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Writing a book or song about a real person

Region: Ontario Answer # 167

There are many legal issues to consider when writing a book or song about a real person, without their permission.

First, you can do it but you must be careful about what you say or allege. For example, you may be successfully sued for defamation if you allege criminal or moral wrongdoing by a person and cannot prove it in court.

The law of defamation in Canada does allow anyone to safely publish information about others so long as they can call upon one of several defences. For instance, there is the defence of “justification” or truth. ┬áBut proving information is true in a court may be harder than you imagined. Second, there is the defence of “fair comment,” which allows a person to state a series of provable facts and then make an honest and fair commentary on those facts. Regardless, there are often serious financial consequences if someone loses a defamation lawsuit in addition to which they are expensive to litigate.

Another legal consideration is whether the real person might be seen as endorsing some commercial venture associated with the book or song. Using a person’s image or name for what is essentially a commercial, promotional or advertising purpose is basically stating the person endorses your product. If he or she didn’t authorize it, an action for “misappropriation of personality” can be pursued in the civil courts.

Finally, does the real person have to be alive? For some famous people, there is an argument to be made that wrongly using their name in association with an unapproved work may endanger the financial viability of their estate or some ongoing business.

When a real person is the subject of a creative work, it is often best to consult a lawyer with experience in entertainment law.


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