detail must be convincing. The description of the fictional character must be so closely aligned with a real person that someone who knows that person would have no difficulty linking the two.  And, there must be an implicit belief that what the author said – notwithstanding her denials – was true.  What about a fictionalized autobiography?  If your memoir is fictionalized, but you don't make that clear to readers, there's no veil of fiction to hide behind for purposes of libel law. 

Despite the breathing space the First Amendment affords writers, not all libel-in-fiction lawsuits are resolved in favor of the author or their publisher partner.  For example, in 2009, in the “Red Hat Club" case, the plaintiff was awarded $100,000 in damages by a Georgia court for a fictional portrayal modeled on her.  The “original” claimed that her fictional double, falsely depicted in the bestselling novel as a sexually promiscuous alcoholic who drank on the job, defamed her.  From a libel defense perspective, this drawn-from-life portrayal failed, in part, because the author included personal characteristics that made the plaintiff recognizable, and mixed them with other traits that were false and defamatory, but, still believable.

Now back to your question.  Are you sure you never identify the real person who inspired your main character?  Aside from their name, can they be identified from their ethnicity, appearance, historical or other details found in your book, so that someone who knew them (or knew of them), could identify them and assume that the statements in your book were truthful?  While you may not identify your ex-friend by name, if you haven’t completely disguised the person, the likelihood of a successful claim for falsely portraying them increases.  Is your friend a public official or public figure?  If so, they have another hurdle to jump.  Unless he can prove by clear and convincing evidence that what you wrote was deliberately or recklessly false, there's a good chance -- but no guarantee -- you'll be excused from liability under what's known as the "Actual Malice Standard."

Merely changing the name of your friend isn’t enough.  You might consider transforming him beyond recognition.  Why?  Courts consider plausibility.  A broadly drawn caricature of your friend, which is difficult to reconcile with your ex-friend, can be an effective device to stave off a libel lawsuit. For example, Kim Pring, a former Ms. Wyoming, sued Penthouse over an article that described Ms. Pring’s ability to cause men to levitate by performing oral sex.  Initially, the Federal District Court found for Miss Pring, awarding her $26.5 million in damages.  On appeal, however, the Court of Appeals reversed the decision; holding that no reasonable person could believe that was described was actual facts.  Be outrageous.  If the reader accepts the novel as pure fiction, no libel will be found.  Parody – if done properly can take the chill out of free speech.  [Note the italicized “if”].   If done improperly, and the hypothetical reasonable reader thinks your failed parody conveys actual facts, the First Amendment may not be available to you.  "Obvious cues," like levitation or time travel can help telegraph what is First Amendment protected fiction from fact.   When it doubt, have the book vetted by a publishing attorney.        
     

Here’s a run-down of a few techniques that can minimize the chance of getting sued for libel in fiction:   (a) disclaim; (b) disassociate the doppelgänger from its real-life counterpart; (c) depict but do not disparage; and/or (d) as explained later, wait for the real-life person to die before publishing your fiction.  With regard to option (d), revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer. 

Disclaimers, while helpful, are by nature, self-serving.  While a disclaimer cannot insulate you or your publisher from a libel suit, it may support the defense that identification with the real person in your novel is unreasonable.   The words “A Novel” in the subtitle of your book is considered by some attorneys to be the best form of disclaimer.  In addition, a full disclaimer should appear on the reverse title page of your novel, or skillfully integrated into the introduction or preface of your book. 

Change the physical characteristics of your main character enough to disguise his identity.  The risk of being sued is further reduced if your main character is treated as a likable character rather than a vicious and unscrupulous evildoer.  While it is very tempting to retaliate against those who have injured us, if a character drawn from life isn’t likable, it is even more important to disguise their  identity.   

Create a Frankenstein monster.  Combine or clone several people’s physical traits and biographical facts, so no single person's actual DNA appears in your book.   If the work is not "of or concerning" an identifiable person, you have a complete defense to a libel lawsuit based on fictionalization.  Speaking of Frankenstein, the dead cannot be defamed.  As such, they make terrible plaintiffs -- but excellent targets for vengeful authors.  Why?  Under U.S. libel law, if the original is dead, s/he can't sue for libel.  If this last suggestion gives you an additional  reason to outlive your literary prey, consider it my gift to you.  And remember, he who laughs last, laughs best.  

 I would be remiss if I did not bring up three other legal horrors.  First, the law of defamation is not concerned with who you intended to target, but who gets struck by your barbed arrow.  What that means is unintentional defamation is actionable.  "Woops!"  is not a defense to libel.   If you shoot an arrow in the air, from a legal perspective, where the  arrow lands, not where you intended it to land, is what matters.  Lawyers who vet, and writers who write, need to watch out for same-named individuals who are falsely, but, believably, depicted. 

While publication of truthful information is generally considered a full defense to libel, private individuals can sue for highly offensive or embarrassing truths.  So, if your book goes too far and reveals intimate areas of a person’s life – sexuality, family life, medical procedures, and mental (in)capacity – you may invite a right of privacy claim.  Are there defenses?  Yes, but, that's beyond the scope of this post.   

The right of publicity involves the unauthorized use of a person’s name or likeness for commercial gain.  It is related to the right of privacy.  Fortunately for novelists, due to free speech considerations, courts historically construe publicity rights narrowly.  But, that’s the subject of another Q&A. 


If you feel uncomfortable with the legal minefield of libel, right of privacy and right of publicity law, consult a publishing attorney.  A publishing attorney can evaluate or vet your manuscript, and suggest ways to mitigate or avoid many of risks of writing about real people and actual events. 

Expect to pay a publishing attorney what you'd pay a good book doctor.  As they say, "An ounce of prevention is worth a pound of cure."  

Disclaimer:   This article discuss legal issues of general interest and is not designed to give any specific legal advice concerning any specific circumstances.   Libel law is fact specific.  Further, is no single body of  law applies.  Today, information travels far and wide.  Many countries do not recognize the protections we give authors and publishers.  It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

Resources

Smith v. Stewart (Red Hat Club Case)
Pring v. Penthouse
Bindrim v. Mitchell (case ended badly for the author) 
Carter-Clark v. Random House (Court of Appeals)
Carter-Clark v. Random House (Supreme Court)


Libel in Fiction Quotes

"I don't get hurt or bleed; hair doesn't muss, it's one of the advantages of being imaginary." 
    - Ted Baxter in the The Purple Rose of Cairo

"All literature is gossip."  - Truman Capote

"Novelists are inspired gossips." 
    - Margaret Drabble

“But we are the sum of all the moments of our lives---all that is ours is in them: we cannot escape or conceal it. If the writer has used the clay of life to make his book, he has only used what all men must, what none can keep from using. Fiction is not fact, but fiction is fact selected and understood, fiction is fact arranged and charged with purpose."
    - Thomas Wolfe's Preface to Look Homeward Angel

 

 

Related Blog Posts

 

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors