I was wondering what legal problems (if any) are associated with using real people as characters in fiction? I’m not talking Elvis, or someone who would obviously have an estate with a problem, more like a fantasy novel about people who have disappeared through the ages (like Louis Le Prince, or Dorothy Arnold.) What’s the rule? Is it easier to just avoid it altogether and name them something else?
Le Prince disappeared in 1890 at age 48; he is certainly long dead by now. That means neither he nor his descendants, nor his estate, has any privacy or reputation rights, and that anyone is free to create a work “based upon” or “inspired by” his life, even if it takes issue with Brian Selznick’s Invention of Hugo Cabret about who really developed the first motion picture system, Lumiere or Le Prince. There is no legal remedy for “blackening the good reputation” of anyone who is dead.
No one owns history, and when history is cloudy or disputed, anyone can fill in the gaps as they see fit, including fictional details, as is frequently done with stories about Amelia Earhart, Robin Hood, the much married and divorced King Henry, and other “legendary persons.” Everyone has a free speech right to interpret history, or to tell or even revise it to promote their agenda.
When a writer uses a real, living person as a character in a literary work, then there are several potential issues. The expression rights of the First Amendment have to be weighed against the specific facts. Possible issues include: 1) defamation (the publication of false facts about a person, asserted as true, which injure reputation; google this: Palin lawsuit McGinnis); 2) privacy (public disclosure of private facts); 3) false light (telling the story in a manner that leaves a false or misleading impression); 4) misappropriation (“free riding” on other people’s work); 5) right of publicity (the right of famous persons to commercialize and exploit their name, likeness, image, reputation, or distinctive singing style; this is a property right that can be bought and sold (Presley, Three Stooges); 6) infliction of emotional distress, called “outrageous conduct” in some states. If the real person’s story has already been published, then there may be copyright issues. If the subject person is the founder or public image of a company (“Newman’s Own”, “Trump Tower”) then there could be trademark, product disparagement, unfair competition or other commercial issues.
The legal theories and standards of proof vary according to several factors, including: whether the portrayed person is a “public figure” (well known to the public, at least within their realm of fame); the degree to which the subject person has sought publicity or publicized their personal life (Kardashians, Charlie Sheen, Sarah Palin, Chaz Bono, confessional autobiographies, Facebook accounts); how broadly the story has been disseminated or published; the degree of care exercised to check the facts and avoid infringing on other people’s rights; whether a retraction or correction was requested or issued; and whether a malicious intent can be shown. For living persons, the safest course is to get their permission in advance, in writing.
“Is it easier to just avoid it all together and name them something else?” Yes, but it is wiser to do more than just change the name. To make real the legalese about “any relationship to any real persons, living or dead, is purely coincidental”, also change several of the personal traits and life story.
-Guest Editor Randy Morrison
Randy Morrison was a rock and roll disc jockey and radio music programmer in the age of The Beatles and Led Zeppelin. Today he is a nationally recognized authority on the intersection of First Amendment and zoning law, and also assists authors, agents, and editors with copyright, trademark, and other aspects of literary law. As an author he writes reference books for attorneys and mid-grade fiction about space-traveling circuses, often while listening to symphonies by Mahler and Tchaikovsky. His email address is firstname.lastname@example.org; he can be reached by phone at 619.234.2864.