1. Rumwriter
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    Rumwriter Active Member

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    Laws on using real people in works of fiction

    Discussion in 'General Writing' started by Rumwriter, Nov 1, 2013.

    Is it perfectly acceptable and legal to use celebrities in works of non-fiction? For instance, I am considering writing a short story in which David Foster Wallace and Mark Twain meet at a Starbucks to chat. Clearly fiction, but I am using real people -- at least in David Foster Wallace's case, he only recently died, so I don't know if his family could raise legal issue over something like this.
     
  2. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    it all depends on what you write about those real people... if you denigrate them in any way, of course they or their surviving family members could sue your pants off... as many have done successfully...

    you need to consult an attorney who specializes in literary law on this issue, not members of writing sites who are not professionals in that field...

    that said, real people are often featured in fiction... caleb carr and e. l. doctorow have done so in their works, to great success...
     
  3. Burlbird
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    Burlbird Contributing Member Contributor

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    (sarcasm alert)

    If you claim in your story that Walace and Twain actually met, and Walace's wife legaly proves that this is a notorious lie aimed to destroy the public image of her late husband, you are in for a loooot of trouble!!!!

    (sarcasm end)

    No, seriously - if you're gonna write literary fiction with that subject (and knowing what kind of books Walace wrote) you better find a lawyer who won't ask you to pay for a legal advice... IF Walace was alive and IF you'd claim he had a homosexual (and necrophilic) relationship with Twain (masturbating on his grave or something, idk) - it's another thing 100% But two dead writers having a coffee... HOW could THAT be offensive to ANYONE?!?

    ...but on the other hand, if you think you need a legal advice - ask a lawyer. If you want a new window frame - ask a carpenter. If you want a nice decoupage on your furniture - ask my wife. :D
     
  4. Browning
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    Browning New Member

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    In British common law, you can't libel a dead person and a libel action dies with the death of that person. Have no legal fears about writing about dead people, but prepare in some cases for flack. For example, to write an untruth about Princess Diana would cause massive antagonism, but to do the same about Myra Hindley (child murderer) would be ignored by all but pedants.

    I believe the same rule applies in the USA, but the constitution allows free speech. I've read lots of stuff about still living Americans which would cause an instant libel action in the UK, but over there nothing happens owing to the protection enshrined in the constitution.

    In British law your story about Foster Wallace and Twain would not be actionable, nor would one about Harold Pinter and Charles Dickens.
     
  5. digitig
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    digitig Contributing Member Contributor

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    The law isn't necessarily what you need to worry about. If somebody with money decides to sue the pants off you, even if the law is on your side, can you afford to prove that in court?
     
  6. Burlbird
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    Burlbird Contributing Member Contributor

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    @digitig c'mon, Wallace and Twain! :)
     
  7. digitig
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    digitig Contributing Member Contributor

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    Well, sure (at least as far as Twain goes; I'm not so cure about Wallace). But you're not basing that on what the law is, are you?
     
  8. Browning
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    Browning New Member

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    That could not happen in the UK . I doubt if it could in the States either. You can't libel the dead--that is the law, certainly here.
     
  9. digitig
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    digitig Contributing Member Contributor

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    Somebody could decide to do it in the UK. They shouldn't succeed, but might cost you a fair bit in failing.
     
  10. Burlbird
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    Burlbird Contributing Member Contributor

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    I fought the law and law won! :)

    Yeah, I guess you could libel Jesus himself - there is always a baptist out there to press charges. But c'mon, Wallace and Twain in Starbucks - what could possibly go wrong? :D

    There are tons of questions like this on the forum - when the author gives a context, and asks the question within the context, I think it's only fair to answer within the context.
     
  11. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    dig is right... at least in re the US, where people sue people for anything you can think of and lots you couldn't even imagine... and it doesn't matter whether you win or not, because even if you do, it will still cost you a bundle up front, to defend yourself... plus, taking time and effort away from your writing... and can hold up the release of your book, if a temporary injunction is ordered by the court, till a judgement is rendered...
     
  12. Burlbird
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    Burlbird Contributing Member Contributor

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    Isn't it more advisable to write the freakin' story, then contact Karen Green and just ask her if she would mind? She seems like a very communicative and open person, from few interviews I've seen, and has a perspective on her husbands death. And I do believe it's to honor someone by making him come alive in your prose... Except if he and Twain do have sex. As corpses. Or something like tgat. Then it's Sturbucjs who would press charges - "We don't let dead people have intercourses in our coffeeshops."

    Personally, when I wanted to include a certain BBC reporter in one story, where she meets my main character and have anice chat with him, I wrote it, than found her on Facebook, "Ms, I have a question for you..." and she was delighted. I've sent her a translation of the story she appears in, and we are fb buddies since then... It could work for anyone, methinks...
     
  13. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    from a legal standpoint, that's not good advice, bb...

    first of all, it could result in a waste of the writer's time/effort, if permission isn't granted and no 'allowed' substitute celebrity will fit the story...

    more importantly, if permission is withheld and even one person other than the writer [and ms green] has been shown the ms, that could be actionable and result in a costly lawsuit...
     
  14. Burlbird
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    Burlbird Contributing Member Contributor

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    Even one person? meaning: your mother? really? what kind of a fu*kup country do you live in anyways??? move to China...

    And I have to see that lawsuit based on two dead people having a coffee. Really. Was there something like that, ever? A libel without a defamation???
     
  15. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    ...please don't ignore my 'could's, just for the sake of argument, bb...

    of course it depends on what is written and how the deceased celeb's surviving family members will feel about it... and however 'nice' a person seems to be in interviews, they may still be so protective of their deceased loved one's image and legacy that they might find some of what's written to be objectionable enough to sue over...

    as i made abundantly clear in my posts, my bottom line advice is for writers to always err on the side of caution... as in the old 'better safe than sorry' adjuration mothers drill into us from toddlerhood...

    in re your questions, you can find law suits having been brought against writers for all sorts of blatantly 'frivolous' torts... and even if they're subsequently thrown out, the putative defendants are still forced to spend time, energy and money to get it tossed... and much more of same, if it's allowed and they have to mount a defense... in which case, it's out of pocket, since attorneys don't take on such cases pro bono, or on a contingency basis...
     
  16. live2write
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    live2write Contributing Member

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    With celebrities there is a law called "rights to publicity". It protects the celebrity's name or trademarks from being used in consumer products/merchandise or commercial artwork without their permission.
    Celebrities make a living on royalties.

    However, there are acceptions.

    1: if you mention in the novel that the character is listening to a Justin Timberlake album or admiring a poster of billy ray Cyrus, then it is acceptable because you are describing an object.

    2. If you are describing a character and mention that it resembles Clint Eastwood from such and such movie because of appearance or body language, you are using the celebrity as a description.

    3. Mention of historical figures are allowed if you are describing a moment that actually happened.

    As far as writing a story about two real characters in a fictional world...I would call a lawyer on that one. It is one thing to describe in a book how your father would tell you bedtime stories and he would use two historical figures because they were his favorite. Writing a book based upon the two. Call a lawyer about that one who is familiar with publishing and rights to publicity.

    Just because they are dead does not mean their relatives or if a company owns the rights to the name
     
  17. Burlbird
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    Burlbird Contributing Member Contributor

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    I still believe that, in this particular case, Rimwriter should just write to Ms Green. What harm can come from a few friendly emails?
    "Beautiful Crap" : that's her site... You might just be pleasantly surprised...
     

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