Reality and Fiction: Part 2 - Adding real people to fiction - the legal background

Best-selling author John Gilstrap, whose latest Jonathan Grave thriller High Treason is heading up the best-seller lists, made a comment to my last post.  He raised the issue of intermixing real people in fiction.

So can you have your main character have a chance encounter with Martha Stewart?  Or Matthew McConaughey?  Or Elvis?

The short answer is yes -- but with qualifications.

Let's start with a little legal background.

The legal issues involving real-life people revolve around the right of privacy, the right of publicity, and libel.  The rights of privacy, although recognized in some forms since the early 1900s, are still not uniformly recognized among the 50 states.  Some aspects, such as commercial use of images without consent, are adopted by virtually all states.  Public disclosure of truthful private facts, is another issue.  Members of an evenly divided Indiana Supreme Court opined that the state constitutional provision providing that truth is an absolute defense in defamation actions, precludes any liability for truthful statements -- even the disclosure by a nurse to a plaintiff's co-worker that the plaintiff had AIDS.

The right of publicity is a new concept.  It was not recognized at common law, under which all personal rights to privacy, publicity and defamation died with the person. The legal adage is that you cannot defame a dead person.

But prompted by the death of Elvis Presley, the Tennessee legislature enacted a statute giving the right of publicity for a deceased person to his estate.  In the following years, some, but not all, states have passed statutes regarding the right of publicity.

Generalizing, those statutes give the heirs all rights to use of the image, likeness and voice of the deceased person. So when you see a commercial using the image of Elvis Presley or the voice of Bing Crosby, someone is paying the estate (or more likely, a corporation set up by the estate).

But those statutes have an exception for books.  There would be significant First Amendment issues if the legislature tried to prohibit writing about people without their consent.  Hence the exclusion.

Finally, there is the issue of defamation.  In short, defamation is an untruthful statement about a person that lowers that person's reputation in their profession or in the community.  There are various standards that apply to defamation depending on whether the person is a public official, public figure, limited person public figure, or private person.  But in general,  the old common law still stands -- you can't defame a dead person.

In the next post, I'll discuss the practical application of these laws to using real life people in fiction.