Legal Question in character names

[Stacey Sweeney]

Can you name a character in your book any name you want? For example, say that I was mugged in real life by someone named Fred Miller. Then say I wrote a novel about a character being mugged by someone named Fred Miller. If the book gets published and the real Fred Miller reads it, can he sue me? (We're pretending that there was a police report, but he was never prosecuted because I decided to just drop it.) Oh, and the mugged thing is just an example. Plug in anything you want, robbery, rape, murder, etc (except that if I were dead I wouldn't be able to write a book naming my murderer--too bad, it'd probably sell good).

Thanks,
Stacey

[James D. Macdonald]

Anyone can sue anyone else for almost anything.

The question is whether they'll win.

One question a jury will ask is how likely a person who knows the real individual, reading that book, will be to identify the character with the real person.

But that isn't the questioh you should be asking. The question you should be asking is "Does naming this character Fred Miller add something to the story for the ordinary reader that naming him Joe Smythe doesn't?"

But I'm not a lawyer. If you're seriously worried, talk to a real lawyer. He'll advise you to change the name, but you'll have paid $100/hour to hear it.

[AdamH]

James does make a good point. Why use the real name if you think the real person is going to sue you? Unless it's important and necessary to the story. If not, change it.

To add to that however, the majority of people out there wont sue you for using their name unless the character in the book could be construed as slanderous to them. In the example you used, Frank Miller could sue you for dragging his name through the dirt whether it's the truth or not. But, to tie a nice little bow and bring it back to what James said, will Frank Miller win said case? Not likely.

But like James, I'm no lawyer. So take that for what you will.

[scarletpeaches]

You could always cheat and give your character the same initials.

[Saanen]

You could always cheat and give your character the same initials.

Or you could change the name to something very similar--something like Frank Mueller instead of your example of Fred Miller. But even so, you probably should go carefully. I seem to recall that Betty MacDonald was sued by her former neighbors, whose last name was Potter (or something like that), after she wrote about them and changed their name to Kettle. I don't know if the lawsuit was successful, though; probably not.

Hmm. Can anyone think of a name with the same whiny, loser sound as the name Rollo? Um, no specific reason. (Enormous apologies ahead of time to anyone with the misfortune to be named Rollo.)

[LightShadow]

I don't see why you'd even want to open yourself up to the possibilities of ticking a real person off over a fictional character's name. I'd rather find a name that better fits my character (as James first pointed out) than one that better fits some real life person. Make up a name, if you have to. Get cute, funny, or ironic. Brad Muser in my book is Sara's muse. Get it? Muser...muse...okay, okay, fine. Or Corinth. She's a very religious character. I got Corinth from - - - the books of Corinthians in the Bible. A guy named Ron served as inspiration for another character in a short story I once wrote, so I named him Rick. Etc...etc...etc...

[MarkPettus]

You could always follow Ann Lamott's suggestion, if you are afraid a real person is going to recognize himself in your story and sue, just write the character with a very small penis.

No one is ever going to claim to be that character.

[Stacey Sweeney]

I love the part about making the character have a small penis. Made me laugh.

I could use the real first name and a fictional last name. It's stupid (in a way) to risk it at all, but part of me wants to call the slime a slime. And in all honesty, this guy is most of my inspiration for writing the book at all, even though he's a loser and jerk.

I doubt any lawyer would even take the case for this guy if I write a book calling him a criminal just because the character happens to have the same first name as him. There aren't very many original first names out there and we (as authors) can't possibly be expected to name every character in our books a name that no one we know in real life has.
Stacey

[MarkPettus]

Stacey,

Although no one has mentioned it, you may have another problem.

You may be on solid legal ground, but if you can't find a publisher because they are all afraid of becoming co-defendants, your slimeball will never get to read about himself in your book because the only copy will be a doublespaced manuscript you keep in the dining room.

[Stacey Sweeney]

I didn't think about that. But, I'm probably making much more out of this than I should. I don't think he knows my name. He definatly doesn't know my current legal name. I just found out his name recently when I pulled the police file (for my own records) and no one knows about the "incident" except for two other people who I haven't seen or spoken to in 8 years. I'm not sure either of them know my current legal name. I'm not sure that in a million years this guy would notice his name being used in a book. The only reason I was even worried is because IF I get the book published (it's still on the first draft and I'm currently finishing editing on the first book I wrote) then someone would have to read the book and put two and two together. I'm not sure that would ever happen.

[Stacey Sweeney]

My last sentence didn't make sense. Sorry. I'm not really worried about someone putting two and two together. I just want to be sure that if they did, I'd be alright legally.

[reph]

Stacey, you're obviously out for revenge against this Fred Mutler or whoever he is. May I suggest a method that won't jeopardize your novel, such as pitching paintballs at his house?

[Susan Gable]

Literary revenge, while sweet, is like (fill in this blank with the bad habit of your choice <G>) - you should never do it in public. <VBG>

If you absolutely must do it in public (and believe me, I understand the urge) then just keep the first name the same. Give the character a different last name. *You* will know, and that's all that matters. And it will keep you clear of legal hurdles.

The mug on desk says: I kill off my enemies in my book. You're on page 12!

:) So yeah, I understand the urge.

Susan G.

[Mike Coombes]

Don't open yourself up for something you don't want, particularly when you are probably the only one who'll know.

The name isn't the end of it. If you recreate the circumstances, give a similar name, and the person in question decides that there is enough there for someone to make a connection, he has a case. Whether he will win or not is moot - you still face standing up in court. And if he wins, you have slandered him. You have called him a mugger, the courts say he wasn't.

Play safe. Make the mugging a credit card fraud, perpetrated by a 14 year old schoolgirl with a chinese name.

The chances of him (a) reading (or being able to read!), (b) recognising and (c) acting are tiny, so the risk is comparatively small, but how about when the book hits the best seller list and his more literate friends read it? "Hey Fred, there's a guy in this book with your name..."; then, when you sell the film rights and the multiple oscar dream comes true...

[Robere210]

Hi everybody! I hope this is the right place to post a couple of questions. If not, please feel free to move it to the proper forum.

I'm writing a novel about a real place. It's a small town in New Mexico that does exist, and there are several geographical features of the town that make it absolutely unique and that are central to the story. For these reasons I don't want to fictionalize the town and give it another name.

I've gotten pretty creative about making up names for the characters... I've had some fun there. And so far I've googled all my made-up names, and none of them get any google hits. So am I safe from being sued there?

The second question is this: One of the minor characters in the book is a movie star. And I've given him a name that is close to a real movie star's name--who is still alive. For instance, I'll say my character's name in the book is Clark Gambrel (which would be close to Clark Gable) or for another example, lets say Reese Wiltfork (Reese Witherspoon). My actual character's name is neither of those (and a much funnier name btw) but you see what I'm getting at.

I would like to make my character's first name the same as the real movie star's first name, and then use my made-up, hilarious last name. So whaddya think? Would I get sued? My characterization of him is not negative in the book. I don't drag the character through the mud, but I need a famous movie star in there as a minor character, and the name I've thought of is pretty funny... to me and the few people I've tried it on anyway. Thanks!

[James D. Macdonald]

To get a real legal opinion you should ask a real lawyer.

In my non-lawyer opinion:

1) Anyone can sue anyone for anything. See, for example, the guy who just sued Stephen King for plagiarism.

2) As long as you aren't using real names you should be okay, unless you run into a nutjob. And in the case of nutjobs, nothing you do or don't do will help.

[Lady Ice]

If we're being realistic, your novel- however good it may be- is unlikely to be so popular that people would be suing over it. So unless you're doing something that is blatantly going to have legal problems, I'd just get the story written and make changes later.

[dpaterso]

The town exists, so why shouldn't you refer to it in your novel? Unless you mean in the worst possible way, like "Every inhabitant of this dirty little town is a low-life drug-crazed child-molester, and that's a fact." Which could raise eyebrows and blood pressure.

I didn't really associate your character names with the actor and actress.

-Derek

[Robere210]

Thanks for the replies. I appreciate everybody's input.

I've been writing for strictly my own pleasure all my life. I love to rewrite the things I've written so that the story comes across in a fun, concise, and sometimes humorous way.

When I became aware of e-publishing I decided to go for it and get my novel out there in the world.

I've made up some unique names for my minor characters, but for several of my main characters I would like to use more realistic names. So let me get this straight... if I use a real town, and several real names, I am probably safe as long as no one with that exact first and last name lives in the real town. Correct?

I'm aware anyone can sue anyone else for anything. I just don't want to put myself in the position of giving someone a good reason to sue... so I ask. Thanks!

[maestrowork]

You have NOTHING to worry about.

Fiction writers have to doing that stuff for ages. It's all fiction. John Smith from Los Angeles is not going to sue you, unless you personally know John Smith and you're writing the story to defame him. Then he will have to PROVE it in court.

Just write the story. I wish writers are not so paranoid.

[IDGS]

You have NOTHING to worry about.
Just write the story. I wish writers are not so paranoid.


I agree.

I just wish there were less reasons to make them paranoid in the first place, too.

[Phaeal]

Write the story. If you need to fictionalize the setting or change character names before publication, this is an easy enough fix.

And, as Anne Lamott suggests:

If you have any male character who might inspire someone to claim it's based on him? Give the fictional dude a really, really small penis. Not too many men are going to say that character is him. ;)

[maestrowork]

Why are you writing about me? I'm gonna sue you.

[Robere210]

I like this place!

[dangerousbill]

The town exists, so why shouldn't you refer to it in your novel? Unless you mean in the worst possible way, like "Every inhabitant of this dirty little town is a low-life drug-crazed child-molester, and that's a fact." Which could raise eyebrows and blood pressure.


You can be pretty liberal with town names. When they were choosing a location for the movie 'Hamlet 2', they wanted first to make it in Tucson. When Tucson refused, they went to Albuquerque instead, but the new script contained a running joke about "Tucson, the Town Where Dreams Go To Die".

[Robere210]

That's very funny dangerousbill. Thanks for posting that story.

I worked in film production for some years and I know ALL TOO WELL how persnickity (and greedy) some city bureaucracies can be.

Phael, I've already written about 2/3rds of the novel. I'm writing on an imac, so making name changes is very easy. I've changed some of the main character's names 3-4 times, but I still prefer their "real" names from back when I first put their story to paper... I wasn't so paranoid then!

[Nick Blaze]

I've never encountered the problem, but I assume people writing historical (or not quite so historical) fiction encounter on a daily basis.

[happywritermom]

My first novel, which is agented and under submission, is set in a real village with careful attention to keeping with the actual geography. The characters are fictional, but there are some mentions of real people. I'm not worried and I don't believe that you should be either.

My WIP is set in a fictional city that mirrors a real city because the "bad guys" are public figures in positions of trust and I don't want to imply that anything like that is really happening or has happened in that particular city. I'm not afraid of lawsuits, but I don't want anyone to get hurt whether emotionally or financially. That's my personal value system kicking in there.

If you are going to set your novel is a real place, just do me one favor: get it right.

I just tossed a book that is set in Syracuse, NY, for several reasons (horrible writing among them), but partly because the author knew nothing of Syracuse. One of her MCs is a retired NYC cop who comes to Syracuse seeking a less stressful police job. She implies that plenty of NYC cops join the SPD for the same reason. I covered crime in that area for six years. Never once met a former NYC cop on the SPD. She also dreamed up a fictional college that is clearly supposed to be Syracuse University. SU is too big an institution to fool around with like that. Either use it or don't. She should have made her fictional college smaller and set it outside the city limits. It sounds silly in the novel.
I read another novel that was set in the Adirondacks and described the poorer people as being "from the other side of the river," comparing it the other side of the tracks. That kind of geographical segregation doesn't exist in the Adirondacks mostly because they was never much industry there.
Yet a third book set on one of the Finger Lakes describes a MC standing on one shore and seeing someone quite clearly on another shore. The two points she describes are, in reality, 13 miles apart.

Not that I'm picky, but ...

[Robere210]

.......I'm not afraid of lawsuits.....

You are a bravemom as well as a happywritermom. Just defending against a lawsuit can easily cost $10,000.

[maestrowork]

You are a bravemom as well as a happywritermom. Just defending against a lawsuit can easily cost $10,000.

If people try to sue you, chances are you're already rich and famous. No one sues an unknown author...

[Robere210]

I've had to defend myself in a lawsuit (wasn't writing related). It was a horrible experience that ate up 2 years and 8 months of my time and money. AND I WON!! But the cost of winning was astounding.

I've never sued anyone and probably never will. But the woman who sued me had sued many people--she used lawsuits to augment her income, and she was good at it. She wanted $40,000 from me and I ended up losing and spending almost that amount just defending myself. The time lost from doing something productive was sickening. This was in 2006 to 2009, and I'm sure she's gone on to other victims by now.

[happywritermom]

I meant that I am not concerned that anything in there is conversial enough to sue over. Of course, I worry about lawsuits in general when I write. That's part of what keeps me responsible. I even changed a name in my WIP when I realized I have a niece of the same name. She's a great character who doesn't nothing extremely negative, but you never know. I didn't want to start some family feud over something silly like a name.

It's sounds like the OP has made evey effort to ensure that, aside from the celebrity name, his names differ from any real names in that community.

[Robere210]

That's why I asked the question in the first place happywritermom... to protect myself.

Maestrowork, if all a person possesses is a beat-up old car, a computer, and they live in an apartment then they don't have anything to lose do they? But I've worked all my life and I've been fortunate... I have no intention of putting my assets at risk simply because I didn't understand the legalities of naming characters.

[Terie]

Maestrowork, if all a person possesses is a beat-up old car, a computer, and they live in an apartment then they don't have anything to lose do they? But I've worked all my life and I've been fortunate... I have no intention of putting my assets at risk simply because I didn't understand the legalities of naming characters.

It's almost impossible to name a character a unique name. Seriously. Do you think there are no real men or boys named 'Harry Potter' in the world? :D

Using a name that someone somewhere happens to have is not actionable.

Intentionally using the name of someone you dislike as a bad guy could get you into trouble, but just randomly putting a first and last name together won't. Just do your best to make sure that no one with the names of your bad guys really lives in the real town. Or use such a generic name that there are at least several with that name there.

[maestrowork]

That's why I asked the question in the first place happywritermom... to protect myself.

Maestrowork, if all a person possesses is a beat-up old car, a computer, and they live in an apartment then they don't have anything to lose do they? But I've worked all my life and I've been fortunate... I have no intention of putting my assets at risk simply because I didn't understand the legalities of naming characters.

Repeat after me: THERE IS NO REASON TO FEAR about naming a character who may happen to bear the same name as a real person. Chances are, it will. Then you may as well just stop writing. Spend your energy worry about something else.

[job]

I've googled all my made-up names, and none of them get any google hits. So am I safe from being sued there?

Sounds as if you've done your homework. I wouldn't worry.


I would like to make my character's first name the same as the real movie star's first name, and then use my made-up, hilarious last name. So whaddya think? Would I get sued?

It is almost impossible for 'famous' people to sue for defamation or invasion of privacy over use of their names.

If the name is trademarked, the trademark owner can sue you if you damage the value of their trademark. Doesn't sound like your use would damage a trademark.

[AMCrenshaw]

Plus, do the names work to the story's advantage?

[Robere210]

Repeat after me: THERE IS NO REASON TO FEAR about naming a character who may happen to bear the same name as a real person.........

Thank you maestrowork! THAT'S the answer I've been wanting to hear, but wasn't sure if that was how the laws were being interpreted or not.

All of my characters except the movie guy, and my good guy MC and my bad guy MC have names that bear no relation to anyone I've ever met.

AMCrenshaw, the names do work in the story, and they also work to stimulate me to write them. Fer instance, growing up I was mercilessly tormented by two real creeps. One guy's first name was Jerry, while the second guy's last name was Bohanon. (They didn't know each other) So in my story my bad guy's name is... Jerry Bohanon. Now I will probably change his name after I finish... just to be safe... but right now using the name Jerry Bohanon really stimulates me to write him exactly as bad as both of them could be in real life. Saying that name still makes my guts do flip flops... and that helps me capture their essential badness. Does that make sense?

[CAgirlforever]

Quit worrying and keep writing. It sounds like your novel is going to be very entertaining, and I can't wait to hear what name you are really using that sounds like a famous celebrity! Great idea!

Side note to Terie: I'm glad you mentioned Harry Potter. Every time I watch "It's a Wonderful Life", I always wonder if Mr. Henry Potter was called Harry as a child.

http://willowwriter.blogspot.com

[Hillgate]

You've always got the 'fair usage' get-out with existing things that are cultural references mentioned in passing eg 'Jim crunched the Coke can' is not going to get you a lawsuit from Coca Cola nor is writing specifics about specific places, especially if they're meant to be amusing: I wonder if anyone here remembers 'Porterhouse Blue' which was pretty much based on Peterhouse College, Cambridge. They didn't sue, if my memory serves me well, and nor did the application rate diminish. In fact, it may have increased, and I'm sure everyone asked for a bedder...