Do you ever worry about using real people in your writing?
Fiction writers often worry about using real people’s names. Even memoirists and nonfiction writers identify people by name and worry about the ramifications. Can writers model characters after real people and name names without getting sued?
Yes, they can, with some common sense limitations.
In the following article, I will talk about the legal risks of using real people in your writing; namely defamation, invasion of privacy, and misappropriation of the right of publicity. A thorough discussion of these issues would fill a bookcase, so don’t read this post as the definitive word. My goal is to help you spot issues so you know when you need to learn more or seek expert advice.
When considering using real people in your writing, you’ll want to take a look at the following:
What Is the Right of Publicity?
Suppose you want to use Brad Pitt as a character in your book. (Maybe it’s a juicy romance!) Does it matter if he is a small character or a major one? Can you put an image of him on your cover?
What about Marilyn Monroe? Is it safer to use someone who’s dead?
What about your Aunt Ruth who’s not famous but had a compelling life story?
Like many legal questions, the answer is–it depends.
The Right of Publicity means a person’s right to control the commercial use of his or her name, image, voice, and life story. It is derived from the right of privacy, and not copyright. It borrows some concepts from trademark law especially now that a person’s public persona is called a ‘brand.’
You do not have to be a celebrity to have a Right of Publicity. Everyone owns this right. If someone were to use your image for commercial purposes, you would have a right to stop them and collect monetary damages.
The Right of Publicity is separate from copyright. Suppose you paid a photographer $1,000 for permission to use an image of Bradley Cooper on the cover of your romance novel. You would not have a copyright problem since you obtained permission from the copyright owner, but you might have a Right of Publicity problem if neither you nor the photographer has a release from the actor. Different rights, different owners.
Finally, the Right of Publicity is a claim under state law, not federal law. The laws vary from state to state. In some states, the Right of Publicity dies with the person; in others, it survives for up to 100 years! Since writers intend to sell their books everywhere, then someone making a claim could bring a lawsuit anywhere. So assume the most expansive law will be applied. No commercial use for 100 years after death.
What is Commercial use?
The good news is commercial use is narrowly defined when it comes to the Right of Publicity. It’s limited to:
Using a person’s image in an advertisement violates the Right of Publicity. The same applies to using lookalikes or soundalikes. Bette Midler won $400,000 from Ford Motors after they used a singer to mimic Midler’s voice in an automobile commercial.
Selling t-shirts, mugs, greeting cards, and other products with unauthorized images, is also a no-no. (I’ll talk about book covers below.)
Impersonating a celebrity for commercial purposes can also get you in trouble. Yes, all those Elvis impersonators either have permission from Elvis’s estate or are taking legal risks.
Implied endorsements or relationship
Wrongfully implying that someone has endorsed your work or was involved in its production violates a number of laws. This applies even to expressive and editorial work.
What Is Permitted?
In the United States, a person’s Right of Publicity is balanced against the creator’s First Amendment rights. The First Amendment usually wins unless the work is purely advertising, including political advertising.
Using someone’s name, image, or life story as part of a novel, book, movie, or other “expressive” work is protected by the First Amendment, even if the expressive work is sold or displayed. Therefore using a person’s life story as part of a book or movie will not be deemed a misappropriation of the Right of Publicity.
For instance, the family of Billy Tyne, the ill-fated skipper played by George Clooney in The Perfect Storm, sued Time Warner Entertainment for using their names for commercial gain without consent or compensation. They also complained that the actual events had been so fictionalized as to portray Tyne as inept. After a protracted legal battle, Tyne’s family lost. The Florida Supreme Court determined that the film was expressive speech and not “commercial.” The fact that the movie grossed more than $150 Million did not change its protected status.
Courts consider the following: Is the use of someone’s name, image, or life story reasonably related to the subject matter, and has the user added new, transformative elements to the work? In non-fiction, the courts also consider whether the subject matter is of public interest. Public interest is so broadly defined it covers hard news as well as celebrity gossip.
Suppose you write about a fictional character who has a crush on Jennifer Lawrence. He bumps into her at a restaurant and accidentally drops a plate full of food in her lap. The rest of the book follows his tale of overcoming humiliation and getting up the nerve to apologize. The book is unlikely to violate the star’s Right of Publicity. The use of her name is a small piece of a larger expressive work and is related to the story because it reveals character and triggers action.
The same rules apply to non-fiction and shorter editorial works such as news and magazine articles. Suppose you write about Meryl Streep’s career in a discussion about the evolving role of leading women. That work would be protected speech because her story is reasonably related to the topic and is of public interest.
I am assuming you are being truthful. If you are stretching or departing from the truth, then you must consider defamation risks as well. In The Perfect Storm case, courts were quite tolerant of fictionalizing a true story. They presumed audiences understand that a retelling includes made-up elements and are not statements of fact. You should, however, include a book disclaimer such as “This work is based upon real events. Certain events, dialogue, and characters were created for the purposes of fictionalization.” I’ll talk about defamation in a later post.
Parody, particularly when it comments on political, cultural, and social issues, is protected speech. As with fiction and non-fiction, your use of someone’s name, image, etc. should be related to your topic and a matter of public interest.
My advice about parody is don’t go halfway. Make sure it’s so clear your work is parody that you can argue no one would reasonably assume it’s true.
Even though parody is protected speech, if you disparage someone that person might come after you. The case may be weak, but you would still have a legal headache.
Of course, the safest route is to get permission and to get it IN WRITING. I have known more than one writer who relied on verbal permission to tell a life story, only to have the subject change her mind late in the process.
A Word About Book Covers
Personally, I get nervous about using anyone’s image, celebrity or not, on a book cover without permission. A book cover is too close to an advertisement or merchandise. However, using a person’s image should be permitted if it is related to the subject of the book and the book is of public interest (assuming you’ve taken care of copyright permissions as well). Consult legal counsel if this applies to you.
Whenever courts are balancing interests, the law is inconsistent. I can’t predict what is 100% safe or 100% unsafe.
In practice, consider how much you are piggybacking on the celebrity’s fame to sell your book. While it’s not a legal rule, the more your work calls attention to itself due to someone else’s fame, the more likely you are going to get a cease-and-desist letter or face a lawsuit. Yes, unauthorized biographies are written all the time, but typically the writers and publishers have to fend off bogus threats if not lawsuits before and after publication. Don’t go down that route alone. Get legal help and insurance.
Litigation is typically a result of deep pockets and high emotions. The deeper the pocket (whether it’s the celebrity’s or the writer/publisher’s) and the more intense the emotional response, the more likely you’ll be hearing from someone’s lawyers.
I don’t want to discourage writers from taking risks. The world is a better place because writers, filmmakers, and other artists take risks. But I hope to help writers get a little smarter about what risks are worth taking because they support the story or message, and what risks are simply not worth it.
What is Defamation?
In 1979, Penthouse Magazine carried a humor piece about a Miss Wyoming whose talent performance involved a sex act that caused a man’s entire body to levitate off the floor, all while she twirled her baton.
The real Miss Wyoming, Kimerli Pring, sued, claiming the article was defamatory and had made her life miserable. She felt raped by men’s eyes, and she lost students from her baton-twirling classes.
A local jury awarded her $26,500,000. Her lawyer boasted that publishers like Penthouse “can no longer drape themselves in the American flag and scream freedom of the press, while smearing little helpless people for profit.”
However, on appeal, the higher court reversed the ruling. It determined the article was not defamatory. Really? Wasn’t the article untrue and didn’t poor Kimerli suffer?
Let’s take a look at the elements of defamation for the answer.
To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (the target) must prove all of the following:
False Statement of Fact
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. (Although the writer may have violated someone’s right of privacy, a topic I will discuss in my next post.)
Opinions are not defamatory, no matter how insulting, as long as they don’t sound like statements of fact. Certain statements are considered opinions because of the context, such as Yelp and Amazon reviews. However, courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The question is whether the statement can be proven objectively. The more precise a statement, the more likely it will be considered a fact. Better to say “Joe gives me the creeps” or “I would never let him babysit my children.”
Parody is not defamatory as long as the absurdity is so clear no reasonable person would consider the statements to be true. That is the key to the Pring reversal. The appeals court explained that since it was impossible for Miss Wyoming’s sexual act to cause levitation, the Penthouse article could not be seen as a defamatory statement of facts.
Of an Identifiable Person or Organization
A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target.
For example, Andrew Greene is suing Paramount Pictures for $25,000,000 claiming he was defamed by the character “Rugrat” Kiskoff in the movie, The Wolf of Wall Street. Greene claims he is easily identifiable because Rugrat, like Greene, wears a toupee. In fact, Greene seems particularly offended that the toupee is “accentuated and mocked in an egregiously offensive manner.”
Frankly, the producers were asking for trouble by using something as distinctive as a toupee, but a toupee, particularly a bad one, must have been too funny to resist.
Typically, the target must be a living person, but companies have sued for defamation, particularly when the damaging statement is about food. Many states have passed “Ag-Gag laws” to protect local farming interests. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
That is Published
Published does not mean widely distributed. Only one person (other than the target) must read or hear the statement. Nowadays a single tweet can be heard around the world, so proving publication is easy.
Causes Reputational Harm
The false statement must be more than offensive, insulting, or embarrassing. Portraying someone as a jerk of a boyfriend, an insulting mother-in-law, or an obnoxious boss is not defamation. The statement must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”
Certain false statements are considered defamatory automatically, namely allegations of crimes, loathsome disease, promiscuity, corruption, and professional incompetence.
You never know what some people consider harmful. Donald Trump sued a publisher for underestimating his wealth. In the Greene case, the plaintiff was an executive of what turned out to be a criminal enterprise. I don’t see how his professional reputation could get much worse.
Made With Actual Malice or Negligence
If the target is a public official or a public figure, then the target must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is a private individual, courts generally require some fault or negligence by the defendant.
Who qualifies as a public figure is a murky area, but I suspect now that anyone can choose to put themselves in the social media spotlight, the definition of a public figure will expand.
In this post, I am discussing United States law. The laws of other countries are more favorable to targets, and you could get sued in France for a blog written in California. However, the Speech Act of 2010 helps to protect U.S. writers by prohibiting U.S. courts from recognizing or enforcing foreign judgments for defamation that are inconsistent with the First Amendment.
What’s a writer to do?
Considering the hundreds of thousands of books published each year, relatively few defamation suits are actually filed. Most targets don’t sue because they do not want to call attention to a matter best forgotten. And defamation is difficult to prove.
My theory about defamation suits (in fact, any lawsuit) is your chances of getting sued are a factor of money times emotion.
- If the target, publisher, or author has deep pockets, or the matter involves a lot of money, then the risk of a lawsuit increases.
- If the target is deeply and personally offended, then the risk increases even if no money is involved.
- The combination of big money and inflammatory material is particularly perilous.
My advice: if you are going after Big Oil, Big Med, Big Food, Big Religion, City Hall, Wall Street, or Mr. and Ms. Big, don’t go it alone. The Bigs may not care if they have a losing case. They often file SLAPP lawsuits to intimidate critics and overwhelm them with legal bills. Get a lawyer on your team early in the process or align yourself with a public interest group such as Electronic Frontier Foundation before you publish. Also look into media perils insurance.
For everyone else, here’s some general advice.
- Resist the temptation to use the bad toupee! If you base a fictional character on a living person, change physical details and life histories so the person is not recognizable. Don’t take the shortcut of using a highly identifiable flaw or quirk. The more villainous the character, the more changes you should make.
- Don’t rush to release a getting-even book. Do you secretly want your ex-spouse, boss, parent, or mother-in-law to recognize themselves in your work? Will changing one letter in a name protect you? Probably not. If you are working on a getting-even book, write the manuscript with passion, then put it aside for months, even years. With time and perspective, you will be better able to mask your characters and make the story more universal (and better).
- If you want to skewer someone, use parody. But don’t go halfway. Your humor should be so obvious that no one can reasonably read it as a statement of fact.
- Add the standard book disclaimer to fiction pieces. “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”
- If you are fictionalizing true events by adding scenes and dialogue, take a look at my last post about the right of publicity. Make sure you add a disclaimer such as “This work is based upon real events. Certain events, dialogue, and characters were created for the purposes of fictionalization.”
- Don’t use labels such as crook, cheat, pervert, or corrupt. Stick to verifiable facts and your personal, emotional responses. Remember the writing adage, show, don’t tell.
- Be cautious about saying something like “don’t do business with XYZ company.” Tell the story of your experience with the company. Your readers will get the message.
- Retain records to support your statements. Hyperlink to your sources.
- When speculating, be clear you are taking a guess. State your opinions as opinions and gut feelings, not as facts.
- Rely on publicly disclosed information, such as court documents and news reports. Court filings are a rich source of juicy information.
For all writers:
- When in doubt whether a statement might be defamatory, consult a publishing or First Amendment attorney. You will sleep better.
- If accused of a defamatory statement, consider publishing a retraction.
- Always reach for the truth when writing—it’s the best defense.
Invasion of Privacy
Everyone has secrets. We may post life’s ups and downs all over social media, but tucked in the dark corners of our minds are some memories we keep to ourselves.
But what if you want to write a memoir or novel that releases these hidden demons?
Undoubtedly, your work will involve other people and their secrets. How do you balance honest exploration with protecting confidences? When is revealing too much inviting legal action for invasion of privacy?
Almost all writers use real people in their writings, so we to learn how to recognize and minimize legal risks. In my last two posts, I discussed defamation and misappropriation of the right of publicity. Now, let’s look at Invasion of Privacy.
What is the Right to Privacy?
Many call it the ‘right to be left alone.’ If you invade someone’s privacy, you could have legal liability even if everything you write is true.
The law recognizes four types of invasion of privacy:
- Physical intrusion upon a person’s seclusion, such as breaking into a home, recording someone with a hidden camera or microphone, or obtaining private information through hacking or other wrongful means;
- Misappropriation of the Right of Publicity, which I discussed in an earlier post;
- Portraying someone in a False Light, such as using a photo of a young man in an article about street gangs that wrongfully implies the young man is a gang member; and
- Disclosure of private facts. This is my focus today.
The long definition is:
- the unauthorized disclosure,
- of private facts
- about an identifiable, living person,
- that are highly offensive to a reasonable person of ordinary sensibilities, and
- are not of public interest.
Quite a mouthful, isn’t it?
A plaintiff (the person filing the lawsuit) needs to prove ALL FIVE elements in order to win a case. Four out of five won’t do. Let’s look at each element separately.
Obviously, the safest way to write about real people is to get their permission in writing. If your work will be traditionally published, ask your publisher if they have a preferred form. If not, find one on the internet. The broader the release, the better.
Resist giving the person the right to review and approve your work. Too often, when people see their personal information in print, they change their minds, leaving with the writer with an unusable manuscript. Not good.
Of course, consent is not always obtainable or even advisable. Does this mean you can’t write about people? No. You can certainly write about people, but be careful about the other four criteria.
For information to be private, it must not be widely known. Any incident that occurs in public is not private, especially now that everyone carries a Smartphone. Information in court documents and news reports is also not private, although there have been cases where decades-old criminal history has been considered private.
What about family secrets? Every family has certain topics that are simply not discussed, but that does not necessarily mean the information is private. No one may speak about your cousin’s drinking problem or why Uncle Joe married Aunt Jane, but if your cousin has a long criminal record of DUIs and your grandmother has been bad-mouthing poor Jane to all her friends, then the information may no longer be private.
Identifiable, living person
The private disclosure must be about someone reasonably recognizable. It is not enough that the person recognizes himself; other people must be able to identify the person. For this reason, many lawyers recommend changing names and identifying characteristics of anyone portrayed in a negative light, even in memoirs. This is permissible as long as you say upfront that names, dates, and identifying information have been changed to protect privacy.
Like defamation, the right to privacy dies with the person. However, you should consider whether surviving family and friends might still be harmed by the release of the information.
Don’t forget to consider the privacy of smaller players in your work. For instance, if you are writing about a renowned playboy, consider whether you are intruding upon the privacy of his conquests.
The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment.
Sex videos have triggered a number of privacy suits. Recently, rapper 50-Cent lost a $5 million suit for releasing a sex video of another rapper’s girlfriend.
Disclosing favorable information does not give someone a legal claim, although it may make family get-togethers a little awkward.
This is a huge loophole that favors writers. Even if the information is highly offensive, courts often decide there is no legal liability because the information is of public interest.
Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest. The fact that a traditional publisher decides to print the material is enough to demonstrate public interest. If a blog post goes viral, that is evidence of public interest.
Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims. As you can imagine, judges and juries are not sympathetic when a perpetrator tries to claim an invasion of privacy.
Consider whether you are subject to other restrictions before you disclose confidences. As an attorney, I cannot use any confidential information about a client, even if I change the name and mask the identity. The same would be true for therapists, doctors, accountants, and other professionals.
If you are a trustee or partner or have a fiduciary relationship with a third party or a minor, you have a duty not to bring harm to the other party by disclosing personal information.
Have you signed a confidentiality agreement? Many public figures require their assistants, gardeners, nannies, drivers, maids, chefs, and other staff to sign tough confidentiality agreements. If you breach one of these agreements, expect a heavy-handed letter from some high-priced attorney.
If you were a party to a lawsuit settled out of court, take a look at your settlement agreement. Most likely, it contains nondisclosure and non-disparagement clauses. You could unwind the hard-fought settlement by blabbing.
Will you be disclosing trade secrets or other proprietary information? At your job, you may learn valuable trade secrets such as formulas, marketing plans, and manufacturing details. If you disclose that information, even if it is true, you could find yourself out of work and facing a lawsuit, if not criminal charges.
What’s a writer to do?
- Consent is best. Whenever you can, get consent before you record, interview, or write about someone. If you are using letters, diaries, photos, or other materials created by others, get permission to use the materials for both copyright and privacy reasons.
- Alter names, places, and identifying characteristics. Changing information to protect privacy is an acceptable practice for memoir writers and an absolute given for fiction writers.
- Consider how necessary the private information is to your story. Judges and juries can be quite moralistic and will punish someone who discloses confidential information gratuitously or maliciously.
- Watch your motives. Do you secretly want your ex-spouse, boss, parent, or mother-in-law to recognize themselves in your work? Will changing one letter in a name protect you? Probably not. As I said in my post about defamation, if you are writing a getting-even book, write the manuscript with passion, then put it aside for months, even years. With time and perspective, you will be better able to mask your characters and make the story more universal.
- Verify your information. Memories are tricky. Research public records and talk to others involved to develop and support your statements. Keep records of your research.
- Add a book disclaimer to your work. Here are some nice examples from famous memoirs.
- Apply the “Sister Test.” If someone were to disclose the same information about your sister, how would you react?
- When in doubt, consult a publishing or First Amendment attorney.
Helen Sedwick is a Contributing Writer for The Book Designer. She is also an author and a California attorney who uses her thirty years of legal experience to show writers how to stay out of court and at their desks. ForeWord Review gave her Self-Publisher’s Legal Handbook five stars, calling it “one of the most valuable resources a self-publisher can own…well-written and authoritative yet unhampered by legalese.” Her blog coaches writers on everything from protecting copyrights to hiring freelancers to spotting scams. For more information about Helen and her work, check out her website at https://helensedwick.com.
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.