Legal question about using celebrities in works of fiction

June 17, 2008 11:36 AM

What is the legality of using a celebrity as a character in a satiric work of fiction?

I've seen it before, such as in David Sedaris's short story in which he claims to have dated Mike Tyson. I'm writing a story that includes several celebrities in fictional, and obviously satiric, situations, and I want to make certain that if they try to sue my ass off, I've got a legal leg to stand on.

posted by Astro Zombie to writing & language (14 comments total)

You should include a disclaimer here:

[TITLE] is a satire by [ASTRO ZOMBIE'S REAL NAME], and is not intended maliciously. [ASTRO ZOMBIE'S REAL NAME] has invented all names and situations in its stories, except in cases when public figures are being satirized. Any other use of real names is accidental and coincidental, or used as a fictional depiction or personality parody (permitted under Hustler Magazine v. Fallwell, 485 US 46, 108 S.Ct 876, 99 L.Ed.2d 41 (1988)).

It's pretty unlikely that anything could come up, but it's always nice to have a fallback!
posted by beaucoupkevin at 11:53 AM on June 17

Previously.

The devil's in the details here. My so-not-a-lawyer understanding is that celebrities don't have a reasonable expectation of privacy, and are fair game (for use in prose; use of their image or voice is different.) But that doesn't mean they can't sue you for libel. That's a suit you would probably win by demonstrating that the work was clearly satire and couldn't be mistaken by a reasonable person for being true. But winning doesn't necessarily mean not spending tens of thousands defending.

Publishers have legal departments to weigh in on whether you can get away with given instances of this; that's one advantage to working with a publisher.

Here's a case of interest in which the target/plaintiff was a judge.
posted by Zed_Lopez at 12:13 PM on June 17

Parody, satire, etc. are generally considered to be protected uses but keep in mind that there is a difference between "will probably win a civil lawsuit" and "won't get sued." The latter depends greatly on the individuals involved, the depictions, the prominence of the story's publication, etc. I would, for example, not recommend writing a satirical story about Harlan Ellison, no matter how confident you were that the usage was legitimate.

Also you should be aware that many states have something referred to as "right of publicity" that is to prevent people from making money of off a famous person's likeness. There was a case a few years ago where Johnny and Edgar Winter sued DC comics because of depictions of them in a Jonah Hex comic, though they ultimately lost the case.
posted by camcgee at 12:17 PM on June 17

My so-not-a-lawyer understanding is that celebrities don't have a reasonable expectation of privacy, and are fair game

The right of publicity law (originally created to protect Elvis's likeness) was specifically created to prevent the lack of privacy protection from being exploited for financial gain. Not all states have it, but California does, so any celeb that lives there can invoke it.
posted by camcgee at 12:23 PM on June 17

If you use a celebrity's picture without permission, you can get in trouble. But if you draw a charicature of the celebrity, that's OK. So when it comes to prose, I believe it also depends how satirical it is, and how long.

At the long non-satirical extreme, let's say you write a full length novel in which Jack Nicholson is the main character, and it's straight fiction, not humorous at all. Jack could, and probably would, sue you for using his persona without authorization, Hustler vs. Falwell disclaimer be damned. (Keep in mind, you don't want to get sued, period, whether or not you have a theoretical leg to stand on, because it will put you in the poorhouse.)

At the other extreme, get a satirical short story about Jack into the New Yorker and you'll probably get a thank-you note from him.
posted by beagle at 12:23 PM on June 17

My first thought on seeing your question was, "Mike Tyson!"
posted by Stylus Happenstance at 12:34 PM on June 17

Hooray. Another "please give me legal advice" question on AskMe.

I want to make certain that if they try to sue my ass off, I've got a legal leg to stand on.

On preview: Zed_Lopez's and camcgee's responses were better than the crap I wrote, I would just add that I don't think beaucoupkevin's suggested disclaimer would make an ounce of difference unless it were placed so prominently as to be obnoxious and, even then, the legal usefulness of disclaimers is often questionable at best.

On the other hand, something like

TITLE
A satirical work by [Astro Zombie]

Might be more useful.
posted by toomuchpete at 12:35 PM on June 17

See also something like Fake Steve (which these days seems primarily concerned with lampooning Jerry Yang. Who know?) and his imitators, plus the accompanying book. I don't know much about law, but it seems like there are enough examples of this kind of thing happening that there must be some kind of legal protection if you do it properly, although it may depend a lot on the celebrity in question. I imagine using a certain mission impossible star might be more inclined to generate unwanted attention and legal pressure.
posted by heresiarch at 12:41 PM on June 17

A book named The Second Greatest Story Ever Told, by Gorman Bechard, about Christ's daughter in the late '80s coming to Earth and visiting the Pope and going on Letterman to straighten out a few things, makes extensive use of public celebrities (Pope, Brokaw, Letterman & Shaffer, the Replacements, Elvis Costello, the Reagans, etc.). He included a disclaimer at the beginning along the lines of what's posted upthread. As far as I know, the guy never got sued.
posted by WCityMike at 1:09 PM on June 17

As the OP of the previous thread on this topic, I want to add that my fictional account of Bjork and I eloping to Namibia to live with the Himba peoples has been rejected by all the major publishing houses.

Watch for it on an Internets near you!
posted by bjork24 at 4:17 PM on June 17 [1 favorite]

It's possible to finesse this.

Reading Vernor Vinge's Rainbows End, the character named Rabbit (or Mysterious Stranger) is never actually described as looking like Bugs Bunny, and in one or two instances is described as looking like a live rabbit. But because Rabbit is insolent, charismatic, and all-powerful, our collective imagination overwrites him with the image of Bugs and Vinge is spared lawsuits from Disney.
posted by bad grammar at 7:43 PM on June 17

Now that the mods are celebrities, you can say what you want about them.
posted by lukemeister at 10:23 PM on June 17

Or speaking of finessing, "Maxi Ryder" in Jennifer Weiner's Good In Bed is kinda based on Minnie Driver.
posted by jenfullmoon at 3:30 PM on June 20

For that matter, annoying blonde girl in Lost in Translation is supposed to be very thinly disguised Cameron Diaz, and mopey husband is Spike Jonze (Coppola's husband at time).
posted by WCityMike at 10:22 PM on June 20