Acceptable use of recent historical figures in fiction
February 2, 2010 8:14 PM   Subscribe

Can I publish my fiction about a deceased historic public figure without fear of action from his estate?

I'm publishing a collection of short stories, six of which are fictionalized versions of pivotal moments in the life of one public figure. They are clearly identified as fictional. What sort of legal, estate, or privacy rights do I have to be concerned about when publishing these stories? There have been a few other fictional stories and plays written about this person, so I know it can be done. If it matters he died in 1966.

Previously: here and here. But not specifically about someone who is dead. (bonus question: if I publish and distribute from a state that's not California, but I ship to California, am I still subject to their "Right of Privacy" law for public figures.)
posted by IndigoSkye to Law & Government (5 answers total) 1 user marked this as a favorite
Blah blah not a lawyer, but in the US, I'm fairly sure that you can't libel someone who is dead in most states.

Of course, if someone wants to sue you, they will, even if they have no legal basis, so there's no surefire way to know if you won't get sued.

Just a it Walt Disney?
posted by inturnaround at 8:33 PM on February 2, 2010

I think I gave enough hints for people to draw their own conclusions, and, versions of these stories are already published elsewhere online.
posted by IndigoSkye at 8:40 PM on February 2, 2010

I once heard that an author got into legal difficulties not because he defamed a dead person (not possible afaic) but that he mentioned his subject had an affair with a woman, and he named her. She sued and won.
posted by BrokenEnglish at 2:29 AM on February 3, 2010

IANAL. Using Walt Disney as an example, Richard Powers incorporated many fictionalized and non-fiction details about Walt Disney in his book Prisoner's Dilemma. I'm not aware of legal action from Disney's estate, though that doesn't mean none were taken.

I believe that current defamation law does not extend to deceased people in any US state, with the possible possible exception being if a living person is defamed by implication. (1, 2)

There are other areas to examine, however, aside from libel. Applicable law depends on what you are using in your story. It also depends on the estate. Here is an interesting article on the ethics of fiction writing by Professor Ron Hansen.

As inturnaround stated, an estate might sue regardless of legal basis (or, perhaps, based on a difference in legal interpretation). Stephen Joyce has gained more than a little notoriety for his relentless and zealous litigation against authors, publishers, biographers, scholars, playwrights, city governments, etc… to protect the legacy of his grandfather, James Joyce. Most of Stephen Joyce's lawsuits pertain fair use and copyright, though some would argue his is often a misuse or abuse of those laws.
posted by skenfrith at 4:14 AM on February 3, 2010 [1 favorite]

Addendum: Here is an article about libel in fiction by First Amendment scholar David L. Hudson Jr.
posted by skenfrith at 4:17 AM on February 3, 2010

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