First Amendment Concerns
American jurisprudence is often a balancing act between competing rights. At one end of the scale you will find the rights to privacy and publicity and at the other end you have the First Amendment guaranteeing freedom of the press and freedom of speech upon which writers, authors, journalists, editors, and publishers frequently rely. Not infrequently, a conflict arises between the First Amendment and either statutory law or common law that protects the right to privacy and right of publicity.
Two Exceptions
Responding to these contending rights, in deference to the First Amendment the courts have created two exceptions to a person's right of publicity. The first exemption is the “newsworthiness” exception that provides a person cannot object to the use of his name or likeness so long as the following conditions are satisfied:
The content involves a matter of general public interest.
There is nothing false or misleading.
There is a connection between the person and the subject matter.
The material is not a pretense for advertising.
If the book is a biography and not authorized by the subject, there must be a statement indicating that it is an “unauthorized” biography.
Common law is the result of a series of decisions made by the courts on a specific issue. Statutory laws are enacted by the legislative bodies at the local, state, and federal levels. Constitutional law emanates from the federal Constitution and the constitutions of the states as interpreted by the courts and takes precedence over statutory and common law.
The second exception is the “incidental use” exemption, which applies when a person's name or depiction is merely incidental to a privileged use. For example, in a biography of a celebrity, mentioning the names of actors who played roles alongside the subject of the book is an incidental use.
