Co-author Gerald M. Levine

The dead are beyond suing but wariness about the living in recollecting the past should not be discounted. Although intellectual property rights (copyright and trademark) may be asserted by an Estate depending on the law of the state in which the deceased died allegations of invasion of privacy and injuring a deceased’s reputation by disclosing past conduct is not a descendable right to survivors. The dead cannot and the living are barred from pursuing such claims. However, not an infrequent question is, What should not be said? Part of the answer lies in the genre, whether the writing is a memoir or a work of reportage. You can disclose about the dead what you personally experienced and to a lesser extent what others have said about him or her, in fact or fiction. Republication of defamatory statements that include the living are actionable. An author should be cautious about disclosing facts of a personal nature that have not otherwise been publicly disclosed about any living person learned third-hand. Statements that cast the living in a false light or disclose private information expose an author to potential liability for invasion or privacy and defamation.

The Wisconsin privacy statute, for example, defines invasion of privacy as any of the following:

(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass….
(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person...

Other States have different models of legislation, but the Wisconsin statute captures the essence of the tort in those States that recognize a similar privacy right. New York does not recognize a common law right of privacy, but an aggrieved plaintiff has a privacy cause of action for exploiting for commercial gain any living person’s “name, portrait or picture” for advertising or trade purposes “without having first obtained the written consent of such person, or if a minor of his or her parent or guardian.” Under California’s Constitution “the right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion.”

A New Jersey case from the mid-1980’s, Fasching v. Kallinger, 211 N.J. Super. 26 (1986) is informative on these issues. The author and her publisher (among other defendants) were sued by a murdered victim’s family for both invasion of privacy and defamation. The book is a study of the murderer’s life course, his descent into a personal hallucinatory “Hell” and ultimately to the murders for which he was convicted. The trial court concluded and the appellate court affirmed that the right of privacy dies with the victim. “The right of privacy [the court held] is a personal right and cannot, as a general rule, be asserted by anyone other than the person whose privacy is invaded.” This precludes recovery by surviving relatives for publicity concerning a deceased person.

The rule is the same with defamation. The trial court in Fasching explained that “where the decedent is alleged to have been defamed, an action for defamation is personal.” The Judge continued, “[o]ne who publishes defamatory material concerning a deceased person is not liable either to the estate of the person or to his decedents or relatives.” Under common law even an action for defamation brought while the plaintiff was alive would not have survived death. Current survival statutes now authorize a decedent’s representative to pursue claims accruing during his lifetime.

So, what is a memoir author to do? Do not worry over the dead, clearly be prudent in the identification of actors and selection of incidents, careful in the manner in which you represent your subjects and circumspect in what you disclose about the living.