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