Using real people's names in fiction?

Today there's an interesting article I read in the Houston Chronicle. It's wiresourced from the Chicago Tribune. Sorry, I don't have the online reference -- you'll have to search for it.

Essentially, it says that there's a real Steve Zissou (the character played by Bill Murray in the new "Live Agnostic" comedy film).

Zissou is apparently a NY federal crime attorney. The studio legal department had of course vetted the name previously, and Zissou found out later.

The article doesn't say whether he complained to the studio, or if he simply notified them with some detached amusement. Regardless, a settlement of some sort was made (terms not disclosed) and his name appears in the credits.

Anyway, a Houston entertainment attorney is quoted in this article, responding to the possible ramifications if you unintentionally use a real person's name.

The test is: 'If it's a private citizen, would the person whose name is being used be readily identifiable?"

In other words, if you use the name "Mike Andrews" and make him a race driver who gets killed in your spy thriller, a private person named Mike Andrews who is in real life a gourmet chef would not be able to claim damages.

However, if your character is a chef who poisons people who visit his restaurant, you would likely be in a world of hurt.

My protagonist in my mystery novels is "Mitchell King" and I'm dead certain that there's a real Mitch King out there somewhere. I can only hope he's not a private detective with serious emotional problems.

Anyone have experience with this situation? Or comments?

Comments: Obviously throughout history this has occurred.

A man once wrote Tolkien. His name was Sam Gamgee, but not "Samwise".

It's inevitable that unless you come up with names like Spikyanardoluwi, you are going to have to hit on someone's real name. But I hate the nonsense of someone filing a lawsuit on that basis, unless there was an intentional use of a specific name, such as taking your neighbor's name and making it a monster in one of your stories because he ticked you off.

Current legal precedent seems to favor the "It is not who you aim at it is who you hit" school of thinking.

It is also part and parcel of what I think of as the "Wussing out of America." Think of it, a grown man walks into work one day and finds himself teased by his coworkers because his name is the same as some guy in a novel. What does he do?

Laugh and tease back like an adult human being with a reasonable sense of humor?

Hell no. What he does is run sniveling to a judge crying, "I got teased because of that big bad writer over there who is a very mean person." and the judge says, "Why you poor little boy you. I'll make them pay for all your tears and suffering."

In the original version of my WIP, I had a great chapter where Charlie Sheen and John Cusack stumble into my town and interact with my fictional characters. I've since changed the names to fictional names, but it just doesn't have the same punch that it used to.

I keep thinking of the movie "Being John Malkovitch" (in which Charlie Sheen played himself as well as J.M.) How did the screenplay writer get away with that? I mean, I imagine that in the end obviously John and Charlie came on board with the idea, but how did that screenplay pass the first agent?

Shouldn't the agent have rejected it out of hand in fear of a lawsuit?

Being John Malkovich was a "concept movie" and was dependent upon Malkovich being in the film. If Malkovich had refused, they would have approached someone else and the film would have ended up being called "Being Jack Nicholson" or "Being Sean Penn" or whoever eventually agreed to do it. Once a screenplay is sold it is often rewritten for numerous reasons, so it would have been nothing out of the ordinary if the script had to be revised to accomodate a change in casting.

The screenplay was brilliant and that was probably all the agent cared about. It's the studios that worry about lawsuits, etc. But the studio knew that they would need the participation of Malkovich in order to do the film as it was written, so there was probably no concern of a lawsuit by Malkovich.

As for Charlie Sheen - if Sheen had said no again they just would have found some other actor to play himself.

I take it though, this would probably not fly in the world of novels. If I put Charlie Sheen into my fiction, my guess is my (future) agent would tell me to change right away (if he didn't tell me to get lost).

Now that we have Google, it's a trivial matter to just search for the name and see if any results turn up, and see if some less common alternative might work just as well.

I wonder if this could open writers up to more legal action since it would have been so easy for them to avoid...

Odds are very high that any normal sounding name you use belongs to hundreds or thousands of people. It just isn't something to worry about. Unless you're deliberately using a specific person in fiction, there are no consequences, and usually not even then.

I've used dozens of real people in my fiction, from the famous (Billy Martin) to the ordinary guy down the street.

We hear a lot about this, but honestly, when's the last time you heard of anyone successfully sueing a writer because that person thought he was used in a novel?

When's the last time you read about such a lawsuit, even if it wasn't successful? I can recall only one case. The use of the person was blatant, intentional, and highly insulting. The person won, then the case was overturned on appeal.

Other than this one case many years ago, I haven't even heard of such a case going to court, though some probably have, and I know it's not something any of my publishers have ever worried about in the least.

Most lawsuits have nothing to do with the name being used, but the actions of an individual. Writers have been sued over Roman à Clef novels where the names of people are changed, but their activities are presented as fiction. Such novels are written all the time, and just about everyone knows who the writer is really writing about, but I don't think any of these lawsuits have been successful, either.

The last thing a writer needs to worry about is whether or not someone else might bear the same name as a character in his story. Do you know how many people in this world bear the name James Bond? I've known two, and grew up with one.

The biggest fear a writer should have about names is that someone else has your name, and he gets it on the jacket of a best-selling novel before you do.

In the original version of my WIP, I had a great chapter where Charlie Sheen and John Cusack stumble into my town and interact with my fictional characters. I've since changed the names to fictional names, but it just doesn't have the same punch that it used to.

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Ahhh, you are dealing with celebrities. There is a huge difference. Unless you have Sheen and Cusack doing something truly abominable they should have no grounds for complaint, or unless the novel gives them a large part and the story depends on them -- In which case they would have a right to complain. If they just bounce into town, say hi and bounce out, there is probably no problem. I'd leave the names in until the publisher told me to change them.

In fact one writer who was writing what everyone believed to be an unfavorable unauthorized biography of Frank Sinatra escaped being sued by having the main character personally meet Frank Sinatra. Seen as a person cannot meet and speak with themselves the main character could not in fact be a depiction of Frank Sinatra.

Shouldn't the agent have rejected it out of hand in fear of a lawsuit?

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Not necessarily. Public people (sports stars, celebrities, etc.) give up anonymity de facto and may therefore be mentioned in fiction.

However, if that person is defamed in the work of fiction, then there's possible cause for legal action.

I know that "Being John Malkovich" was borderline, as the character is shown as "unusual" to say the least. But apparently JM was contacted early enough and gave his blessings to the affair.

I myself have used real people in my novels. An affable bartender or restauranteur is mentioned in passing. However I am very careful not to say anything bad if I do this.

If it's done as "satire" everyone is fair game, celebrity or not.

Otherwise, you should perhaps check with your lawyer first...

What's worse -- using real people's names, or using real people?

There was a huge controversy around Peyton Place -- Many of the people were identifiable.

I'll mull over all the advice you guys have provided. All good points! It's just - Sheen had kind of a spotlight for one whole chapter, early on in the novel, and he was a pivotal cog in setting up the mood, setting and plot.

His part of the story is set in 1992, when he was still in the tabloids, being denounced as an out of control drunkard. I cast him in a favorable, fairly heroic light, but his drinking and his media image is central to his role.

It's a borderline issue. I don't mean to portray him as negative, but it could be construed that way. Further, I'm taking generous historical libertiest to work him into my plot.

There is a satyrical, humorous, bent to the whole novel, but I don't know if that's enough to justify what I've done with Sheen (and Cusack).

As I said, I've changed them into fictional stars to stay on the safe side, but the drawback is that I lose some impact. That impact, of course comes on the coat-tails of Sheen's career and the hard work he's done to establish his own name.

The ideal situation would be for Sheen himself to give his blessing to the thing, but to get to that stage, the novel would have to be on the brink of publication - a state it may never acheive with Sheen's identity intact.