Episode 276 - Navigating Legal Risk in Memoir with Kathryn Goldman
25 February 2025
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Kathryn Goldman discusses NAVIGATING LEGAL RISK IN MEMOIR, including the delicate balance memoir writers must strike to avoid defamation, invasion of privacy, and intentional infliction of emotional distress. Kathryn explains the legal definitions and elements of these terms and offers advice on minimizing risk, emphasizing the importance of factual accuracy and distinguishing between statements of fact and opinion. We also discuss the complexities of protecting oneself when writing about identifiable real-life figures and the considerations authors must take into account when deciding whether to fictionalize elements of their stories. Finally, Kathryn touches on the implications of using real places and song lyrics in memoirs and cautions against seeking input from real-life subjects included in the memoir. She concludes with the potential benefits of including disclaimers to manage reader expectations and reduce legal exposure.
Kathryn Goldman is an intellectual property attorney who focuses her practice on the protection and enforcement of copyright and trademark rights for businesses and individuals. She represents creative professionals, writers, artists, photographers, and innovative entrepreneurs. Leaving 30 years in litigation behind her, Kathryn now focuses her work on keeping creatives out of court so they can create more work. Kathryn is also the Legal Advisor to the Alliance of Independent Authors.
Kathryn Goldman is an intellectual property attorney who focuses her practice on the protection and enforcement of copyright and trademark rights for businesses and individuals. She represents creative professionals, writers, artists, photographers, and innovative entrepreneurs. Leaving 30 years in litigation behind her, Kathryn now focuses her work on keeping creatives out of court so they can create more work. Kathryn is also the Legal Advisor to the Alliance of Independent Authors.
Episode Links
Kathryn's Links:
https://creativelawcenter.com/
https://www.linkedin.com/in/kathryn-goldman-b9948211/
https://www.instagram.com/kathryngoldman/
https://creativelawcenter.com/register/memoir-how-to-minimize-risk/ (paid course)
Show Notes:
AI Update US Copyright Office Report on Copyrightability - https://www.youtube.com/watch?v=dr_LnJgDTdU&t=1s
https://creativelawcenter.com/
https://www.linkedin.com/in/kathryn-goldman-b9948211/
https://www.instagram.com/kathryngoldman/
https://creativelawcenter.com/register/memoir-how-to-minimize-risk/ (paid course)
Show Notes:
AI Update US Copyright Office Report on Copyrightability - https://www.youtube.com/watch?v=dr_LnJgDTdU&t=1s
Summary
This week on The Indy Author Podcast, Matty Dalrymple talks with Kathryn Goldman about legal considerations for memoir writers and authors of nonfiction and creative fiction. Kathryn, an intellectual property attorney specializing in intellectual property and copyright, offers practical advice for minimizing legal risks associated with defamation, invasion of privacy, and the intentional infliction of emotional distress.
Kathryn explains how the legal definitions of terms like defamation can differ from common understanding. Defamation, she notes, requires a false statement of fact about another person, made to a third party, with some element of fault, and resulting in damage. She emphasizes the importance of truth and opinion in mitigating defamation claims, suggesting that writers should stick to provable truths or clearly frame content as opinion.
Invasion of privacy involves scenarios where private information is shared without consent. Kathryn describes different types, including "false light" scenarios, and emphasizes the importance of protecting private information. She also discusses the concept of intentional infliction of emotional distress, where conduct aimed at causing distress must be extreme, outrageous, and result in severe distress.
The conversation highlights the challenges memoir writers face when sharing stories involving real people. Kathryn advises that, while you can control how you present your story, you can't control others' reactions or potential legal claims. Writers should be mindful of how they depict real individuals and consider fictionalizing names, places, and recognizable details. Her advice extends to understanding local laws, as legal matters vary by state and country.
Matty and Kathryn explore different motivations for writing memoirs, from personal therapy to social justice. Regardless of intent, Kathryn stresses the importance of careful planning and understanding the risks involved. She emphasizes that happy lives don't typically make for compelling memoirs, which often center around transformative challenges.
The discussion also touches on the importance of setting expectations with disclaimers, noting that disclaimers can help frame a memoir as fictionalized or subjective, thereby reducing legal risks. However, when claiming a creative embellishment, accuracy and factual presentation should not be compromised.
The episode further discusses fair use, particularly in relation to song lyrics and copyrights. Kathryn advises against using song lyrics without permission, citing the complex licensing infrastructure and the importance of respecting the original creator's work.
To conclude, Kathryn cautions writers to weigh the legal risks in memoir writing and discusses strategies for minimizing potential legal issues while preserving the authenticity and impact of their stories. By seeking counsel and carefully considering the implications of their narrative choices, memoirists can protect themselves legally while still sharing meaningful stories. For more resources, Kathryn directs listeners to CreativeLawCenter.com.
This episode of The Indy Author Podcast offers valuable insights for anyone considering writing a memoir, with practical advice on legal issues and thoughtful reflection on the personal motivations behind memoir writing.
Kathryn explains how the legal definitions of terms like defamation can differ from common understanding. Defamation, she notes, requires a false statement of fact about another person, made to a third party, with some element of fault, and resulting in damage. She emphasizes the importance of truth and opinion in mitigating defamation claims, suggesting that writers should stick to provable truths or clearly frame content as opinion.
Invasion of privacy involves scenarios where private information is shared without consent. Kathryn describes different types, including "false light" scenarios, and emphasizes the importance of protecting private information. She also discusses the concept of intentional infliction of emotional distress, where conduct aimed at causing distress must be extreme, outrageous, and result in severe distress.
The conversation highlights the challenges memoir writers face when sharing stories involving real people. Kathryn advises that, while you can control how you present your story, you can't control others' reactions or potential legal claims. Writers should be mindful of how they depict real individuals and consider fictionalizing names, places, and recognizable details. Her advice extends to understanding local laws, as legal matters vary by state and country.
Matty and Kathryn explore different motivations for writing memoirs, from personal therapy to social justice. Regardless of intent, Kathryn stresses the importance of careful planning and understanding the risks involved. She emphasizes that happy lives don't typically make for compelling memoirs, which often center around transformative challenges.
The discussion also touches on the importance of setting expectations with disclaimers, noting that disclaimers can help frame a memoir as fictionalized or subjective, thereby reducing legal risks. However, when claiming a creative embellishment, accuracy and factual presentation should not be compromised.
The episode further discusses fair use, particularly in relation to song lyrics and copyrights. Kathryn advises against using song lyrics without permission, citing the complex licensing infrastructure and the importance of respecting the original creator's work.
To conclude, Kathryn cautions writers to weigh the legal risks in memoir writing and discusses strategies for minimizing potential legal issues while preserving the authenticity and impact of their stories. By seeking counsel and carefully considering the implications of their narrative choices, memoirists can protect themselves legally while still sharing meaningful stories. For more resources, Kathryn directs listeners to CreativeLawCenter.com.
This episode of The Indy Author Podcast offers valuable insights for anyone considering writing a memoir, with practical advice on legal issues and thoughtful reflection on the personal motivations behind memoir writing.
Transcript
This transcript has been edited for readability; please keep in mind that only the audio or video recordings of the conversation will reflect the word-for-word content of the conversation.
[00:00:00] Matty: Hello, and welcome to The Indie Author Podcast. Today, my guest is Kathryn Goldman. Hey, Kathryn, how are you doing?
[00:00:07] Kathryn: I'm fine, Matty. How are you?
[00:00:09] Matty: I'm doing great, thank you. To give our listeners and viewers a little background on you, Kathryn Goldman is an intellectual property attorney who focuses her practice on protecting and enforcing copyright and trademark rights for businesses and individuals. She represents creative professionals, including writers, artists, photographers, and innovative entrepreneurs.
Leaving 30 years of litigation behind, Kathryn now focuses on keeping creatives out of court so they can produce more work. She is also the legal advisor for the Alliance of Independent Authors, which is how I met her. I invited Kathryn on the podcast to discuss how to minimize legal risk when writing memoir.
Kathryn, you sent me a note in preparation for our conversation, which I liked a lot. You wrote: "Memoir can involve a delicate walk through the minefields of defamation, invasion of privacy, and intentional infliction of emotional distress." We'll talk about how to navigate these treacherous areas of law so a writer can tell their truth while still protecting themselves.
[00:01:12] One question I had for you is: to what extent will the information you share be applicable to nonfiction beyond memoir, or is it quite specific to memoir?
[00:01:47] Kathryn: Oh, it can be generalized to nonfiction broadly. These legal considerations apply to all types of nonfiction writing. They also apply to fiction—especially historical fiction—when real individuals and events are incorporated into the story.
[00:02:09] Matty: Perfect. I thought a good way to start would be to clarify some of the terms we used—defamation, invasion of privacy, and intentional infliction of emotional distress. Sometimes, the legal definitions of these terms are more nuanced than general understanding.
Can you explain, for example, what defamation means?
[00:02:09] Kathryn: Okay, so there are two kinds of defamation: defamation in writing and spoken defamation. Spoken defamation is slander, but we’re not going to discuss slander because we’re talking about written work, which is libel.
The elements of defamation are as follows: libel is a false statement of fact about another person that you communicate to a third party, not just to that person. There also has to be some element of fault on the part of the person who writes or publishes the statement.
You either knew it was false or failed to check whether it was true before spreading it. Additionally, the person about whom the defamatory statement is made must suffer some form of damage.
Damage could include harm to reputation, lost business, or even physical illness caused by severe defamation. These are the necessary elements of defamation, and all four must be present before a claim can be made.
So that's defamation. Do you want to take them one at a time?
[00:03:41] Matty: Yeah, how about invasion of privacy? That was another topic we wanted to discuss.
[00:03:44] Kathryn: Okay, so invasion of privacy—think of it as intrusion upon seclusion. You are in a private space, like your bedroom, which is common in memoirs. You have an expectation of privacy, but someone—a peeping Tom, for example, or even someone you invite into that space—violates that privacy and then shares it with the world. That is an invasion of privacy. The public has no reason or right to know those private details.
There are other types of invasion of privacy. One is appropriating someone’s name or likeness, which we see a lot in the college sports world right now—NIL, or name, image, and likeness. That is a form of invasion of privacy.
Then there’s false light invasion of privacy. This happens when you depict someone in a way that casts them in a misleading light. For example, if you write that someone was in the middle of a bar brawl and imply that they started it or were involved when they weren’t, that would be false light.
So those are different types of invasion of privacy.
[00:05:25] Matty: And the last term we mentioned was intentional infliction of emotional distress.
[00:05:30] Kathryn: Right. Intentional infliction of emotional distress occurs when someone engages in extreme and outrageous conduct with the intent to cause another person distress. The conduct must be severe enough to cause significant emotional harm, and in some cases, the law requires a physical manifestation of distress.
For example, if someone intentionally lies about another person to cause them distress, that could be both defamation and intentional infliction of emotional distress.
One important point to remember is that all of these laws are state-based. This means the requirements for a claim vary from state to state and country to country. Some states or countries may not even recognize intentional infliction of emotional distress as a valid legal claim.
So, if you're concerned about this issue, you need to check your local laws and consult with a local attorney to determine whether it applies in your situation.
[00:07:11] Matty: I wanted to start with memoir because that’s an obvious example. Unless you’re writing about your time alone on a desert island, memoirs involve interactions with other people. They often pull writers in two directions: staying true to their experience while also being mindful of the legal risks you mentioned.
How do you advise memoir writers to avoid defamation claims when sharing stories about real people?
[00:07:49] Kathryn: The first thing to understand is that you cannot control how other people will react to your work. Even if you take every precaution to ensure you’re not defaming anyone, you cannot predict how they will interpret your writing or what actions they might take.
You can be as careful and reasonable as possible and still have a claim made against you. However, if you are prudent and take appropriate care, you will have a strong defense if a claim arises.
That said, when you’re concerned about defamation, remember that the first element of defamation is that it must be a false statement of fact.
If what you write is true and objectively provable, it cannot be defamation.
[00:08:50] Kathryn: The other thing you can do is frame your characterization of the situation, the person, or the event as an opinion. If you are expressing an opinion, you are not stating a fact.
For example, if you were to write a scene—memoir is often in the first person—you could say, It appeared to me as though she burned down that house on purpose. Or, When I look at that, it makes me think of… (using a simile or metaphor). You are framing the event as your opinion rather than a fact.
By doing that, you are building a defense against defamation. The primary defenses to defamation are truth—an objectively provable truth—or opinion. Those are two solid ways to prevent a defamation claim against you.
That said, right from the start, there’s also the option of fictionalizing the person. You can avoid identifying them by changing details—altering the town where events happen, modifying the setting, changing the person’s description, giving them a different occupation. You can alter these details entirely while still telling your story and conveying how that person made you feel and impacted your life—without identifying them.
That’s a decision you make before you even put pen to paper.
[00:11:22] Matty: Yeah, it seems like some memoirists are clear with their readers that they’re not reproducing interactions with particular people. For example, some memoirists I’ve spoken to say they combine multiple people into a single character—maybe they had two bad bosses and want to tell a story about dealing with a bad boss, so they merge those two into one. The reader understands they’re not going to find that named bad boss on LinkedIn or anything like that.
It seems really tricky. I was thinking about this in the context of creative nonfiction—when someone tells a story about a celebrity or a historical figure and puts words in that person’s mouth. For example, The Crown followed factual stories about Queen Elizabeth and her family but took great liberties with behind-the-scenes action and dialogue. That’s more of an exposé. Are there different legal approaches to those two types of works?
[00:12:43] Kathryn: Yes. When you're writing something like The Crown, there has to be a heavy legal vetting of the manuscript or script. That would involve applying U.K. law—so you’d have to analyze the U.K.'s defamation laws. Those are famous individuals, and the law in the U.S. is different for public figures compared to private individuals. It is much harder to defame a public figure than a private individual.
You need to analyze the manuscript and go through it to see what could potentially sustain a claim. But the legal elements will be the same for both memoir and historical fiction or creative nonfiction. Once you determine which law applies, the legal analysis will be the same.
[00:14:09] Matty: If someone is writing about people in their own life and comes to you for advice, how do you guide them on whether to name names or fictionalize details like names, places, or characteristics? Are there specific criteria you use to determine that?
[00:14:31] Kathryn: Well, you gave the example of a bad boss. That’s easy to fictionalize—you can change the company, job description, and other details. But if you’re writing about your abusive stepfather and using your real name as the author, that person is going to be identifiable. You can’t fictionalize that.
Then the question becomes—do you write under a pseudonym? If you are concerned that your stepfather might sue you and you write under a pseudonym, will you be able to talk about your book publicly? When writing a memoir, you must focus on your why. There are many reasons to write a memoir.
On my website, CreativeLawCenter.com, I have a workshop replay where I interviewed two memoirists. They discussed whether to identify themselves and, by extension, their family members or whether to use a pseudonym and the implications of that choice.
If your reason for writing is to share your story with others in similar situations and to speak freely about it, then you really can’t use a pseudonym. Some situations can’t be fictionalized. You have to decide at the outset what risks you are willing to take.
[00:16:47] Matty: That also made me think about another situation. Suppose someone writes about an abusive experience and wants to follow the book with public appearances to support others in similar situations. Legally, does it make a difference if they don’t name the bad actors in their book or talks, but those people could still be identified if someone did some research?
[00:17:24] Kathryn: If the person is identifiable in the book, that can lead to legal issues. Then you have to weigh whether that person—who hasn’t been named but is described and connected to the author—would want to out themselves by filing a lawsuit, which is a public record accessible to everyone. That lawsuit would essentially declare, I am the stepfather accused of this abuse, and I didn’t do it. Often, when claims like that are made, they draw more attention to the book and can drive book sales.
So you have to assess: will this person take legal action if they haven’t been openly named? That depends on your knowledge of the person, their risk tolerance for exposure, and your own risk tolerance for facing a legal claim. All of these factors go into the calculation of how to approach memoir writing.
[00:19:09] Matty: It seems like so much of this comes back to the underlying motivation for writing the book. Most of the time when I talk to writers, their motivations are positive—they have a story they need to tell, they want to share their experience, or they have advice that could help people. But in some cases, there’s a less admirable motivation—wanting to pay someone back for something. If revenge is the driver, the normal publishing and writing considerations may not apply.
[00:19:54] Kathryn: That’s an interesting point. Revenge. I’ve worked with many memoirists and reviewed many manuscripts for legal clearance, and I can safely say that none of them have admitted to revenge as their motivation. Most say they want to expose an unjust situation so that others in similar circumstances know they’re not alone. Or they want to share mistakes they’ve made so others don’t repeat them. That said, revenge-driven memoirs do exist.
This brings up another reason many people write memoirs: personal therapy. And sometimes, that means a memoir shouldn’t be published. Memoirs about happy lives are not usually that interesting. The most compelling memoirs involve transformation—something tragic or life-changing happens, and the person emerges changed. So when writing a memoir, you must ask: Why am I writing this? What is my goal? If the motivation is therapeutic, maybe the memoir is best kept private.
[00:22:39] Matty: Yeah, I've spoken to several memoirists who have said exactly that—the initial drafting was a therapeutic effort. They had something they wanted to get off their chest, to get out of their heart, to put onto paper, to purge themselves of it. Then they set that aside and said, Okay, now I want to write something shareable. And the final product looked quite different.
For example, they may have written their whole experience out exactly as it occurred, but that wasn’t an interesting way to present it to a reader. So they shortened time frames, cut out uneventful periods, and focused intensively on one key moment—maybe one crucial hour in their life takes up more of the memoir than uneventful years.
I like the idea of separating private writing from public writing. And among all the other craft considerations that go into revising that private draft into a shareable work, factoring in legal considerations is important as well.
[00:23:38] Kathryn: Right. And then when you’re doing that, the question becomes, Do you fictionalize it completely?Because the crux of the story—the theme, the event, the transformation—can still be true to your experience, but everything else can be fictionalized. The characters, the place, the setting—everything can be completely different, and you can still tell your story. And once you do that, you significantly minimize the risk involved.
So again, it goes back to: What is your why? Why are you doing it?
[00:24:14] Matty: Well, that whole question of truth versus embellishment—if it’s completely fictionalized, that takes care of a lot of concerns. But if you decide to present it as a memoir, let’s say you grew up in a small town, and that town is a very important part of the experience. You want to name it, and people will be able to identify individuals in the story. Since memoir often involves a level of creative embellishment, how do you balance storytelling with legal obligations to avoid misrepresentation?
[00:24:49] Kathryn: Well, if you’re going to name the small town and include real people from that town, you need to stick to objective truths. Objective truths or frame things as your opinion. That’s how you’ll have to tell that story. And then, beyond the legal issues, there’s the reality that you might have the whole town in an uproar. That’s not a legal question, but it’s something to consider.
Lawsuits are no fun. You have to decide if this is something you’re willing to go through. Is it really important to name that small town? Again, I’ll point you to that interview I did with two memoirists who spoke very openly about why they made the choices they did in writing their stories. One of them went so far as to help sponsor legislation in his home state. He was the victim of abuse as a child and worked to get a law passed to address that issue.
That’s a big why. You have to think about how much of your life you’re willing to dedicate to this memoir—even after it’s published.
[00:26:45] Matty: Yeah, I like the idea of framing it that way. It also suggests another consideration—we talked about intentional infliction of emotional distress. But what about unintentional infliction of emotional distress? A writer might put something in their book that they don’t think will upset anyone, but then someone reads it and takes offense. Do you have advice on how people can assess or avoid unintentional infliction of emotional distress?
[00:27:12] Kathryn: That’s interesting because it ties back to something I said earlier—you can’t control how someone else is going to react. You also can’t anticipate whether they’ll file a claim. I’ve had many authors come to me and say, Nothing I wrote is bad! Everyone is portrayed in a good light! And I have to remind them, That’s your perspective. But you’re not the person reading it. You don’t know what their circumstances are, so you can’t predict how they’ll respond. That’s unintentional, but it can still create problems. That kind of reaction is less likely to lead to a legal claim and more likely to damage relationships.
[00:28:15] Matty: That reminds me of my corporate days when coworkers would ask for input on their performance appraisals. Sometimes, even if I had a great working relationship with someone and appreciated their contributions, I’d still send my feedback to them first before submitting it—just to make sure I wasn’t saying anything they didn’t want to be said. I’d ask, Is there anything here you wouldn’t want your boss to read?
I can imagine a similar approach with memoir—looping back with the real people involved and saying, Here’s a chapter about an interaction we had—what do you think? Not necessarily promising to change anything, but at least hearing their perspective. What are your thoughts on that, based on your work with memoirists?
[00:29:39] Kathryn: I don’t like it at all. I do not recommend sending portions of a manuscript to a third party for review. Even if you say, I’m not promising to make changes, you are still suggesting that their opinion matters. So why are you sending it? And if you don’t say that, are you giving them editorial control over your manuscript? As a general rule, I don’t like it.
I’ve seen cases where authors have asked for permission to use real places or details in their memoirs. That’s one thing. But once you send a written request for approval, what happens when they say no? Are you willing to rewrite the entire book?
I’ve also had authors send parts of their manuscript to people from their past—people they hadn’t spoken to in 25 years—just to give them a heads-up. And it backfired. The recipient was upset, contacted the publisher, contacted the author’s spouse—it became a problem. So I don’t advise it.
You’re better off focusing on what you can control. Analyze the risks, minimize them as much as possible, and decide what level of risk you’re comfortable with. But I would keep it in-house.
[00:31:56] Matty: Yeah, I can imagine in that scenario with the seminary, it makes sense that it would be a real legal risk to use the name without permission. If they had said no, do you think it would have been sufficient for the author to just change the name of the seminary?
[00:32:17] Kathryn: Change the name, change the location, change the description, change the hierarchy of power—you’d have to rewrite it. You also have to be careful when using real places in your stories, especially in fiction. In nonfiction, real events took place in real places, so you have more freedom to use them.
[00:32:42] Matty: But in fiction, if you put terrible events in a real place, the owners of that place could be very upset. You have to be careful about that. Many of my novels are set in the Philadelphia area, and I went to Penn. I was originally going to use Penn as a setting, but I thought some nefarious things were going to happen there, so I changed it to “William Penn University.”
I think everyone knows what I was getting at, and in the end, nothing bad actually happens there, but I still changed it. Sometimes you just want the freedom to move things around, even if it’s not something negative—like if I wanted a cafeteria in a building that doesn’t have one. I don’t want to be tied to reality.
[00:33:42] Kathryn: Right, and in the grand scheme, does it matter where it happens? You’re writing about a university with ivy-covered walls—it doesn’t have to be that university. As a creative writer, you’re inspired by Penn, but you can take that feeling and create something new.
[00:34:17] Matty: Exactly. I wanted to talk about a different topic: fair use.
A lot of people reflect on their lives and think of certain songs or lyrics that were meaningful to them. They want to include those lyrics in their books. What’s your advice for people considering that?
[00:34:39] Kathryn: Don’t. You can use the title of the song. You can use the artist’s name. You can describe the feeling the song gave you. But you cannot use the lyrics.
There is no reliable law on fair use of song lyrics or poetry that would protect an author at this time. Some legal arguments suggest it could be fair use, but look at it from the perspective of the songwriter or poet. If you’ve written just a few short lines that move millions of people, those lines are the heart and soul of your work. Why should someone be allowed to take those lines and put them into their book without permission?
If you think about it that way, it makes sense why you can’t use lyrics—you’d be taking the very essence of the song. And on top of that, there’s a licensing system in place where you can request permission and pay for the right to use the lyrics. That’s my current wisdom on the subject.
[00:36:33] Matty: Yeah, early on, I was interested in using a passage from The Sword in the Stone by T. H. White. Not only did it take forever to track down who actually owned the copyright—it had passed from one company to another over the years—but when I finally got an answer, I learned that the cost wasn’t unreasonable, but it was limited to a certain number of books.
For example, they might have said, You can use this for up to 1,000 copies, but if you sell more, you have to renew the license. And I thought, How do you even track that? I didn’t want to spend my life keeping tabs on that permission. They were willing to negotiate, but I ended up not using it.
[00:37:36] Kathryn: That’s interesting. I worked with a documentary filmmaker who wanted to use a Sade song in the background of his film. He went to great lengths to contact her directly, and because the subject was something she cared about, she gave permission. So it’s possible.
I’ve also had authors approach estates to request permission to use quotes from a celebrity’s journals or lyrics from a song, and they’ve received permission. So sometimes it’s worth reaching out and explaining the project directly. Bypassing the standard licensing system and going straight to the source can work.
[00:39:01] Matty: So it’s going to be a case-by-case situation. But just to be clear—are you saying that you cannot quote lyrics without permission?
[00:39:26] Kathryn: Correct. You need permission. And when you get that permission, it will take a very specific form. The copyright page will need to include a formal acknowledgment stating that the lyrics from [Song Name] by [Artist Name] are copyrighted and used with permission. When it comes to quoting longer works, fair use is determined case by case.
And a recent Supreme Court case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, added a new layer to fair use: if a work is available for licensing—meaning there’s an existing system to pay for the right to use it—it will be harder to claim fair use.
[00:41:02] Matty: That’s a great point.
One final thing I’d like to discuss is disclaimers. How much protection does a disclaimer at the beginning of a book offer?
[00:41:14] Kathryn: Disclaimers can reduce risk. They can warn the reader about the limits of what you’re writing. For example, if you’ve created a composite character—like merging two bad bosses into one—you can explain that in the disclaimer. Some courts give disclaimers significant weight. There isn’t a lot of litigation on this, but disclaimers help set the stage for how the reader perceives the book.
[00:41:45] Matty: That’s really helpful.
Kathryn, thank you so much for sharing your insights on minimizing legal risks in memoir and other types of writing. Where can people find more about you and your work?
[00:41:14] Kathryn: Please visit me at CreativeLawCenter.com. I offer extensive resources for creative professionals, including writers, artists, and entrepreneurs who are building businesses around their creative work.
I cover topics like copyright, trademarks, business development, and internet law. I also have a membership program where I provide ongoing support. So please stop by—I’d love to connect.
[00:41:45] Matty: Sounds great. Thanks again!
[00:41:47] Kathryn: You’re welcome! Thanks for having me, Matty.
[00:00:00] Matty: Hello, and welcome to The Indie Author Podcast. Today, my guest is Kathryn Goldman. Hey, Kathryn, how are you doing?
[00:00:07] Kathryn: I'm fine, Matty. How are you?
[00:00:09] Matty: I'm doing great, thank you. To give our listeners and viewers a little background on you, Kathryn Goldman is an intellectual property attorney who focuses her practice on protecting and enforcing copyright and trademark rights for businesses and individuals. She represents creative professionals, including writers, artists, photographers, and innovative entrepreneurs.
Leaving 30 years of litigation behind, Kathryn now focuses on keeping creatives out of court so they can produce more work. She is also the legal advisor for the Alliance of Independent Authors, which is how I met her. I invited Kathryn on the podcast to discuss how to minimize legal risk when writing memoir.
Kathryn, you sent me a note in preparation for our conversation, which I liked a lot. You wrote: "Memoir can involve a delicate walk through the minefields of defamation, invasion of privacy, and intentional infliction of emotional distress." We'll talk about how to navigate these treacherous areas of law so a writer can tell their truth while still protecting themselves.
[00:01:12] One question I had for you is: to what extent will the information you share be applicable to nonfiction beyond memoir, or is it quite specific to memoir?
[00:01:47] Kathryn: Oh, it can be generalized to nonfiction broadly. These legal considerations apply to all types of nonfiction writing. They also apply to fiction—especially historical fiction—when real individuals and events are incorporated into the story.
[00:02:09] Matty: Perfect. I thought a good way to start would be to clarify some of the terms we used—defamation, invasion of privacy, and intentional infliction of emotional distress. Sometimes, the legal definitions of these terms are more nuanced than general understanding.
Can you explain, for example, what defamation means?
[00:02:09] Kathryn: Okay, so there are two kinds of defamation: defamation in writing and spoken defamation. Spoken defamation is slander, but we’re not going to discuss slander because we’re talking about written work, which is libel.
The elements of defamation are as follows: libel is a false statement of fact about another person that you communicate to a third party, not just to that person. There also has to be some element of fault on the part of the person who writes or publishes the statement.
You either knew it was false or failed to check whether it was true before spreading it. Additionally, the person about whom the defamatory statement is made must suffer some form of damage.
Damage could include harm to reputation, lost business, or even physical illness caused by severe defamation. These are the necessary elements of defamation, and all four must be present before a claim can be made.
So that's defamation. Do you want to take them one at a time?
[00:03:41] Matty: Yeah, how about invasion of privacy? That was another topic we wanted to discuss.
[00:03:44] Kathryn: Okay, so invasion of privacy—think of it as intrusion upon seclusion. You are in a private space, like your bedroom, which is common in memoirs. You have an expectation of privacy, but someone—a peeping Tom, for example, or even someone you invite into that space—violates that privacy and then shares it with the world. That is an invasion of privacy. The public has no reason or right to know those private details.
There are other types of invasion of privacy. One is appropriating someone’s name or likeness, which we see a lot in the college sports world right now—NIL, or name, image, and likeness. That is a form of invasion of privacy.
Then there’s false light invasion of privacy. This happens when you depict someone in a way that casts them in a misleading light. For example, if you write that someone was in the middle of a bar brawl and imply that they started it or were involved when they weren’t, that would be false light.
So those are different types of invasion of privacy.
[00:05:25] Matty: And the last term we mentioned was intentional infliction of emotional distress.
[00:05:30] Kathryn: Right. Intentional infliction of emotional distress occurs when someone engages in extreme and outrageous conduct with the intent to cause another person distress. The conduct must be severe enough to cause significant emotional harm, and in some cases, the law requires a physical manifestation of distress.
For example, if someone intentionally lies about another person to cause them distress, that could be both defamation and intentional infliction of emotional distress.
One important point to remember is that all of these laws are state-based. This means the requirements for a claim vary from state to state and country to country. Some states or countries may not even recognize intentional infliction of emotional distress as a valid legal claim.
So, if you're concerned about this issue, you need to check your local laws and consult with a local attorney to determine whether it applies in your situation.
[00:07:11] Matty: I wanted to start with memoir because that’s an obvious example. Unless you’re writing about your time alone on a desert island, memoirs involve interactions with other people. They often pull writers in two directions: staying true to their experience while also being mindful of the legal risks you mentioned.
How do you advise memoir writers to avoid defamation claims when sharing stories about real people?
[00:07:49] Kathryn: The first thing to understand is that you cannot control how other people will react to your work. Even if you take every precaution to ensure you’re not defaming anyone, you cannot predict how they will interpret your writing or what actions they might take.
You can be as careful and reasonable as possible and still have a claim made against you. However, if you are prudent and take appropriate care, you will have a strong defense if a claim arises.
That said, when you’re concerned about defamation, remember that the first element of defamation is that it must be a false statement of fact.
If what you write is true and objectively provable, it cannot be defamation.
[00:08:50] Kathryn: The other thing you can do is frame your characterization of the situation, the person, or the event as an opinion. If you are expressing an opinion, you are not stating a fact.
For example, if you were to write a scene—memoir is often in the first person—you could say, It appeared to me as though she burned down that house on purpose. Or, When I look at that, it makes me think of… (using a simile or metaphor). You are framing the event as your opinion rather than a fact.
By doing that, you are building a defense against defamation. The primary defenses to defamation are truth—an objectively provable truth—or opinion. Those are two solid ways to prevent a defamation claim against you.
That said, right from the start, there’s also the option of fictionalizing the person. You can avoid identifying them by changing details—altering the town where events happen, modifying the setting, changing the person’s description, giving them a different occupation. You can alter these details entirely while still telling your story and conveying how that person made you feel and impacted your life—without identifying them.
That’s a decision you make before you even put pen to paper.
[00:11:22] Matty: Yeah, it seems like some memoirists are clear with their readers that they’re not reproducing interactions with particular people. For example, some memoirists I’ve spoken to say they combine multiple people into a single character—maybe they had two bad bosses and want to tell a story about dealing with a bad boss, so they merge those two into one. The reader understands they’re not going to find that named bad boss on LinkedIn or anything like that.
It seems really tricky. I was thinking about this in the context of creative nonfiction—when someone tells a story about a celebrity or a historical figure and puts words in that person’s mouth. For example, The Crown followed factual stories about Queen Elizabeth and her family but took great liberties with behind-the-scenes action and dialogue. That’s more of an exposé. Are there different legal approaches to those two types of works?
[00:12:43] Kathryn: Yes. When you're writing something like The Crown, there has to be a heavy legal vetting of the manuscript or script. That would involve applying U.K. law—so you’d have to analyze the U.K.'s defamation laws. Those are famous individuals, and the law in the U.S. is different for public figures compared to private individuals. It is much harder to defame a public figure than a private individual.
You need to analyze the manuscript and go through it to see what could potentially sustain a claim. But the legal elements will be the same for both memoir and historical fiction or creative nonfiction. Once you determine which law applies, the legal analysis will be the same.
[00:14:09] Matty: If someone is writing about people in their own life and comes to you for advice, how do you guide them on whether to name names or fictionalize details like names, places, or characteristics? Are there specific criteria you use to determine that?
[00:14:31] Kathryn: Well, you gave the example of a bad boss. That’s easy to fictionalize—you can change the company, job description, and other details. But if you’re writing about your abusive stepfather and using your real name as the author, that person is going to be identifiable. You can’t fictionalize that.
Then the question becomes—do you write under a pseudonym? If you are concerned that your stepfather might sue you and you write under a pseudonym, will you be able to talk about your book publicly? When writing a memoir, you must focus on your why. There are many reasons to write a memoir.
On my website, CreativeLawCenter.com, I have a workshop replay where I interviewed two memoirists. They discussed whether to identify themselves and, by extension, their family members or whether to use a pseudonym and the implications of that choice.
If your reason for writing is to share your story with others in similar situations and to speak freely about it, then you really can’t use a pseudonym. Some situations can’t be fictionalized. You have to decide at the outset what risks you are willing to take.
[00:16:47] Matty: That also made me think about another situation. Suppose someone writes about an abusive experience and wants to follow the book with public appearances to support others in similar situations. Legally, does it make a difference if they don’t name the bad actors in their book or talks, but those people could still be identified if someone did some research?
[00:17:24] Kathryn: If the person is identifiable in the book, that can lead to legal issues. Then you have to weigh whether that person—who hasn’t been named but is described and connected to the author—would want to out themselves by filing a lawsuit, which is a public record accessible to everyone. That lawsuit would essentially declare, I am the stepfather accused of this abuse, and I didn’t do it. Often, when claims like that are made, they draw more attention to the book and can drive book sales.
So you have to assess: will this person take legal action if they haven’t been openly named? That depends on your knowledge of the person, their risk tolerance for exposure, and your own risk tolerance for facing a legal claim. All of these factors go into the calculation of how to approach memoir writing.
[00:19:09] Matty: It seems like so much of this comes back to the underlying motivation for writing the book. Most of the time when I talk to writers, their motivations are positive—they have a story they need to tell, they want to share their experience, or they have advice that could help people. But in some cases, there’s a less admirable motivation—wanting to pay someone back for something. If revenge is the driver, the normal publishing and writing considerations may not apply.
[00:19:54] Kathryn: That’s an interesting point. Revenge. I’ve worked with many memoirists and reviewed many manuscripts for legal clearance, and I can safely say that none of them have admitted to revenge as their motivation. Most say they want to expose an unjust situation so that others in similar circumstances know they’re not alone. Or they want to share mistakes they’ve made so others don’t repeat them. That said, revenge-driven memoirs do exist.
This brings up another reason many people write memoirs: personal therapy. And sometimes, that means a memoir shouldn’t be published. Memoirs about happy lives are not usually that interesting. The most compelling memoirs involve transformation—something tragic or life-changing happens, and the person emerges changed. So when writing a memoir, you must ask: Why am I writing this? What is my goal? If the motivation is therapeutic, maybe the memoir is best kept private.
[00:22:39] Matty: Yeah, I've spoken to several memoirists who have said exactly that—the initial drafting was a therapeutic effort. They had something they wanted to get off their chest, to get out of their heart, to put onto paper, to purge themselves of it. Then they set that aside and said, Okay, now I want to write something shareable. And the final product looked quite different.
For example, they may have written their whole experience out exactly as it occurred, but that wasn’t an interesting way to present it to a reader. So they shortened time frames, cut out uneventful periods, and focused intensively on one key moment—maybe one crucial hour in their life takes up more of the memoir than uneventful years.
I like the idea of separating private writing from public writing. And among all the other craft considerations that go into revising that private draft into a shareable work, factoring in legal considerations is important as well.
[00:23:38] Kathryn: Right. And then when you’re doing that, the question becomes, Do you fictionalize it completely?Because the crux of the story—the theme, the event, the transformation—can still be true to your experience, but everything else can be fictionalized. The characters, the place, the setting—everything can be completely different, and you can still tell your story. And once you do that, you significantly minimize the risk involved.
So again, it goes back to: What is your why? Why are you doing it?
[00:24:14] Matty: Well, that whole question of truth versus embellishment—if it’s completely fictionalized, that takes care of a lot of concerns. But if you decide to present it as a memoir, let’s say you grew up in a small town, and that town is a very important part of the experience. You want to name it, and people will be able to identify individuals in the story. Since memoir often involves a level of creative embellishment, how do you balance storytelling with legal obligations to avoid misrepresentation?
[00:24:49] Kathryn: Well, if you’re going to name the small town and include real people from that town, you need to stick to objective truths. Objective truths or frame things as your opinion. That’s how you’ll have to tell that story. And then, beyond the legal issues, there’s the reality that you might have the whole town in an uproar. That’s not a legal question, but it’s something to consider.
Lawsuits are no fun. You have to decide if this is something you’re willing to go through. Is it really important to name that small town? Again, I’ll point you to that interview I did with two memoirists who spoke very openly about why they made the choices they did in writing their stories. One of them went so far as to help sponsor legislation in his home state. He was the victim of abuse as a child and worked to get a law passed to address that issue.
That’s a big why. You have to think about how much of your life you’re willing to dedicate to this memoir—even after it’s published.
[00:26:45] Matty: Yeah, I like the idea of framing it that way. It also suggests another consideration—we talked about intentional infliction of emotional distress. But what about unintentional infliction of emotional distress? A writer might put something in their book that they don’t think will upset anyone, but then someone reads it and takes offense. Do you have advice on how people can assess or avoid unintentional infliction of emotional distress?
[00:27:12] Kathryn: That’s interesting because it ties back to something I said earlier—you can’t control how someone else is going to react. You also can’t anticipate whether they’ll file a claim. I’ve had many authors come to me and say, Nothing I wrote is bad! Everyone is portrayed in a good light! And I have to remind them, That’s your perspective. But you’re not the person reading it. You don’t know what their circumstances are, so you can’t predict how they’ll respond. That’s unintentional, but it can still create problems. That kind of reaction is less likely to lead to a legal claim and more likely to damage relationships.
[00:28:15] Matty: That reminds me of my corporate days when coworkers would ask for input on their performance appraisals. Sometimes, even if I had a great working relationship with someone and appreciated their contributions, I’d still send my feedback to them first before submitting it—just to make sure I wasn’t saying anything they didn’t want to be said. I’d ask, Is there anything here you wouldn’t want your boss to read?
I can imagine a similar approach with memoir—looping back with the real people involved and saying, Here’s a chapter about an interaction we had—what do you think? Not necessarily promising to change anything, but at least hearing their perspective. What are your thoughts on that, based on your work with memoirists?
[00:29:39] Kathryn: I don’t like it at all. I do not recommend sending portions of a manuscript to a third party for review. Even if you say, I’m not promising to make changes, you are still suggesting that their opinion matters. So why are you sending it? And if you don’t say that, are you giving them editorial control over your manuscript? As a general rule, I don’t like it.
I’ve seen cases where authors have asked for permission to use real places or details in their memoirs. That’s one thing. But once you send a written request for approval, what happens when they say no? Are you willing to rewrite the entire book?
I’ve also had authors send parts of their manuscript to people from their past—people they hadn’t spoken to in 25 years—just to give them a heads-up. And it backfired. The recipient was upset, contacted the publisher, contacted the author’s spouse—it became a problem. So I don’t advise it.
You’re better off focusing on what you can control. Analyze the risks, minimize them as much as possible, and decide what level of risk you’re comfortable with. But I would keep it in-house.
[00:31:56] Matty: Yeah, I can imagine in that scenario with the seminary, it makes sense that it would be a real legal risk to use the name without permission. If they had said no, do you think it would have been sufficient for the author to just change the name of the seminary?
[00:32:17] Kathryn: Change the name, change the location, change the description, change the hierarchy of power—you’d have to rewrite it. You also have to be careful when using real places in your stories, especially in fiction. In nonfiction, real events took place in real places, so you have more freedom to use them.
[00:32:42] Matty: But in fiction, if you put terrible events in a real place, the owners of that place could be very upset. You have to be careful about that. Many of my novels are set in the Philadelphia area, and I went to Penn. I was originally going to use Penn as a setting, but I thought some nefarious things were going to happen there, so I changed it to “William Penn University.”
I think everyone knows what I was getting at, and in the end, nothing bad actually happens there, but I still changed it. Sometimes you just want the freedom to move things around, even if it’s not something negative—like if I wanted a cafeteria in a building that doesn’t have one. I don’t want to be tied to reality.
[00:33:42] Kathryn: Right, and in the grand scheme, does it matter where it happens? You’re writing about a university with ivy-covered walls—it doesn’t have to be that university. As a creative writer, you’re inspired by Penn, but you can take that feeling and create something new.
[00:34:17] Matty: Exactly. I wanted to talk about a different topic: fair use.
A lot of people reflect on their lives and think of certain songs or lyrics that were meaningful to them. They want to include those lyrics in their books. What’s your advice for people considering that?
[00:34:39] Kathryn: Don’t. You can use the title of the song. You can use the artist’s name. You can describe the feeling the song gave you. But you cannot use the lyrics.
There is no reliable law on fair use of song lyrics or poetry that would protect an author at this time. Some legal arguments suggest it could be fair use, but look at it from the perspective of the songwriter or poet. If you’ve written just a few short lines that move millions of people, those lines are the heart and soul of your work. Why should someone be allowed to take those lines and put them into their book without permission?
If you think about it that way, it makes sense why you can’t use lyrics—you’d be taking the very essence of the song. And on top of that, there’s a licensing system in place where you can request permission and pay for the right to use the lyrics. That’s my current wisdom on the subject.
[00:36:33] Matty: Yeah, early on, I was interested in using a passage from The Sword in the Stone by T. H. White. Not only did it take forever to track down who actually owned the copyright—it had passed from one company to another over the years—but when I finally got an answer, I learned that the cost wasn’t unreasonable, but it was limited to a certain number of books.
For example, they might have said, You can use this for up to 1,000 copies, but if you sell more, you have to renew the license. And I thought, How do you even track that? I didn’t want to spend my life keeping tabs on that permission. They were willing to negotiate, but I ended up not using it.
[00:37:36] Kathryn: That’s interesting. I worked with a documentary filmmaker who wanted to use a Sade song in the background of his film. He went to great lengths to contact her directly, and because the subject was something she cared about, she gave permission. So it’s possible.
I’ve also had authors approach estates to request permission to use quotes from a celebrity’s journals or lyrics from a song, and they’ve received permission. So sometimes it’s worth reaching out and explaining the project directly. Bypassing the standard licensing system and going straight to the source can work.
[00:39:01] Matty: So it’s going to be a case-by-case situation. But just to be clear—are you saying that you cannot quote lyrics without permission?
[00:39:26] Kathryn: Correct. You need permission. And when you get that permission, it will take a very specific form. The copyright page will need to include a formal acknowledgment stating that the lyrics from [Song Name] by [Artist Name] are copyrighted and used with permission. When it comes to quoting longer works, fair use is determined case by case.
And a recent Supreme Court case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, added a new layer to fair use: if a work is available for licensing—meaning there’s an existing system to pay for the right to use it—it will be harder to claim fair use.
[00:41:02] Matty: That’s a great point.
One final thing I’d like to discuss is disclaimers. How much protection does a disclaimer at the beginning of a book offer?
[00:41:14] Kathryn: Disclaimers can reduce risk. They can warn the reader about the limits of what you’re writing. For example, if you’ve created a composite character—like merging two bad bosses into one—you can explain that in the disclaimer. Some courts give disclaimers significant weight. There isn’t a lot of litigation on this, but disclaimers help set the stage for how the reader perceives the book.
[00:41:45] Matty: That’s really helpful.
Kathryn, thank you so much for sharing your insights on minimizing legal risks in memoir and other types of writing. Where can people find more about you and your work?
[00:41:14] Kathryn: Please visit me at CreativeLawCenter.com. I offer extensive resources for creative professionals, including writers, artists, and entrepreneurs who are building businesses around their creative work.
I cover topics like copyright, trademarks, business development, and internet law. I also have a membership program where I provide ongoing support. So please stop by—I’d love to connect.
[00:41:45] Matty: Sounds great. Thanks again!
[00:41:47] Kathryn: You’re welcome! Thanks for having me, Matty.
