This week one of our subscribers asked about using a real person in her fiction. RuPaul was making an appearance in some sort of fashion (and in fashion I might assume too). The question is a common one by writers and usually centers on a character modeled after a family member, friend, or acquaintance. Or maybe a celebrity has a cameo role. Or possibly a famous person or corporation is somehow woven into the plot.

J.K. Rowling used her chemistry teacher, John Nettleship, as a model for creating Severus Snape. Edward Gein, who kept the skin and bones of his victims, inspired Buffalo Bill in The Silence of the Lambs. Dr. Joseph Bell, a surgeon known by Sir Arthur Conan Doyle, inspired Sherlock Holmes.

But just because these writers did it, does that mean it is legal?

Maybe. Depending on what you do (I know, that was such a lawyer way to answer the question).

There are three areas of law writers should be cognizant of when using real people, corporations, or places in their fiction:

1. Defamation;
2. Invasion of privacy; and
3. The right of publicity.

Do not let the legal terms scare you. With a little understanding and guidance, you can easily navigate these legal landmines and avoid stressing that your published work will land you in court.

A lot has been written about using real people, places, and corporations in fictional works. For example, Kathryn Goldman’s How to Use Celebrities and Other Real People in Your Story, Helen Sedwick’s How to Use Real People in Your Writing Without Ending Up in Court, Lloyd Jassin’s The Legal Consequences of Using Real People in Fiction, Jane Friedman’s Can I Use Other People’s Names and Stories?, Ed Sikov’s How Not To Get Sued When Writing About Real People, Kathy Murphy’s Keeping It Real: A Rough Guide To Using Real People As Fictional Characters, and my earlier Sidebar Saturdays article about How To Avoid Libel In Fiction.

I have compiled the information and guidelines for you below. If you want more information, have a gander at the articles above.

Defamation

Otherwise known as libel, we usually hear this legal term when a gossip rag damages a celebrity’s reputation by printing false rumors of a derogatory nature like a sexual escapade, or an embittered lover tweets about his famous ex-paramour’s heroine addiction. But libel in fiction happens too, as well as in memoirs and works of non-fiction. Thankfully, for writers, the success rate for libel suits tends to be low. Even so, no writer wants to spend time and resources defending themselves against a claim of defamation. Where is the fun in that?

Libel is the publication of a false statement that injures a person’s reputation (as opposed to slander, which covers the verbal form of defamation). The statement must be false and factual. The defamed person need not be identified by name. The writer need only use enough identifying information in creating the fictional character so that the real person is identifiable to readers.

The real person must be living to sue for defamation (the dead cannot suffer reputational harm). Business entities and small identifiable groups (like a lacrosse team) can be defamed too. And there must be some degree of fault by the writer (like malice, reckless disregard, or negligence).

Here are the general rules a writer should follow when creating fictional characters based on real people:

1) Do nothing to disguise the fictional character based on the real person, and avoid depicting them in an unsavory manner; or

2) Substantially disguise the fictional character so readers cannot identify the connection to the real person, and then be as defamatory as you want.

The problem arises when the writer does not disguise enough so the connection between character and real person is easily linked, or he wrongly assumes the real person will not consider his statements defamatory.

 

Libel defenses

If you find yourself subject to a claim of defamation, your best defenses would be truth, opinion, or parody/satire.

1. Truth is a complete defense to a defamation claim – no false statement, no libelous statement. Even if minor inconsequential facts are incorrect, libel does not exist if the overall statement is true.

2. Opinions are protected (because opinions are neither true or false). This defense, however, can be tricky to navigate. Just because you say it is your opinion will not keep the statement from being defamatory. Merely implying a false statement can be enough. “In my opinion, she is an alcoholic” is just as defamatory as “she is an alcoholic.” These issues often arise with memoirs and biographical works. The best way to utilize this defense is for the writer to provide in their work the underlying facts on which the opinion is based, like she was convicted of a DUI, and then went to rehab.

3. Parody and satire genres exaggerate material for comic effect, which is not considered to be true or a statement of fact.

These are DEFENSES, which means you use them after you have been sued. Instead of relying on a defense, do your best to avoid a libel claim before you publish.

 

How to avoid a libel claim

1. Disguise the character so there is no connection to the real person. Change the character’s sex, ethnicity, name, residence, age, physical traits, odd quirks, personal background, familial connections, profession, friends, time, setting etc. The more unsavory your character, the better you should be at disguising any identifying detail that will link the character or company to the real life person or corporation. Changing the name and physical description is not enough. What you are attempting to achieve is a character that does not significantly parallel the life of the real person the character is based on. Same for a business. Use common sense when justifying the risk. If you create a fast food restaurant that sells beef tainted with mad cow disease, make sure that company does not appear to be based on a real fast food chain.

2. Do not use a name that suggests the real person or entity.

3. Use a disclaimer or a nicely written acknowledgement. One of my favorite books is Running With Scissors. In 2007, Augustine Burroughs settled a defamation suit filed by a family depicted in his memoir. He agreed to call his work a book instead of a memoir, and acknowledge that certain real families portrayed in his book might have memories of the events that differ from his. While disclaimers can help, it does not prevent readers from identifying the real person and the defamatory statements, and often will not shield a writer from liability.

4. Wait until the real person is dead.  Be careful, however, you do not defame someone related – the wife of the dead man you claimed was head of a family-run meth lab may bring her own defamation suit.

5. As tempting as it might be, do not use your novel as revenge. If you think readers will recognize the real person whom you used to create the negatively portrayed character, layer in as many fictional details as possible to distance the character from the real person.

6. Do not publicize the fact you have used the person as your character inspiration. I once heard a writer state her method for avoiding defamation was to give her ex-boyfriend small genitals, claiming, “He’d never admit the character was based on him.” While far-fetched facts help a writer’s argument that no one would believe the character and real person are one in the same, admissions like the above do not help.

7. If you are writing a memoir or a biography, document your fact-finding and keep copies for proof that you have not made negligently false statements. Tape recordings are the best when interviewing. Next to that, contemporaneous notes are helpful (all of which should be dated, signed, and the place and source identified).

8. Releases/Written Consent – Get a signed release from the real person you used as the model for your fictional character, or for those you write about in your memoir or biography.

9. Retractions can be useful under the right circumstances. Some states have retraction statutes, but these generally apply to newspapers, radio stations, and magazines. There are a few cases that involve online defamatory statements and the use of retractions to minimize damages. Retraction statutes do not generally apply to book publishers and could, if used, be considered an admission that the statement was false and defamatory.

10. Do not assume your publisher will take care of litigation that arises because of your book. Most publishing contracts require indemnification for defending defamation and privacy claims based on your work. The onus is on you to avoid any legal snafus when it comes to such claims.

11. If you are still worried about risky content in your work, use your publisher’s legal department or consult your own publishing lawyer to review your manuscript.

 

Invasion Of Privacy

People have the right to be left alone. So, when private facts that are not in the public interest are publicly disclosed, invasion of privacy has occurred.

While the truth can deflect a defamation claim, often the truth when disclosed can be the basis for an invasion of privacy claim. Usually, invasion of privacy occurs when:

1. Private facts that are not of public interest are disclosed;

2. There has been intrusion into a person’s secluded life; or

3. Someone is portrayed or misrepresented in a false light, i.e. portrayed in way that is highly offensive to a reasonable person.

For invasion of privacy to apply, the injured person must be living. The disclosure of private facts must cause harm to the person’s reputation (personal or professional). Mere embarrassment usually is not enough. And the information must not be of public interest.

The fact disclosed must be a fact that an injured person has a reasonable expectation would remain private. If the act or facts you want to write about occur in public, then most likely there is no expectation of privacy.

Public figures and celebrities usually have trouble proving invasion of privacy because their lives are of public interest and there is less expectation of privacy. As Helen Sedwick mentions, “a movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointed her way.” But sex caught on camera when it happened in a backyard surrounded by a privacy fence that required a ladder to see the private act would be an invasion of privacy.

Leniency is given to a memoirist for disclosure of facts in his own stories versus a journalist or biographer telling someone else’s story.

 

How to avoid an invasion of privacy claim

1. Get a release from the person if you can. If not, then stick to the truth (which for you may be different from their truth).

2. Avoid disclosure of facts that the person expected to remain private, and were not in the public’s interest (he was so drunk he zipped up his privates…pun intended).

3. If the action took place in public, it is fair game (she smoked crystal meth at a concert).

4. You can avoid the invasion of privacy problem completely by masking the person’s identity – a change of name and characteristics like you would to avoid a defamation claim would apply.

 

The Right Of Publicity

Misappropriation of the right of publicity is using someone’s name, likeness, or identifying characteristics for advertising, merchandising, endorsements, promotional, or commercial purposes without their permission. The law normally applies to the living, although some states will extend the right of publicity to a person/estate of someone who is dead. And it only applies to a person who makes money from who they are, i.e. famous people.

 

How to avoid being sued for misappropriation of the right of publicity

1. If you do not have permission, then do not use someone’s name, likeness, or identifying characteristics for advertising, merchandising, endorsements, promotional, or commercial proposes. You might think Channing Tatum is hot, but using him as character in your book equates to using his celebrity status to sell the book.

2. Likewise, you would not want to put Lee Child’s endorsement on your book if he has not given one.

3. And of course, common sense dictates you cannot use a famous person’s name as your pen name since that would be taking advantage of their reputation for commercial purposes.

4. A real person, famous or not, can make cameo appearances. Like Kathryn Goldman notes, “if your hero attended a rally where Emma Watson actually spoke as an activist for gender equality, you can use that in your story. Emma Watson really is an activist for gender equality. If you read an interview of Liam Hemsworth, you may learn many things about his private life that are true that you can use in your story.”

 

In general, the rule I follow when attempting to avoid issues of defamation, invasion of privacy, and right of publicity in my fiction is: when in doubt, fictionalize the facts.

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Photo Credit: nayrb7 | Visualhunt.com | CC BY

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