GPSOLO April/May 2009
Law of Defamation, Second Edition
Rights of Publicity and Privacy, Second Edition
Defamation law is such a specialized field that there are few treatises focusing specifically on that issue. Imagine, then, the value of a two-volume treatise on that subject for defense lawyers practicing in the field. Dean Rodney A. Smolla’s two-volume Law of Defamation (second edition, $673 from West) is an excellent addition to a lawyer’s media law library. Heavily footnoted, it nevertheless is written in an easy, flowing style. It begins with a chapter that few similar books contain: an outline of the history of media law.
Smolla’s section on public-figure versus private-figure law is detailed, discussing in depth many seminal cases and also answering specific questions that twist the brains of media lawyers, such as whether “involuntary” vortex public figures exist and whether public-figure status can fade away. This section of the book also has numerous chapters discussing in detail a wide variety of figures who have been held to “public” status, citing cases relating to those decisions and noting important factors causing the court to reach that decision.
Another large section of Volume 1 deals with defamatory meaning, considering the context of the allegedly libelous statement, the factors that courts consider in viewing these words and their relationship to the plaintiff, and various preliminary and substantive defenses that are available.
In Volume 2 the book offers materials that are extremely valuable to the practitioner. Part 2 of that volume begins with sections on litigation, including counseling your clients and strategy. Discovery strategy is discussed, as well as shield law issues and “SLAPP” motions. Chapter 13 deals with preventative counseling of one’s journalistic clients, the ever-present question of whether reporters should save or destroy notes, and the handling of publicity in regard to media trials. Finally, the volume contains an unusual chapter on food defamation, a tort made famous by Oprah Winfrey and her beef litigation in Texas several years ago.
This book cannot stand alone in the media practitioner’s cabinet, however. Next to it belongs the two-volume Rights of Publicity and Privacy by J. Thomas McCarthy (second edition, $776 from West). The tort of invasion of privacy, in all its many nuances, has developed in the courts alongside the body of defamation law. These are two clearly different torts, however, and one practicing in this field needs to clearly understand both bodies of law.
McCarthy’s books devote clear sections to the four torts included in privacy claims, namely publicity and commercial appropriation, intrusion, disclosure of private facts, and false light. Included is an analysis of various state statutes in this field. The book addresses privacy rights and the First Amendment and modern developments of the tort, including docudrama, life stories, and advertisement issues. Defense theories are detailed and remedies discussed. One chapter also deals with contracts for the transfer of certain publicity rights, including those all-important checklists for use in such matters.
There are definitely books on the market, such as Sack on Defamation, that address many of these defamation and privacy issues together, but there are fewer books that address in particularity any one of the torts, especially in this depth.
Both Smolla and McCarthy are well qualified in their fields. Smolla litigated many cases in this area before his academic career began. He now is dean of the Washington and Lee University School of Law, and among his many earlier accomplishments is serving as a senior fellow of the Annenberg Washington Program at Northwestern University, in addition to serving as the author of numerous books on media law topics. McCarthy is the founding director of the McCarthy Institute for Intellectual Property and Technology Law at the University of San Francisco, among his many other accomplishments.
These books are not cheap, but because McCarthy’s treatises are paperback, they are reasonably priced, and having both sets of volumes on one’s shelf gives the media law practitioner immediate access to the issues most frequently encountered in this area. One can obtain similar volumes at a cheaper price, but the quality of the information contained in these books makes them well worth the cost.
Note: West, a Thomson Reuters business, is a corporate sponsor of the General Practice, Solo and Small Firm Division; this article appears in connection with the Division’s sponsorship agreement with West. Neither the ABA nor ABA entities endorse non-ABA products or services, and this review should not be so construed.
Jean Maneke, of the Maneke Law Group, L.C., in Kansas City, Missouri, has practiced in the area of media and entertainment law for 20 years and counsels authors, newspaper and book publishers, film producers, recording artists, advertising and marketing agencies, photographers, and broadcasters. She may be reached at firstname.lastname@example.org.