Note from Nick: This is a guest post submission that brings up an interesting (often forgotten) point: there could be legal issues regarding using “real life” people, namesakes, etc. in your story. It’s something I’ve never really considered, so read on!
Sometimes a story cries out for an appearance by a real person, perhaps a famous person your readers already know. Or an unknown person who’s real life is indeed stranger than any fiction you can conceive.
Did you ever want to write Zac Efron into your romance novel or have Isaac Asimov visit the world you’ve created?
Or maybe your next door neighbor lives a life that seems so mysterious and creepy it calls out for a story of its own, even if it’s a story that you’ve completely imagined.
You know you can’t write the story of Stormy Passion with the real Zac Efron as the main character, or have Issac Asimov visit your beautifully crafted dystopian world, or have Nelson Your Neighbor kidnap and murder little girls on your block, because there are all kinds of hairy, tentacled legal issues lurking in the dark ready to spring out and get your book pulled from the bookshelf (wooden or digital) or never be published in the first place.
Or can you write that story?
Woody Allen has done it in his films, think Midnight in Paris. Joyce Carol Oates wrote Blonde reimagining a memoir of Marilyn Monroe. There are many examples of real people, famous or not, dead or alive, in fiction that are on bookshelves everywhere.
Getting Sued for Defamation or Invasion of Privacy Can Ruin Your Day and Your Career
After spending hundreds of hours crafting and editing a story, having a cover beautifully designed, hitting the publish button and launching a marketing campaign, a writer deserves congratulations and celebration. Instead, being served with a lawsuit alleging defamation or invasion of privacy would cause most writers to become physically ill – especially self-published authors who do not have a traditional publisher to help defend them, or may not have an insurance policy to pay the defense bill. Also, being sued may make you unmarketable to publishers in the future. It’s kind of a one bite rule.
Of course, the situation may not escalate to a lawsuit right away. It could begin with a cease and desist letter from a lawyer to the stars. The letter may read something like this, “I represent [famous person] and by selling a book in which [famous person] is the main character, you have violated his right of publicity. You have no right to trade on the name that he has built for himself and we demand that you immediately cease (stop what you’re doing) and desist (stop what you’re doing), destroy all copies of the book and send us any money you have made.” A cease and desist letter is not as bad a getting sued, but it will still make you sick to your stomach. You will have to deal with it.
Not Knowing the Law Will Scare a Writer into Not Writing the Story
Defamation, right of publicity, invasion of privacy — all sound ominous. They can be scary if you do not know what they mean. Most fear comes from ignorance. To dispel the fear, understand what the phrases mean and what they do not mean. Educate yourself beyond the rote saying that, “Truth is the ultimate defense in a defamation case,” for example. There’s a bit more to it than that. Invasion of privacy is more than just peeking in somebody’s bedroom window.
It is worth your while to understand these legal concepts if you are going put real people in your stories. Remember to refresh your understanding of these concepts if you write about real people in the future. Put this in your memory bank, as one of my middle school teachers used to say.
Write Within the Law
This area of the law can be slightly different in each of the 50 states. There are different rules internationally, as well. But certain general concepts apply.
Defamation is publishing a statement that exposes another person to public scorn, hatred, ridicule or contempt. The First Amendment comes into play here. Essentially, before a public figure can be defamed there must be some degree of intent known as actual malice. A regular person can claim defamation if the false statement is made when the writer merely should have known better.
Invasion of privacy involves a bundle of different claims including the right of publicity.
First, there’s intrusion upon seclusion which is an intentional intrusion into a private place or affairs of another and that intrusion would be highly offensive to a reasonable person. This is the Peeping Tom offense.
Second, there is the claim of appropriation of name or likeness, which is the intentional use without consent of another’s name or likeness for your own benefit. This is the right of publicity claim. A person who is not famous (who does not make money from who they are) will not have this claim.
Third, there is unreasonable publicity given to private life which means publishing facts which are not of valid concern to the public and which would be highly offensive to the reasonable person. Something like, “Your mother wears Army boots.” True but embarrassing, and no one needs to know.
The fourth invasion of privacy claim is false light which is when you make somebody look like something they are not in a way that is highly offensive – having a person appear at a KKK rally as though a participant when they are not, for instance.
Use Care in Choosing Who You Include in Your Story and How You Include Them
One of the best ways to avoid being sued is by obtaining a release from the person or the estate of the person about whom you wish to write. Unfortunately, releases are not easy to get. The person will want to review the work and while they happily may approve of your depiction of them, if they do not, you’ll be stuck. You won’t want to give someone an editorial say in your work if they don’t like what they’ve read about themselves.
To avoid an invasion of privacy claim, describe an action or event that takes place in a public location in a truthful manner. Do not take an event and try to make it look like something it isn’t. Another option is to change the characteristics of the person to make them unidentifiable from whom you really had in mind.
If you wait until the person is dead before you write about them, you may have some added protection. In many states, the right of publicity and claims for defamation die when the person dies. That is not true in all states, however. The right of publicity exists after death and for the benefit of heirs in the state of California, for instance, where Hollywood has a strong legislative lobby.
Don’t include famous people in lead roles, don’t include them in subordinate roles, but you should feel safe including them in cameo appearances based on fact. For instance, Kate Winslet was at the Toronto Film Festival last week. During an interview, she joked about her difficulty at customs during her travels from England. You can use her story in your story. Maybe your character saw her at the airport. There are many truths you can mine from celebrity interviews about their childhood, their marriages, their passions, their pursuits. You can use any or all of them, if they work in your story. They are fact. What you cannot do is reimagine those facts. So, by limiting the role of living, famous people in your story, you are not trading on their celebrity and you are not violating their right of publicity. However, you should not use the fact that you have included them in your story in any of the marketing of your book.
Use a disclaimer: “This is a work of fiction. All characters and incidents are products of the author’s imagination and any resemblance to actual people or events is coincidental or fictionalized.”
Parody provides another possibility of protection from a legal claim. The more absurd the circumstances the less likely the public will believe them to be the truth about the person you are writing. Parody may not work in your story, but it is a option.
A final note, this article is designed to provide helpful information based on what I have learned over the course of my legal career. It is not intended to provide specific legal advice.
Kathryn Goldman has practiced intellectual property law for over 25 years working with creative individuals and businesses to protect their rights. She represents writers, artists and film makers. She can be reached at kgoldman”at” charmcitylegal.com. Follow @KathrynGoldman
Hey there, thanks for this. My concept is simple, clever, but possibly fraught;
The idea of Julia Child as a Nazi hunter during her time in France in cooking school.
Basically, silly, frumpy big boned foodie by day, but ruthless assassin at night.
I have a feeling that the Julia Child estate would sue, or write a cease and desist.
Would a changing of the names be any help, or is it indeed a parody? Isn’t it the same concept as putting Marilyn Monroe in a movie or a fascimile of the blond bombshell who is not Monroe? Knowing that the JC Foundation and estate is extremely protective of her likeness, brand and image, i am hesitant to move further, but love the idea.
I was unaware this would be posted publicly. Could you please delete this request, inquiry.
Too late Chris, Google’s crawlers indexed this site within hours after your comment appeared. Internet Content Is Forever.
But don’t worry about it. You are a creative, and this is pure conjecture, until your novel is published.
So I love your idea! I wrote something similar which wasn’t as exciting; probably because of that, it was never published. I was pretty sure the radio host Melinda Lee would not mind being featured as my main character, but since I wasn’t sure (she needed a character flaw and a character arc, after all), I came up with a completely different name but went ahead and shamelessly based the character on the real-life person, whose radio show I enjoy.
You can do the same thing. Evoke “Julie Child” without ever using that name; now you have the freedom to change a convenient detail or two to make your story even stronger.
This is what David Weber did with Horatio Hornblower: not a real person, but a beloved main character of C.S. Forester’s series of novels. David Weber reimagined a distinctly Horatio-like naval officer in a series of SF adventures: Weber kept the initials but changed the gender and most other minor details, like what it meant in the futuristic culture to be “yeoman-born”. The estate of C.S. Forester hasn’t had any trouble with the adaptation as far as I know. Possibly because Weber’s acknowledgment of Forester’s brilliance has attracted a whole new generation of fans to buy the Hornblower books, just to see why Weber found them so inspiring.
…but also because Honor Harrington shares very little in common with Horatio Hornblower, besides a hauntingly similar character arc, a similar tactical brilliance, a similar blindness to their own excellence in command, and eerily similar ship-handling challenges despite seven thousand years of technological development between the “wet navies” of Hornblower’s time and the “star navies” of Harrington’s time. (So yeah, an obvious update of Horatio for fans who know him, but with plenty of “plausible deniability” worked in.)
I guess that comment you left would be great evidence in court, lol. It can be removed though, google crawlers or not.
Are there any problems with a fictional character commenting on a real news story and mentioning individual names – for example a victim that has been killed in a high profile case or the accused and convicted killer?
It depends on how your fictional character characterizes that real news story and those real individuals who are named. I suspect you could finesse that, especially if the named real individuals are not celebrities, and especially if their names become common terminology after—or because of—that real news story your character comments on. (For example, an Amber Alert is common parlance, so it would be easier to defend a scene in which your character comments on the news story of Amber’s kidnapping, or the story of the trial of Amber’s murderer. Just don’t defame anyone as you do it.)
We own a piece of land that was owned by an old farmer who died 25+ years ago. I’m working on a fictional Halloween story that we would like to use on a web site for a business that we operate on the land. In the story, the main character is surrounded in mystery because of people near the farm that went missing. Can I use the old land owner’s name in my story and site?
I have a scene in my novel where my main character goes to a festival and sees several real artists perform. He ends up disrupting the performance, and has a short conversation with one of the artists, before he’s thrown out.
Am I allowed to use the names of real life artists, or must I make up fake ones?
What if the action of the public figure is fact? Can the name be legally used if the author experienced these fact (s) privately? The public figure is not the main character. Several public figures play a significant role with the main character in the memoir that shape the main character into whom they’ve become; whether it be positive or negative.
Thanks for the article! It gives a good starting point for researching the legalities of using historic figures in my work.
If this has been answered forgive me, I just found this site. Can one write a war novel and place General Patton in the book doing or saying things to the main character ( who is fictional), or the same and referring to the original Getty founder as a bootlegger with mafia connections, or having the main character in a made up meeting with Pres JFK…or would any of those spell defamation. All dead persons who are well known, but putting them in real situations they were actually in or false situations for the benefit of the story. Thanks
Question (from a total newbie)– Any legalities around publishing (online or in book form) general life advice that random, everyday people have verbally given you? Do you need to quote/cite/credit these statements/people? Or get permission from the people to publish in any way?