Can I use...

skttrbrn7 · Jun 23, 2008

Hey everyone, i have a quick question.

Can i use someone like Albert Einstein as a character in a story of mine? He wouldn't be a major character in the story but definately an important characte none the less.

What's the procedure regarding this?

Can i just use him?

or not?

Cheers...

dpaterso · Jun 23, 2008

Yes, but avoid defamation of character.

-Derek

Reilly616 · Jun 23, 2008

Of courese. Let's use an extreme to ilustrate the point.

You are a German in 1942. You write a book with Adolph Hitler as a character.

If you praise him and make him king of the world in your book there will be no problem.
If you write about him dressing up as a woman, kicking cats and --god forbid-- killing people he shouldn't be killing, then there will be a problem.

Obviously that is the extreme case, but if you badmouth Einstein, many people will be pissed (myself included) so that is the general rule.

As dpaterso said above, "Yes [you can], but avoid defamation of character".

Mac H. · Jun 23, 2008

Is that really true?

Remember 'Can I do this?' is a bigger question than 'Can I legally do this?'

eg: http://www.ipcounselors.com/20040609.htm#a1

Electronic Arts ("EA"), a popular gaming company filed suit against Hebrew University of Jerusalem ("HUJ"), seeking declaratory judgment that its use of Albert Einstein's image in a complex video game did not infringe upon HUJ's legal ownership of Einstein's publicity rights. After much legal showmanship, HUJ filed a covenant that it would not sue EA for using Einstein's image in its game. Arguing that its covenant not to sue mooted EA's action for declaratory judgment, defendant HUJ moved for dismissal which the District Court granted.

Whether it is technically legal or not, it seems that if you don't license the publicity rights then others can make life hard for you ... kinda like "Happy Birthday" which should have expired years ago but it isn't worth anyone's while to spend $250k on court battles to avoid a $25k license fee.

From the guy who ran a site that sold famous quotes engraved onto mugs:

Soon after, “we got the phone call threatening us with fire and brimstone, ... They were asking us to hand over all our records and a percentage of anything I’d made on the site. We hadn’t sold a single Einstein quote at that point.” Though a lawyer friend assured Borenstein that he was in the clear, he did not relish a costly legal battle. He removed the quotes and soon after sold the site. “It’s directly against the principles that Einstein seemed to stand for,” Borenstein says.

It is possible that the hassle of legal fees simply means that it is one more reason for a publisher to say no.

Mac

Prozyan · Jun 23, 2008

dpaterso said:
Yes, but avoid defamation of character.

-Derek

Electronic Arts ("EA"), a popular gaming company filed suit against Hebrew University of Jerusalem ("HUJ"), seeking declaratory judgment that its use of Albert Einstein's image in a complex video game did not infringe upon HUJ's legal ownership of Einstein's publicity rights.

In the game in question, Einstein traveled back in time and assassinated Hitler, as well as developing many weapons of mass destruction. It is very arguable this constituted defamation of character.

As for the other case, quotes can be considered intellectual property, and depending how the quote was obtained, be considered copyrighted.

Mac H. · Jun 23, 2008

But HUJ don't limit themselves to areas like defamation and copyright infringement.

See http://www.physics.princeton.edu/~trothman/Who Owns Einstein.htm for example.

As for Einstein’s image, Hebrew University of Jerusalem has authorize Beverly Hills’ Roger Richman Agency, “the preeminent licensing agency, specializing in protecting and promoting the personas of world-renowned entertainment and historical personalities,” to license Einstein’s image for promotional purposes and to “prevent unauthorized use of the likeness and image of Albert Einstein.” That is correct, a Hollywood agency, specializing in protecting the rights of movie stars claims to have exclusive rights to Einstein (and Sigmund Freud).

It isn't about defamation or copyright.

It is about money.

Mac

Prozyan · Jun 23, 2008

Now that is very interesting. Thanks for the info.

Quossum · Jun 23, 2008

This mystery series by Robin Paige uses characters from real life in every book, from Beatrix Potter to all the folks surrounding Jack the Ripper (which of course the sleuths "solved" in one of the books).

I didn't always like the way various people were portrayed, but... *shrugs*

--Q

Sunshine13 · Jun 23, 2008

Huh. Very interesting to know this stuff.

dianeP · Jun 23, 2008

I've often wondered about this as well.
I don't know is music is any different, but in Shania Twain's "That Don't Impress me Much," she says "Okay, so you're Brad Pitt..." She doesn't say "you look like Brad" though I think that's what she is implying, but "you are Brad." I always wondered if she spoke to him about it before.
And then there is Lynyrd Skynyrd's Sweet Home Alabama in which they mention Neil Young.
These are two examples of someone still alive being mentioned in someone else's work. Do we run the risk of a lawsuit everytime we mention someone's name?
Shania sings: I never knew a guy who carried a mirror in his pocket, or a comb up his sleeve just in case...
Could that be considered defamation?

Jersey Chick · Jun 23, 2008

I think it's only defamation if it actually harms the person in question. In the Lynryd Skynryd scenario, that was in response to Neil Young's song "Southern Man" - which was a slam at southerners.

gypsyscarlett · Jun 23, 2008

This is something I've wondered about too for quite awhile. It seems that a lot of authors are using deceased people as characters in their works. Tim Powers does a lot. In The Stress of Her Regard- Byron and Shelley are main characters. There's a mystery series with Jane Austen as the sleuth. Tracy Chevalair writes fictionalized novels about painters. And thats just a few examples.

Besides the legal aspect of it- how do you think they might feel? How would you feel? As for me- well, part of me would be thrilled to be so remembered that someone chose to use me as a character a hundred years after my death. But on the other hand- I can't stand when people put words into my mouth. So, it might totally annoy me to have them show me saying and doing things that I never did- and more importantly, never would have.

Thoughts?

James81 · Jun 23, 2008

How about instead of Einstein, you create an Einstein-like character? That way you can do whatever the hell you WANT with the character and not worry about it.

Unless you merely plan to use his theories in your book, the book involves being in the era of Einstein or something where you just CAN'T replace him.

Georganna Hancock · Jun 23, 2008

I really feel sorry for the initial poster. The answer to the original question is simply "Yes".

And anybody can sue anybody over anything. In speculative fiction, alternative universes are created, e.g., what if the Nazi's won WWII. I'm sure this would offend some Jewish people, and perhaps chagrin some Germans. What if MacArthur and Eisenhower were portrayed to be inept?

Someone certainly COULD sue the author. Courts throw out nut cases all the time.

Just write your book and let your agent and publisher handle the legal details.

skttrbrn7 · Jun 24, 2008

Thanks everyone for your rather interesting replies. They cleared up my initial question (and more

)

Initially i had intended to use Einstein in a story that's pretty much historically correct. Some initial thoughts and beliefs may stray, but I'm not planning on going as far as to make Einstein travel back in time and assassinate Hitler, or develop weapons of mass destruction.

Thanks again

Actually, just a quick thought. How do shows like South Park and Family Guy get away with some of their slander?

AnneMarble · Jun 24, 2008

skttrbrn7 said:
Thanks everyone for your rather interesting replies. They cleared up my initial question (and more )

And we probably created new ones. We're good at that.

skttrbrn7 said:
Actually, just a quick thought. How do shows like South Park and Family Guy get away with some of their slander?

I think those shows are protected because they're parodying the characters. But even with parodies, writers can get in legal trouble. I think it depends a lot on what judge you get.

Reilly616 · Jun 24, 2008

skttrbrn7 said:
Some initial thoughts and beliefs may stray,

What do you mean by that?

HorsebackWriter · Jun 26, 2008

Oh, the good old days of fighting songs. : )

Em

Jersey Chick said:
I think it's only defamation if it actually harms the person in question. In the Lynryd Skynryd scenario, that was in response to Neil Young's song "Southern Man" - which was a slam at southerners.

Barb D · Jul 4, 2008

How about a living person? I want one of my characters to be a distant cousin of (and have the same last name as) a living playwright. Is this kosher? He would only be mentioned in a positive light.

Can I use...

skttrbrn7

dpaterso

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Reilly616

Mac H.

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Prozyan

Are you one, Herbert?

Mac H.

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Prozyan

Are you one, Herbert?

Quossum

Sunshine13

Mom by day, writer by night!

dianeP

Jersey Chick

Up all night to get Loki

gypsyscarlett

Ma fin est mon commencement

James81

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Georganna Hancock

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skttrbrn7

AnneMarble

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Reilly616

HorsebackWriter

Dream at a gallop!

Barb D