Real people in fake stories

May 20, 2005 12:55 PM

What are the legal ramifications of using a real person in a fictional story? Do you have to have their permission?

For instance, what if a character accidentally bumps into a celebrity on the street. No words are exchanged, just an acknowledgment of the fictional character's brush with fame. Or, even more involving, what if a story centered on the completely fictional account of a celbrity's kidnapping... or a love story involving a fictional character and a celebrity.

NOTE: When I say "celebrity," I don't mean celebrity in the tabloid sense... necessarily. It could be anyone of notable significance.

Do the legal issues focus on the extent of the real person's involvement in the story? Is the only way around this to create characters who are obviously similar to their real-life counterparts... only with a slightly changed name (i.e. Brunt Springstein)?

posted by bjork24 to writing & language (22 comments total)

This has been done a lot. Salvador Dali in Amazing Adventures of Kavalier and Clay comes to mind first.

It's been done. A lot. No ramifications. Unless you piss them off and they come and deliver unto you a beat-down.
posted by xmutex at 1:01 PM on May 20, 2005

You should ask Bret Easton Ellis. His Glamorama (an excellent book, as I see it) features quite a bit of unflattering celebrity cameos, at least in the first third.
posted by saladin at 1:05 PM on May 20, 2005

If this has to do with a Tom Cruise and a certain 'big red' character - I would stay away from that one.
posted by jazzkat11 at 1:08 PM on May 20, 2005

If they are a public figure and you do not portray them in a manner that makes them seem to be evil incarnate, you won't have any trouble. The more public they are the less you have to worry about how you portray them. If they're dead, even better, although if you portray them egregiously you may have to worry about their estate.
posted by kindall at 1:11 PM on May 20, 2005

So, for instance, writing a book entitled "Tom Hanks Saves the World," which chronicles the superhero-esque adventures of a caped Hanks, wouldn't land me in boiling water... unless, or course, it portrayed Tom in a bad light? Like if I had him killing puppies or something?
posted by bjork24 at 1:24 PM on May 20, 2005

Depends on the state in whihc suit is brought. In Californai the "right of publicity" is growing fast. If you google for that look for the Sony / Vanna White case. Basically if you're playing off the fact that somebody is known then you might have an issue.

So, for instance, writing a book entitled "Tom Hanks Saves the World," which chronicles the superhero-esque adventures of a caped Hanks, wouldn't land me in boiling water

In California it might under the "right of publicity", a common-law psuedo-property right. Vanna White won a suti against Sony for violating her "right of publicity" by filming an advertisement that contained a robot in a blonde wig turning big letters.

Basically, the CA doctrine says that somebody controls all representations of them, and their widow/estate does in more limited ways for a time after death. I can't give you exact legal advice without knowing more, but there is a very strong possibility of trouble in California. Most other states have a much weaker right of publicity.
posted by thedevildancedlightly at 1:40 PM on May 20, 2005

Lawyers will show up out of nowhere at the last minute like trapped farts in bus seat cushion, and fine tooth comb nearly anything of use out, leaving you with little to say that will make sense to anyone. Stuff you can't even imagine as being an insult or problematic will become liabilities that your publisher will not bother with. It's barely worth your trouble. Better to invent a patsy with recognizable qualities than mention a real person.
posted by dong_resin at 2:02 PM on May 20, 2005

In the US public figures traditionally have had little recourse if they don't like how they're portrayed in a work of art. I think you'd be safe using real public figures as fictional characters in book. Certainly, as other have mentioned earlier in this thread, many authors have done this successfully and without incident even though the fictional portrayal was less than flattering.

However, with regards to your hypothetical book "Tom Hanks Saves the World," I'd be worried about California's right of publicity law in which a celebrity's name, voice, signature, photograph and likeness can't be used for commercial advantage without permission. In order to promote or sell your book you'll want to mention the title of your book and this might get you in trouble if the title contains an celebrity's name. Even if you don't mention a celebrity in the title, celebrities could make the argument that by selling this book you're taking commercial advantage of their identities because the book wouldn't sell as well if wasn't for the fact that they appeared in the book. I am not a lawyer, but so long as the celebrity's fame isn't integral to your book, I think you're safe in this regard.

Similarly, another reason to avoid including a celebrity's name in the title of your book is that celebrities have successfully used the UDRP to assume ownership of domain names that include their name. If you are at all considering acquiring a domain name the same as your book's title, is would be prudent to not include a celebrity's name in the title of your book.
posted by RichardP at 2:07 PM on May 20, 2005

Of course, "Tom Hanks Saves the World" was hyperbole, but even still, the forthcoming advice is great!
posted by bjork24 at 2:29 PM on May 20, 2005

Overall, you're fine. If you're writing it as fiction, they can't hit you with libel. Well, they could, but they'd have a hard time winning it, unless the book was out-and-out about them. This is why some books contain a little disclaimer in them discussing the fictional nature of their contents.

Also, I suspect that there's a high liklihood that if you're doing satire or humor, you're even more likely of being able to win such a case.

All that said, IANAL--but, I am smart and literate.
posted by Netzapper at 2:36 PM on May 20, 2005

Another interesting datapoint would be the Parks v. LaFace Records case about the group Outkast titling a song "Rosa Parks". Although the case was settled, the court sided with Ms. Parks. (Her accusation was that her name was used without her permission.)
posted by sexymofo at 5:09 PM on May 20, 2005

A while back, a friend told me the following story. A google search turns up no mention of it.

Terry McMillan, author of How Stella Got Her Groove Back and Waiting to Exhale, based a drug dealing, unfaithful, low life character on her ex-boyfriend. He sued, but lost. Because, the court decided, while she did base the character on him and while it quite possibly did damage his reputation or otherwise cause him grief, the portrait was accurate; he really was a drug dealing, unfaithful low life.

Can anyone confirm or refute this story?
posted by Clay201 at 6:05 PM on May 20, 2005

Do you plan to publish in England? They have their own brand of libel laws, much touchier than the US. Something to consider, in any event
posted by IndigoJones at 6:39 PM on May 20, 2005

IANAL, but I believe that political figures don't have the same protections that other celebrities have in terms of the right to publicity, so you may be able to have a character administer wedgies to Orrin Hatch or Mario Cuomo...
posted by i love cheese at 7:32 PM on May 20, 2005

Every so often on the copyright page, I see a statement that characters are either a product of the author's imagination or used fictitiously.
posted by brujita at 12:00 AM on May 21, 2005

They have their own brand of libel laws, much touchier than the US

Yes, from what I understand, the burden of proof is on the defendant, not the plaintiff. Whacky.
posted by madman at 12:29 AM on May 21, 2005

dong_resin's colorful though distasteful comment has a glimmer of accuracy. If a publishing house publishes your work, it will have lawyers whose job it is to make sure that any use of a living person's name or personage will not engender liability for the house. (And switching letter to make your character Gil Bates won't protect you.) This is protection for it and incidentally for you. They, of course, have more to lose.

Of course, I don't know how that makes them farts in a seat cushion. Most people would like to have someone knowledgeable advise them about how to avoid an 8-figure lawsuit before they commit themselves. It seems like good preventive business sense.
posted by yclipse at 3:31 AM on May 21, 2005

Another interesting datapoint would be the Parks v. LaFace Records case about the group Outkast titling a song "Rosa Parks". Although the case was settled, the court sided with Ms. Parks. (Her accusation was that her name was used without her permission.)

Actually, when her attorneys sued OutKast, OutKast won. The only reason I can think of that LaFace settled was to avoid any bad publicity. The case didn't go to trial, so LaFace didn't lose. Rosa Parks' legal team didn't get a finding in their favor against LaFace, and they ultimately lost their suit against OutKast.
posted by oaf at 8:29 AM on May 21, 2005

As a semi-non-sequitir, I am in love with this thread for being entirely about writing fiction about "real people" and not one person has said it's "morally wrong", it's "like rape", or "you wouldn't like it if it happened to you".

Christ, I spend too much time in fandom...
posted by Katemonkey at 10:01 AM on May 21, 2005

Minor fix: Googling shows that Vanna White sued Samsung, not Sony.
posted by IndigoRain at 12:01 AM on May 22, 2005

Minor fix: Googling shows that Vanna White sued Samsung, not Sony.

You are entirely correct. My memory failed me on that one and I was too cocky to double-check. Thanks for correcting the record. Damn lawyers.
posted by thedevildancedlightly at 12:20 AM on May 22, 2005

From a Media Law class I took a little while ago for reporters that focused almost entirely on How Not to Libel People, most of what everyone here has said is correct. I would like to add that libel laws are different in every state in the US (and basically everywhere around the world). The problem with this is that you are then subject to every law individually -- as long as your book is distributed there.

There are several cases of reporters getting sued for stories in states other than the ones in which they lived -- and in states where they didn't even know their paper/magazine was distributed.

That said, if you are a public figure (celebrity, politician, guy who does tv commercials for his own business) the burden of proof is truly on you when you sue someone...but it is your job to prove INTENT. Intent is the key here and I think that in a fictional story intent on the author's part is pretty clear. Whereas, in the case of a reporter who makes a mistake or simply publishes a fact that said celebrity doesn't like, intent is VERY difficult to prove -- and that is why reporters/papers/etc. very rarely lose cases when it comes to libel of a public figure. Finally, it is illegal to use the name or image of a public figure for advertising or money-making purposes without their permission -- these are the cases that the media always loses (so you might want to leave it out of your title).

So, you might want to think a bit about intent, and then you might want to reconsider your choice to use a celebrity in your story without permission.
posted by ebeeb at 7:55 PM on May 22, 2005