Reality and Fiction: Part 3 - Writing Real People in Fiction

George & Abe hunting vampires?

After touching broadly on the legal principles, it's time to get down to practicalities:

Can you use real people in your fiction?

As I alluded to in my earlier post, the answer is a qualified yes.

Example 1:  You have your character have a chance run in with Martha Stewart in a posh Washington, D.C. restaurant.  They exchange greetings and discuss mutual acquaintances, then go on their way.

No problem here.  Passing reference to Martha doesn't raise any issue about privacy, publicity or defamation.

Example 2:  Your character is in a posh Washington, DC restaurant when he sees Martha Stewart, in a drunken stupor, berate and throw a drink in the face of her waiter, stand on her table and pull up her skirt to reveal she is going commando and has a tattoo of Matt Lauer on her ass, then say something that reveals she is, in fact, the Georgetown Slasher, a vicious serial killer who leaves victims in the finest hotels in Washington surrounded by handmade candles and tasteful flower arrangements.

Now we have a problem.  It's not a right of privacy or publicity issue, but straight out defamation.  Even though it is labeled fiction, it still exposes Ms. Stewart to a possible lowering of her reputation.  And it would be hard to claim that the statement was not made with knowledge of falsity when in fact you are writing FICTION, which by definition is false.

Example 3:  Your earlier books have been made into successful movies - one by Clint Eastwood, and the other staring Matthew McConaughey - so you write them in to your later novels.

No problem here.  That's exactly what was done by best-selling author Michael Connelly.  His novel Blood Work was made into a move directed by and staring Clint Eastwood.  So when Connelly wrote the sequel A Darkness More Than Night, he included references to Eastwood and to the fact that a movie had been made about protagonist Terry McCaleb's heart transplant.

Matthew McConaughey played the role of Connelly's character Mickey Haller in the movie version of The Lincoln Lawyer.  In Connelly's sequels The Brass Verdict, The Reversal and The Fifth Witness, there are passing reference to his characters having encounters with McConaughey

Example 4:  Your character has various dealings with early industrial giants Henry Ford, Louis Chevrolet, and Thomas Edison.

This is the context of D.E. Johnson's series of books (Detroit Electric Scheme, Motor City Shakedown, Detroit Shuffle) set in Detroit in the early years of the auto industry.  No problem here.  They are dead.  No defamation.  No invasion of privacy.  And because their deaths long preceded any rights of publicity laws, there is no concern there either.  But since rights of publicity statutes exclude books, that issue doesn't exist in any event.

Heck, you could even write a book about, say, Abraham Lincoln killing vampires.  But then again, who would ever want to read something as far-fetched as that.


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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.

Reality and Fiction in Writing -- Part 1: Changing Names

Back from a bit of a hiatus --

At the Midwest Writers Workshop, I was part of the Buttonhole the Experts session.  The question that came up more than any other -- both in the short "buttonhole" sessions and in hallway discussions -- was about the interplay of real life and writing.

The question came up primarily in three setting, all of which have arisen in my law practice.  First, and seemingly more common, is the "fictionalizing" of real events, usually by slight changing of names or places.  Second, is the use of real life people in works of fiction.  Third is the issue of writing about people without their consent.

The next installments of Law for Writers will address these issues.

So how about fictionalizing real events?

This seems to most commonly arise in the following scenario:  Joan Smith is writing what effectively is a memoir.  But because of family concerns, or because of fear that revelations will subject her to a lawsuit,  she changes the names of the characters, and maybe even the location.

So by changing the names, has Joan protected herself from libel?

The quick answer is "NO."

Just changing a name of a real life person to a made-up name does not protect the author from exposure to liability for defamation or even invasion of privacy.  The general rule is that if a person can be identified, simply changing a name or using the label "fiction" will not provide the author with an impenetrable wall against liability.

Now does that mean that one cannot use real life events as inspiration for fiction, or even as the basis for a work of fiction?  Of course not.  Much, if not most, fiction, is inspired by or drawn from real life.  Often that is what gives fiction its believability.  One of the classic American novels, Robert Penn Warren's All the King's Men, clearly was inspired by Louisiana Governor Huey Long.  But it remained a work of pure fiction.  It's characters were fictional, not just some account of real life persons and real life events with a simple name change.

There maybe reasons for "fictionalizing" a memoir or a true account by changing names.  Maybe it gives the author a way of dealing with disgruntled family members.  If so, that is the choice of the author.

But do not count on protecting yourself from liability by the simple expedient of a name change.  It's a thin veil and the law has no difficulty seeing through it.

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