In the case you cited, they made a fictitious character based on a real person and defamed him by making him a mobster.
I think you've missed the point. The result of the case seemed to have NOTHING to do with defamation.
The (original) suit alleged 'misappropriation of his name'. Not libel/slander/defamation.
To quote one of the many summaries of the case:
To establish the misappropriation tort, the plaintiff must prove that the defendant used the plaintiff's name without consent to obtain some advantage. In a right of publicity action, the plaintiff must prove the same elements as in a misappropriation suit, with the minor exception that the plaintiff must prove that the defendant used the name to obtain a commercial advantage.
Here, Twist maintains that the use of his name in the Spawn story line created an unmistakable correlation between Twist the hockey player and Twist the Mafia Don. Twist presented sufficient evidence to prove that his name was used as a symbol of his identity. Twist also presented sufficient evidence to establish the intent to gain a commercial advantage by using his name to attract consumer attention to Spawn comic books.
(Ref:
http://www.mobar.org/journal/2003/sepoct/flag.htm)
The case had ZERO to do with defamation.
The case was simply about:
1. His name/persona created an mistakable correlation between him and the fictitious character.
2. Using his name/persona was done with the intent of gaining a commercial advantage.
That's it. No defamation was alleged. It would have been the same result if they'd created a super-hero which was clearly trying to cash in Twist's name.
The case was NOT about defamation.
Mac
PS: I just re-read your post and realised that we were using different definitions of 'persona'.
However, it doesn't change the result - even if you put the
actual character in your fictitious story - you are still trying to gain a 'commercial advantage' by using their character.
To pick a simple example - If I have a movie about Michael Jordan running a basketball camp for underprivileged kids, I'll get sued. Even if I use a body double and avoid defaming him, I'm clearly trying to cash in on the success of his name, without his permission.
If I stick to publicly available facts it is more defensible, but this remember - this thread is about
choosing names for characters in fiction.
If you name a basket-baller 'Michael Jordan' in a movie, then you can expect to get sued - unless it is obvious that you're not trying to produce a correlation between the two characters.
(eg: Our 'Jordan' is an overweight white kid with glasses who gets picked for the team because he happens to have a famous name.)
I'm not claiming it is simple, but the simple advice that
'you can use famous people's name and persona as long as you don't defame them' is obviously over simplifying.
Mac