Alternate history fiction and the people that did it

January 24, 2005 9:52 PM

FictionFilter: what are the legal ramifications of using living or dead individuals and corporations in fictional works, without obtaining consent and in ways which diverge from history?

Let's say, for example, I'm writing a novel about the movie business and a fictional motion picture studio. For sh*ts and giggles, call it MetaMovies. Can I write that MetaMovies purchased the MGM library of films in the mid-90s, and that the fictional founder of MetaMovies (the MetaMogul, if you will) was, at various points in his life, married to Marilyn Monroe and Ava Gardner? Fueded with Orson Welles? Famously knocked out Marlon Brando when Brando walked off the set of a completely fictitious movie? I've seen novels that have dealt fictitiously with the lives of public figures, but I've never seen corporations woven into those stories -- nor do I know whether their authors have had to approach the estates of celebrities to authorize said treatment. However, I recently finished the excellent Jonathan Strange and Mr. Norrell, and the detailed descriptions of the English government's attempt to use magic against Napoleon's encroaching army lent a cogent sense of verisimilitude to the otherwise fantastic subject matter.
posted by mrkinla to writing & language (16 comments total)

verisimilitude, wow I had to break out the old SAT 5000 Words for that baby.

As long as you don't slander the corporation/person you are fine. It gets somewhat more sketchy if you're writing a big expose, but obviously you're just writing historical fiction set in Hollywood fifty years ago. I've been studying on IP and if I'm wrong on this, I'm totally unaware of it.

See, "The Devil Wears Prada" as an example where they used a product in the title!
posted by geoff. at 10:02 PM on January 24, 2005

"This is a work of fiction. Any resemblance to actual persons or companies, living or dead, is purely coincidental."

(or a better version your publisher's lawyers can draft for you...)
posted by Vidiot at 10:16 PM on January 24, 2005

"This is a work of fiction. Any resemblance to actual persons or companies, living or dead, is purely coincidental."

That doesn't work when the resemblance obviously isn't coincidental.

I've read plenty of novels where the characters are wearing Nikes or eating at McDonald's. I'm no expert on this, but I think that you're fine if the portrayed can't prove that you reduced their monetary worth in any way. Companies can be pretty litigious though, so you'll probably want to make your references fairly inncuous.

I didn't read it, so I'm not positive, but I think MGM might have been mentioned by name in Gore Vidal's historical novel on Hollywood (the name escapes me right now).
posted by painquale at 1:37 AM on January 25, 2005

Publicity rights are a matter of state, not federal law, so you'd have to research each jurisdiction where you plan to sell the book. There's a lot of latitude toward fair use, though, given the fact that these celebrities have in some respects donated part of their likeness to the public domain by way of their celebrity status.
posted by Saucy Intruder at 4:03 AM on January 25, 2005

I think Max Barrry's novel, Jennifer Government, might be worth mentioning as a contemporary example of gratuitous name-dropping of many, many huge corporations. The book is a jab at America's "hypercorporate capitalism" and employees everywhere take on their employers' names as their last names.

Perhaps you could contact the author for advice regarding issues he has encountered with these, if any.
posted by furious blush at 6:00 AM on January 25, 2005

As a copy editor, I can say with some authority that it's probably OK--unless, as geoff said, you slander. For instance, I recently edited a horror novel in which the author had a character say something like "You know that cartoonist R. Crumb? He died of autoerotic asphyxiation." Now, I can't speak for Crumb's sexual habits (or tendency to litigate, for that matter) but it's a fair bet that this would have caused problems. I deleted it and it does not appear in the published book. As regards corporations, I wouldn't write in your novel that, say, MGM had Marilyn Monroe killed, but putting the company in a fictional situation is probably fine.
posted by scratch at 7:05 AM on January 25, 2005

In the US, free speech and fair use rights will offer an iron-clad defense against any trademark infringement action taken by any entities portrayed as you suggest. And you can't be sued for slander unless you state or imply your tale is true.

The Simpsons would have been off the air long ago if making fun of the rich and powerful were not protected speech. (IANAL, but I've studied such matters.)
posted by McGuillicuddy at 7:09 AM on January 25, 2005

You may want to check out books by Mark Leyner, specifically "Et Tu, Babe" and "The Tetherballs of Bougainville". He name checks people and corporations with ease and has his character interacting with famous real people.

"Lately I've been trying to fix Mom up with the lawyer Alan Dershowitz, who helped prepare an amicus-curiae brief in support of my father's last appeal."
posted by FreezBoy at 7:11 AM on January 25, 2005

E.L. Doctorow always puts real people into his novels. I don't have one with me right now, but he has a caveat that goes where the usual "any resemblance..." stuff goes; it basically says that real people have been used, but for fictitious purposes.
posted by goatdog at 7:29 AM on January 25, 2005

A couple of example and a little more info:

America: The Book by John Stewart is full of satirical references to corporations and living people, but it is protected speech. Satire and/or parody is given special consideration in application of copyright law.

Almost anything by Robert Anton Wilson, I'm thinking specifically of "Reality Is What You Can Get Away With", intersperse real characters and fictional characters in a fiction setting. That is protected speech too.

Also Fair Use of Trademarks and Copyrights.
posted by McGuillicuddy at 7:34 AM on January 25, 2005

Correction: My remarks on slander were too general. Still overly general, but more accurate...

If a "reasonable person" could assume your slanderous tale is true, regardless of whether you stated it is true or not, then you could be guilty of slander. The boilerplate disclaimer already mentioned ("any resemblance to entities living or dead is coincidental...") generally offers protection from that.
posted by McGuillicuddy at 7:47 AM on January 25, 2005

FYI, it would be libel (because it was printed) not slander (which is if it's said).
posted by drezdn at 8:00 AM on January 25, 2005

There's an author's note at the beginning of Jennifer Government, which I will reproduce here (any typos are mine):

"There are a lot of real company names and trademarks in this book, most in situations you are unlikely to see on the covers of any annual reports. That's because this is a novel, and the things that happen in it aren't true. This may seem obvious enough to you, but some people (whom we shall call "lawyers") get very uptight when you describe large corporations masterminding murders. So let's be clear: this is a work of fiction. The actions depicted are not real nor based on real events. Any resemblance to actual people is coincidental. And the use of real company and product names is for literary effect only and definitely without permission."

While I don't recall hearing about any legal action taken against Max Barry or his publisher (Doubleday), I doubt that you could completely insulate yourself against it. Even since this book was written, companies have gotten more aggressive about treating any unfavorable mention of them as a trademark violation--on specious grounds, but still, they can make trouble for you.
posted by adamrice at 8:32 AM on January 25, 2005

On the other hand, neither Jennifer Government nor Barry's previous book Syrup have been made into movies yet, even though they're naturals for the screen. You have to imagine that this is in large part because they are satires of corporate evil - it's hard to get studios interested in making a movie in which Nike has a customer shot to get people interested in their new shoe.

(Actually, you don't have to imagine it; Barry has an interesting weblog too, and describes in each book's section the travails of trying to get it made into a movie. He may have learned his lesson; where Syrup and Jennifer Government are about Coca-Cola and Nike respectively, his upcoming book Company is about an unnamed mega-corp so mysterious even its employees don't know what it does.)
posted by nicwolff at 10:00 AM on January 25, 2005

Thanks for all the input. I appreciate it. I'd wanted to read Jennifer Government for just this reason, and it kind of dropped off my radar, so thanks for the reminder.

Seems like I'd be in the clear so long as everything is prefaced with a solid disclaimer... although I have the distinction of working for a media company not entirely unlike the one I'm writing about, but that happens all the time. Certainly, that's what happened with The Devil Wears Prada, although I have not read it. I guess, depending on my portrayal, I may need to have some faith I'll be able to support myself with the proceeds. Cart ahead of the horse territory there.
posted by mrkinla at 10:12 AM on January 25, 2005

Hey, and the first chapter of Jennifer Government is available at Barry's site, so you can see how far he went with the maligning-real-corporations thing.

Also, he says this about "Getting Sued" on the "Trivia" page for that book: People often ask how I get away with using real company names in my fiction. I'm not completely sure; all I know is I keep using real company names and they keep not suing me. But I can think of two possible explanations. One is that my novels are protected free speech, since they're clearly parodies and don't allege actual misdeeds. That is, when I use a real company name, it's just like using a real place name -- and the City of Los Angeles has yet to sue James Elroy. The other explanation is that I always use highly visible, brand-name companies, and suing a comedy writer would be terrible PR.
posted by nicwolff at 10:14 AM on January 25, 2005