What rights does one have to license their autobiography?

Question

If any such right is based on a copy right theory, obviously, that would require first the writing of an autobiography. Is there a right that you may reserve relating to your story?

Answer 1

You've tagged this as both united-states and european-union, so this answer is about the United States.

Before you can "license" someone to do something, you must first have the legal right to prevent them from doing it. Otherwise, your purported "license" is just a worthless piece of paper (technically, you might be able to sell those pieces of paper notwithstanding their lack of validity, so I suppose they wouldn't be completely worthless). If we imagine that the subject of a biography or autobiography wants to control the publication of that biography, there are a number of legal grounds that might be cited, depending on the circumstances:

• Copyright: The person who actually wrote the biography (who may or may not be the subject!) can prevent others from making copies or derivative works of it, as well as several other rights enumerated in 17 USC 106. Most publication agreements involve signing an exclusive license with the publisher. If the author has not signed such a license, then the biography is not going to be published in the first place. Regardless, copyright only exists once the work is "fixed in a tangible medium" (e.g. saved to a hard drive, written down on a piece of paper, etc.). If it's still "in your head," then you don't own anything. If the subject and author are different people, then the subject does not have any rights here at all; copyright belongs exclusively to the author. Furthermore, copyright only protects the individual work. It does not prevent someone else from writing a different biography from scratch, so long as this second biography is original and does not reuse any content from the first biography. The underlying facts belong to no one.

• Privacy rights are generally handled as a tort under state law. If the subject is a public figure (i.e. the sort of person who's likely to have a biography written about them) then privacy rights tend to be rather limited. However, they are not nonexistent, and invasion-of-privacy claims are occasionally raised, usually in cases where highly personal, sensitive information is disclosed against the will of the subject. This may also become relevant if the author of the biography obtains information in an illegal fashion such as by hacking or physical trespass. However, in most cases, the content would need to be pretty far beyond the pale before this would have a realistic chance of succeeding.

• Personality rights are usually considered an extension or variety of privacy rights. In general, they allow the subject to prevent their name from being associated with a commercial endeavor without their permission. However, it is likely that the First Amendment would bar the application of personality rights to a biography, unless the publisher tried to misrepresent a ghostwritten work as an autobiography without the consent of the subject.

• Libel is a tort under state law. Libel laws in the US are extremely limited, and the subject would need to establish at least all of the following in order to succeed (or else the claim is barred by the First Amendment):

  • The defendant published a statement.
  • A reasonable person would interpret that statement as factual (and not an opinion, puffery, etc.).
  • The statement is materially false (i.e. the "gist or sting" of the statement is false, regardless of whether it is technically 100% accurate).
  • The statement harmed the reputation of the plaintiff.
  • The defendant knew the statement was false, or made no serious effort to verify it ("actual malice"). Not required unless the plaintiff is a public figure, but the subject of a biography probably will be a public figure.

  There may be additional requirements depending on the state, and the defendant will probably try to file an anti-SLAPP motion if state law allows for it.

Of these four rights, copyright is by far the most commonly "licensed," followed by personality rights. Nobody gives out licenses to commit libel or invade their privacy. That leaves us with two ways of licensing your (auto)biography:

• Actually write it yourself, and sell it to a publishing company. You will give them a copyright license as part of the process (in exchange for royalties and an advance).
• Convince a publishing company to hire a ghostwriter for you, and then license your likeness to them. The public will be told that you "wrote" the book, and you will promote it in exactly the same way as if you did write it.

Neither of these options will prevent someone else from coming along and writing their own biography about you, of course.