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.

Filed under For Novelists, the business of writing. You can also use to trackback.

There are 15 comments. Get the RSS feed for comments on this entry.

  1. 1. Marie Brennan

    This is dead useful, Daryl. Thanks!

  2. 2. C.E. Petit

    Although I think this comes mostly to the correct conclusion, it misses a crucial theory and case that points out the serious problem with Class II (living celebrities): the Tony Twist saga and infringing on a living celebrity’s ability to exploit his/her celebrity for profit.

    Tony Twist was a hockey player with the St. Louis Blues, well known for his status as an “enforcer”. Todd McFarlane — yes, THAT Todd McFarlane — admitted to using Tony Twist as a sort of model for the vicious gangster thug Anthony “Tony Twist” Twisterelli in the Spawn comics. The real Tony Twist sued for misuse of his name and persona… and won a $29 million judgment, later reduced after appeals and a new trial to $15 million. This case, known as Doe v TCI Cablevision for procedural reasons, explicitly rejects aspects of the Winter case out of California. (You can find the most helpful opinion at:
    http://tinyurl.com/595loz
    from the Missouri Supreme Court. Sorry about the TinyURL link, but the actual link is quite long.)

    The key difference between the Tony Twist and the Winter cases is that Tony Twist was able to point to actual damages to his commercial endorsement opportunities from McFarlane’s comic, but the Winter brothers were not. In other words, making fun of a celebrity may be ok… but don’t do so in a way that interferes with his/her business as a celebrity. That’s why lampooning OJ as described in the original article is probably ok (plus, that’s supported by a jury verdict finding him liable in the civil matter), but — purely hypothetically, of course — doing the same kind of thing to John Yoo (the law professor who wrote some of the most egregious “torture memos”) would be dicey.

  3. 3. Daryl Gregory

    Danke, C.E.!

    I think the lesson in the Tony Twist story is to stick to dead people. Or at least be a little more clever when you rename your characters.

  4. 4. lucidkim

    I’m researching this now – still in the writing stage of my novel and have planned to use a few real (still living) celebrities in a completely fictional story. I’ve considered contacting them directly and asking them but since I’m not finished (about 1/2 way) with my book I don’t want to throw it out there until I am…but I also hate the idea of my entire book being non-publishable because I’ve taken this path with it. Nothing at all reflects negatively on the celebrities in question and none of them are superstars – but at the same time that whole “right of publicity” might get me. Thanks for posting this.

    kim

  5. 5. tim

    This is useful – found it by googling “libel fiction public figure.”

    There’s one thing I’m still curious about… what’s the precedent for fictionalized representations of living celebrities (in this case, the celebrity’s full name is used) where part of the depiction is truth (found in public interviews, documents) and the other part is invented or extrapolated, but the entire thing is labeled as fiction?? There seems to be a third category that is neither truth nor opinion that only exists in fiction that remains unaddressed. I mean like… the category of imagination. Whatever we decide to invent or project or fantasize onto famous people.

    In my case, nothing about the content is likely to negatively impact the person’s life in any way… it’s a primarily positive/sympathetic depiction, but it might get into that embarrassing material territory (for instance, in interviews, this celebrity says he was on anti-depressants, in my story, the anti-depressant is named and the celebrity confesses that because of the anti-depressant, he was unable to get an erection the night he met his current life partner.

    …And how skittish are markets (primarily interested in small academic and independent lit journals) about this stuff even if you have a decent case?

  6. 6. Christina

    Hi Daryl – you said here you would address California law lower down, but I don’t see anything specifically about California right-to-privacy laws…Chrstina

  7. 7. Daryl

    Hi Christina,

    Sorry about that — I think I dropped a few sentences as a I rewrote.

    The DC Comics example was from the California courts, and California also has one of the strongest Rights of Publicity laws.

  8. 8. Alexei

    Very useful stuff, especially for beginning writers. I got here by searching “in fiction using famous names dead people” because the life of Shakespeare is central to my book’s plot. I didn’t think there would be anything there, considering his plays aren’t even copyrighted, but you can never be too careful–wanted to know for sure and now I know about way more than planned, which will be useful in the future– thanks so much for the fabulous post!

  9. 9. Emily

    Very useful. Thanks. Just to help anyone else wondering who qualifies as a ‘recently dead’ celeb, the California Astaire Celebrity Image Protection Act says it protects celebs until 70 years after their death:

    3344.1. (g) No action shall be brought under this section by reason of any use of a deceased personality’s name, voice, signature, photograph, or likeness occurring after the expiration of 70 years after the death of the deceased personality.

    But it seems pretty clear that using their name in fiction is fine at any time:

    3344.1.(a)(2) For purposes of this subdivision, a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.

  10. 10. Daryl Gregory

    Thanks for posting that, Emily.

    –d

  11. 11. Jennifer

    So, I am confused by Emily’s post…is it legal to use a dead celebrity’s name in fictional works because it is for entertainment? Is it only potentially libel if you use it for a non-entertainment purpose?

  12. 12. Daryl Gregory

    Hi Jennifer –

    Libel is when you something untrue that is damaging to their career.

    What Emily is talking about is whether under California law you can use a celebrity’s name or image in a work. For a work of art, you’re allowed to use the celebrity’s name. If it’s non-fiction, you can’t use the celebrity’s image or name to make money — for example, using Fred Astaire’s image without permission to sell vacuum cleaners.

  13. 13. Lesleigh

    Okay then I have a question.

    My boyfriend’s brother has been publishing online comics about his childhood. However, he isn’t actually depicting himself but my boyfrien’ds sister, mother, nan, and my boyfriend.

    He’s writing about rather humiliating and embarrassing information (I won’t post any details since its rather private) and didn’t ask permission to even depict my boyfriend in these online comics. It is very obvious who the characters are. Ie: the name Clark instead of Mark, the name rollins instead of collins, the drawing of their house and furniture layout are all the same. He even included a photo of himself, my bf and his sister IN the comic itself from when they were kids.

    Is this even legal and if my boyfriend asks him to stop drawing him in the cartoons, is he obligated legally to stop?

  14. 14. Vince

    Thank you for the information and the suggestion for publishlawyer.com

    I thought I was going to be in trouble as my novel takes place in actual public settings and two of my main characters were real people whose names I use thoughout the manuscript… but they both have been dead for over a hundred years so I don’t think I will be treading on their privacy rights…. Thanks again, great article.

Pingbacks

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

Author Information

Daryl Gregory

Daryl's a science fiction writer who lives in State College, PA. Several of his short stories have appeared in "Year's Best" anthologies, and his first novel, PANDEMONIUM, will appearing in Fall 2008 from Del Rey Books. Visit site.

Topics

Archives

Browse our archives:

RECENT BOOKS