Hi, Pam! Sorry I didn't get to this thread earlier, but I actually asked my entertainment attorney this very question. We set our novels in the real world, so there's always the question about whether we're going to (accidentally or on purpose) include people who are alive or recently dead. Here was his response (and remember that this is based on a particular scenario, but is geared toward future generalities.)
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As you probably expected, the question you raise touches on a number of issues, but I will try to give you a road map. From my reading of your e-mail, there are four areas in which you might incur liability for writing content in which you incorporate a character who is a famous person who is either alive or recently deceased, and depict them either in events that actually occurred or in fictitious events. The four areas would be:
A. Invasion of privacy;
B. Defamation/slander;
C. Copyright infringement; and
D. Unauthorized use of name and likeness.
Let’s first take the case in which you
accurately recount events that happened in the life of the person in question. In this case, first of all, you would not be invading privacy because, assuming the person is a public figure or at least that the events that you depict are events that were publicly disclosed, then no privacy right attaches. If the person is not a public figure then you need to be a little more careful here because they would still maintain some control over those aspects of their life and the events of their life that were not made public. I am not certain to what extent these claims expire on death, since with public figures there remains some commercial value in exploiting public awareness of the person’s name or likeness.
Secondly, if the matters that you recount are truthful, then there is no exposure to a defamation claim because by definition a statement cannot be defamatory if it is true. Again, I am relatively comfortable that defamation claims would expire on death (in the same way that damages for pain and suffering expire on death), but haven't researched this issue in detail.
Thirdly, with regard to infringement, you need to make sure that anything you write about the person is an
original work of authorship and not copied from some other source.
Finally, you need to be careful about the legal exposure that might ensue from the use of the famous person’s name and likeness. This is a developing area of intellectual property law and I have not thoroughly researched it. In California, for example, there is a statute that specifically recognizes a property right in the name and likeness of a celebrity as well as a property right in certain of the life events of that person. The statute is very controversial and it has spawned some really bizarre lawsuits. For example, you may recall years ago that McDonald’s came out with an ad called “Make it Mac tonight,” in which a crescent moon-shaped piano player sang a song that was a take-off on “Mack The Knife,” the song made famous by Bobby Darren. Darren’s family (I forget if he was dead or alive at the time) sued successfully by arguing that the commercial misappropriated the character and stylistic elements that had been made famous by Darren. The case was roundly criticized but the law remains on the books. Other states probably are not as far down the road in recognizing this right but you need to be careful in any event about using the name or likeness of a famous person because that person (or their estate) would certainly have a basis for saying that you were “palming off” on the good will associated with that person’s attributes. This is why, as I am sure you recognize, most books contain disclaimers stating that no resemblance to any real person is intended.
Turning to your second idea, which would be to use real people but in
fictional circumstances, the analysis is a little bit different and your actions are far more risky. There would be no privacy claim per se because you would not be depicting private events of that person. Defamation probably would not be an issue if the person was already deceased. The infringement analysis is the same as above, you need to make sure that anything you create is an original work. However, the “name and likeness” issues would still arise because one could still make the same claim that you are profiting off that person’s name and likeness to sell your book. You could temper this by putting in a disclaimer, but there would still be a risk because the other side might claim that the
average reader would not know that this was fiction and might believe that the events actually happened, thus disparaging the person in question or the value of their commercial estate
There is not a specific time limit after a person dies in which these potential legal claims expire. Certainly the privacy right would not survive the person’s death and the same would probably be true of defamation. I do not however feel that comfortable that the name and likeness claims would expire merely because the person passes away. Again, there is lots of litigation in California brought by the estates of famous people who have passed away in which they are able to assert property rights in that person’s name and likeness usually associated with merchandise or other commercial activities.
I would certainly think that the longer the person has been dead, the weaker this claim would become but you need to be careful. If you do want to depict a famous person (such as David Koresh) in fictional circumstances, I am not going to tell you not to do it but I think you need to be very careful.
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Based on his advice, I have chosen NOT to risk myself or my publisher with potential lawsuits, and use only fictional characters, or vague references to news stories that ACTUALLY exist without quoting.
Hope that helps a little.
