Daryl Gregory July 10th 2008

Real People, Unreal Worlds–Are you Liable to Libel?

A friend of mine who’s not a writer recently asked me if I would get in trouble with using real people in my novel. In my first book, coming out in August, I have walk-ons by a few dead-but-famous people (P. K. Dick, Carl Jung, Eisenhower), as well as a few famous-but-not-dead people. Notably, I have a “demon”/Jungian archetype execute a public figure for lying in court. (Okay, the public figure was O. J. Simpson.)

I laughed and said, Of course not!

I had reasons for my early confidence. After all (I explained to my friend and myself), we’ve all read plenty of books that feature real people. And how many movies are “based on true events”? Most books have some kind of disclaimer on them, such as “any resemblance to persons living or dead is purely coincidental.” (Which is a lie, of course; most of those resemblances are anything but.) But I figured that that legal figleaf could cover a great many indiscretions.

I assumed that I could use the names and likenesses of real people as long as the people were dead, or if not dead, then so famous that they were considered public figures, or if not public figures… well, those people I could use as long as I changed their names and perhaps some physical details.

Also, the world of my novel is clearly not our world—for one, people are regularly getting possessed by alien personalities that might be Jungian archetypes or, well, anything.

And thirdly, my publisher—Del Rey Books, SF imprint of the mighty Random House company, which is owned by the even mightier transnational corporation Bertlesmann— bought the book, and the issue of using public figures never came up in the editing process. They’re professionals who’ve published a huge number of books; they’d know, wouldn’t they?

Last, there was this little thing called the First Amendment. I was an American being publishing in America–surely I was covered by the constitution.

Maybe I should do some reading

So, I was feeling cocky. But because all my confidence was based on hearsay, I decided to do a little research, even though my book’s already being printed and it’ll be too late to save me from any lawsuits.

One of the first surprises was learning that in the United States, each state has its own libel laws. And theoretically the writer can be sued in any state in which his or her book appears. And some states (like California, which I’ll discuss below) have very different laws about libel and use of celebrities’ names and likenesses.

One of the most useful articles I found was on the PublishLawyer.com site. It covered the three main legal issues with using real people in fiction. I suggest you read the entire article, but here are the pertinent defintions:

• Defamation—doing injury to a living person or organization. Spoken defamation is slander, and written defamation is libel, which has more legal consequences. With slander or libel, truth is always a defense. If it’s true, or if the fact is clearly expressed as an opinion, it can’t be defamatory.

• Right of Privacy—Individuals can be protected from having personal, embarrassing information published about them that is not newsworthy or of “public concern.”

• Right of Publicity—Living celebrities can protect their name, likeness, or persona from being commercially exploited.

For any of these rights to be violated, the fictional character must be “objectively identifiable” as a real person. But that means that even if you change the character’s name or physical description, they might still be identifiable.

The Quick and the Dead and the Famous

Four classes of real people show up in fiction, and here’s my understanding about how the three legal issues are applied for each class. And in case you were wondering, I am not a lawyer, nor do I write about them, so use at your own risk, consult your own lawyer, yada yada yada. (How’s that for a disclaimer?)

Living People who aren’t Celebrities

This is the most protected class of people. You can get in trouble in two ways:

• If you state as fact something that isn’t true and does damage to the person’s reputation, AND the plaintiff can prove that the publisher showed “actual malice”, you could be sued for defamation.
• If you reveal embarrassing facts that the public does not need to know about (for example, your mother-in-law’s pornography collection), you could be sued for violating that person’s Right of Privacy. If you’re writing about things that are in the public record, or private things that the public does have a right to know about (like crimes), then the person has no Right of Privacy.

Living Celebrities

Public figures have less of a Right to Privacy than non-celebrities, and fiction writing is protected by the First Amendment. If you are not defaming the celebrity, and you are using them in a purely factual way, you do not have to ask the celebrity’s permission—though Daniel Steven at PublishLawyer.com suggests you do it anyway.

Even if you do defame them, the plaintiff has to prove that the publisher acted with “actual malice.” I’m not sure how the plaintiff proves that.

Here’s a case where the plaintiff made their case, though it happened in Britain. The author, D. J. Taylor, named his main character, an anti-hero porn director, after a real person who was a publicly known media director. The Real Person sued the publisher for defamation, the case was settled out of court, and the author was obliged to pay half of the settlement.

Living celebrities also have in most states a Right of Publicity that protects their name, likeness, or persona from being exploited in purely commercial spin-offs of your work—like T-shirts, posters, etc.

For example, this SFWA bulletin article by Steve Carper discusses a case in which DC Comics was sued by the Winter brothers (Edgar and Johnny, those famous albino rockers) for using white haired, red-eyed characters called “The Autumn Brothers” in a Jonah Hex comic. The Winter brothers lost; the judge noted that DC had transformed their likenesses sufficiently when it made the Autumn Brothers into half-man/ half worm monsters.

Carper also covers a case in which the musical duo Outkast was sued by Rosa Parks for recording a song named “Rosa Parks.” A lower court found that Outkast was using her name for non-artistic, purely commercial reasons. The case was settled in 2005 with Outkast admitting no wrongdoing, but agreeing to work on projects to “enlighten today’s youth” about Park’s role in history.

Recently Dead Celebrities

I can’t find a legal definition of “recent,” but if we take this to be, say, the last 50 years or so, this class of people seems to be generally fair game.

However, they do have a Right to Publicity just like living celebrities. So, don’t use their likeness for those T-shirts and posters we mentioned above. Also, for some dead public figures (the PublishLaywer.com author mentions Elvis), the name and likeness may be protected by trademarks and copyrights. (I think there’s probably a series of articles just on that topic.)

Long Dead Celebrities

Have at them! From everything I’ve read, it’s perfectly legal to write fiction in which Abraham Lincoln gets it on with a time traveling Julius Caesar.

The verdict, your honor?

I think I’m mostly okay. The people I used in my book are all public figures and most of them are dead. The living celebrities–I’m thinking of O. J. here–might feel defamed, but it would be tough to prove that having a demon execute you in a fantasy novel is a statement of fact about real-world guilt. Then again, I’m not a lawyer.

But my greatest protection may be something that Charlie Stross pointed out in a message on the private sf novelist’s list – science fiction writers just aren’t worth suing. I’m certainly not. O. J. couldn’t buy back one of his signed football cards for what I was paid.

As the old joke goes, the difference between a pizza and a science fiction writer? A pizza can feed a family of four.

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