Legal question about poetry?
September 28, 2011 6:19 PM   Subscribe

If you write a poem about someone and want to publish it, is that person allowed to prevent you from doing so?

I remember hearing something in a high school English class about how Sylvia Plath encountered some problems with her husband Ted Hughes when she had referenced him in some of her poems (in a rather negative way). I don't remember the specifics, but I do recall that he had been opposed to her publishing of some of her poems that would cast him in a bad light to the public, and that he and his mistress had tried to stop Plath from sharing her work.

Nothing drastic/serious at all on my end here, but I was just curious as to whether a person is actually legally able to prevent someone from publishing a poem that somehow might ruin their reputation.

Thanks!
posted by glassrose to Writing & Language (17 answers total) 1 user marked this as a favorite
 
cough. I think the Plath allegations were more to do with him destroying her journals/letters because he was in charge of her estate. Outside of that, no, you can't prevent someone from publishing a poem about you because you don't like it. You might have an outside chance at a libel claim if the work made false factual allegations --- sometimes people change the names in scripts so as to avoid having a serial killer dentist have the same name as an actual dentist, but even that's more an abundance if caution thing, not because it would be a easy case to win.
posted by Diablevert at 6:29 PM on September 28, 2011 [2 favorites]


IANAL, but I think the Citizen Media Law Project's page on Publication of Private Fact may be relevant.
posted by Monsieur Caution at 6:30 PM on September 28, 2011


Defamation per se is a thing.
posted by Gator at 6:31 PM on September 28, 2011


It's a question about defamation. There is a body of law about defamation (also known by the names libel and slander, which are becoming a little archaic because they are dependent on specific media), but it varies quite a bit nation to nation, and is also open to varying interpretations even within those contexts.

I'm not a lawyer but I've had to learn a bit about media law w/r/t defamation in my career. In the US defamation is harder to prove than elsewhere. There are four criteria for showing that there is cause to charge defamation:that the information given is enough to identify the person (the name is obvious, but if you can discern who the person is based on descriptors, that counts too); showing that the defamatory act actually hurt the person, particularly in the ability to make a living but also socially; showing that the facts alleged in the defamatory act are actually false; and publication, or the sharing of the defamatory statements with someone else, through print, online, broadcasting or even just talking about it in public.

I've never heard of any cases of defamation being brought because of a poem, though that sure doesn't mean it didn't happen. I don't know the Ted Hughes backstory, but basically, if information given is true there's no cause for defamation. In poetry, though, "truth" becomes kind of a slippery thing - if a characterization is unfavorable that doesn't mean it's true or not true. If you call someone a "paper octopus," for instance, there's no proving or disproving that or even being sure what it means.

Again, IANAL, but if you plan to name or identify someone and say things about them which aren't true, be concerned about maybe getting some cease and desist letters from lawyers and being open to the charge of defamation. If you don't do those things, you are likely not going to be liable.
posted by Miko at 6:35 PM on September 28, 2011 [1 favorite]


Oh, right, thanks Gator, defamation per se means that even if these things are true you can be held liable for saying them because they're so crippling.
posted by Miko at 6:36 PM on September 28, 2011


If you write a poem about someone and want to publish it, is that person allowed to prevent you from doing so?

Generally speaking, no -- at least in the US. The courts take an extremely dim view of "prior restraint", considering it to be a direct violation of the First Amendment. What is more common is that you publish, and then the person who feels offended tries to sue your tail off.

The laws elsewhere are different, of course.
posted by Chocolate Pickle at 6:48 PM on September 28, 2011 [2 favorites]


Wikipedia on Prior Restraint.
posted by Chocolate Pickle at 6:49 PM on September 28, 2011


Response by poster: Wow, thanks a lot for the answers and links, everyone! They are immensely helpful. I wish I could mark everyone's as "best answer." :)
posted by glassrose at 6:54 PM on September 28, 2011


I don't think that's correct, Miko. As I understand it, and as the wiki article seems to have it, defamation per se means that you don't have to prove it's nasty, not that you don't have to prove it's false. If somebody says I wear army boots and I sue them for libel, in order to meet my claim I have to prove 1) I don't wear army boots, and 2) saying that I do is a terrible thing that could damage my reputation. Whereas if somebody says "Dr. Koop is performs surgery while drunk," then to win a libel case Dr. Koop has to prove only (1) that's not true --- it's taken as read that saying a doctor's a drunk is obviously damaging.

Even if a poem said something that would be regarded as defamation per se you'd still have pretty high bar to establish that it counted as factual --- the sports page can call Joe Torre incompetent without fear because it's clear it's an opinion, not an allegation of fact. You'd have a hell of a time proving that a piece of abstract creative expression like a poem would be interpreted as fact by most people.
posted by Diablevert at 6:55 PM on September 28, 2011


Just to clarify defamation per se to the best of my knowledge (IANAL yet, but I am a law student): The statements that you make must still be false for you to be held liable on a defamation per se claim; truth is an absolute defense to all libel, slander and defamation claims. Defamation per se is simply a damages issue, where certain types of false statements are considered so harmful to the reputation of the injured party that damages are presumed and need not be proven as an element of the claim.
posted by lisagirl at 6:59 PM on September 28, 2011


Sounds like I didn't get that point right, sorry.

I should have remembered that because in fact that's the whole constitutional foundation for the law - that under freedom of speech you have to be free to call out bad things that are true, even about powerful people, without fear of being silenced.
posted by Miko at 7:07 PM on September 28, 2011


truth is an absolute defense to all libel, slander and defamation claims.

In the US. It isn't in the UK and you can be successfully sued in the UK even if what you're saying is provably true.
posted by Chocolate Pickle at 7:53 PM on September 28, 2011 [1 favorite]


you can be successfully sued in the UK even if what you're saying is provably true

That's true in the US too, if it's an offensive invasion of privacy for a non-newsworthy person rather than defamation.
posted by Monsieur Caution at 7:59 PM on September 28, 2011


That's true in the US too, if it's an offensive invasion of privacy for a non-newsworthy person rather than defamation.

That's a different issue, though. Truth is an iron clad defense from libel and slander, (in the US)- if you invaded my privacy or broke into my house to get that truth, those problems are unrelated to content.
posted by spaltavian at 8:03 PM on September 28, 2011


That's a different issue, though.

I'm not sure what question you're answering, but it seems pretty likely to me that if a woman writing a poem about her husband were sued in the US, the claim would be based on publicity of private facts or false light rather than slander or libel, because it's going to be hard to prove she's lying but easy to prove she has abused her access.
posted by Monsieur Caution at 8:13 PM on September 28, 2011


If it isn't actually libellous, I don't see what's to stop you, beyond your own sense of appropriateness.
posted by Decani at 8:39 PM on September 28, 2011


With regards to Ted Hughes and Sylvia Plath, Ted Hughes was Sylvia Plath's literary executor, and, as such, controlled the rights to Plath's work after her death.
posted by zombiedance at 11:26 PM on September 28, 2011


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