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King Neptune
10-29-2013, 03:47 AM
How badly can I be sued if I use a famous living person as a character. Would a disclaimer to the effect that all characters are fictional be adequate? I will change the names to protect everyone, or is that necessary with people who have been widely publicized for a considerable time? I searched for something that would be more than just general principles.

Would something to the effect of "All characters and events in this are fictional, even if they may be vaguely based on actual persons," keep me off the hook?

cbenoi1
10-29-2013, 04:43 AM
> How badly can I be sued if I use a famous living person as a character.

How much money have you set aside to defend yourself in court?

-cb

TheNighSwan
10-29-2013, 05:38 AM
It depends where you are. As far as I know, in the US, while defamation laws do exist, they generally strongly favor the accusee and put a heavy burden of proof on the prosecutor.

It's different in Europe, where indeed simply mentioning a famous person's name can be ground for a defamation trial. However that also depends greatly of *who* you are mentioning and *in which context*.

Some public personalities have a very thick skin and never sue anyone over matters of defamation. And on the other hand of the spectrum, you have personalities who do not want to be mediatised and that have lawyers hired on a permanent basis scooping every publication for any unauthorised mention of the personality's name, which they systematically sue.

And then of course you get all sort of intermediaries between those. So it would be important to know 1) where you are 2) who are you going to use 3) what will you make them do/say and 4) what kind of audience will your work have.

Ninja-edit: in any case, publishers will often (always?) have a prospective book read by a professional lawyer, who not only knows relevent defamation laws very well, but also knows *in practice* which personalities you can make fun of and get away with it and which you just-do-not-mention-period.

cornflake
10-29-2013, 05:50 AM
How badly can I be sued if I use a famous living person as a character. Would a disclaimer to the effect that all characters are fictional be adequate? I will change the names to protect everyone, or is that necessary with people who have been widely publicized for a considerable time? I searched for something that would be more than just general principles.

Would something to the effect of "All characters and events in this are fictional, even if they may be vaguely based on actual persons," keep me off the hook?

I honestly don't really understand what you're asking.

Disclaimers like that don't get you off the hook for anything, just to start with.

However, if you're using a real person as a character, how would everyone be fictional?

Then you say changing the names - are you talking about writing about real events or a famous person's real life and just changing the name?

These are very, very expensive lawsuits you're likely talking about, though I'm not really sure what you mean.

DeleyanLee
10-29-2013, 06:25 AM
Ninja-edit: in any case, publishers will often (always?) have a prospective book read by a professional lawyer, who not only knows relevent defamation laws very well, but also knows *in practice* which personalities you can make fun of and get away with it and which you just-do-not-mention-period.

Depends on the contract. I've seen several contracts with large publishers which basically state that any suit is the author's responsibility, and if they have to defend themselves because of the book, it could come out of the author's pocket. But now that I'm thinking of it, I'm not sure if that's just for plagiarism or if it's any lawsuit.

Personally, I'd just make up a movie star or novelist or politician or whatever and use that character instead of running that kind of unnecessary risk.

King Neptune
10-29-2013, 03:45 PM
> How badly can I be sued if I use a famous living person as a character.

How much money have you set aside to defend yourself in court?

-cb

not a farthing

King Neptune
10-29-2013, 03:51 PM
It depends where you are. As far as I know, in the US, while defamation laws do exist, they generally strongly favor the accusee and put a heavy burden of proof on the prosecutor.

It's different in Europe, where indeed simply mentioning a famous person's name can be ground for a defamation trial. However that also depends greatly of *who* you are mentioning and *in which context*.

Some public personalities have a very thick skin and never sue anyone over matters of defamation. And on the other hand of the spectrum, you have personalities who do not want to be mediatised and that have lawyers hired on a permanent basis scooping every publication for any unauthorised mention of the personality's name, which they systematically sue.

And then of course you get all sort of intermediaries between those. So it would be important to know 1) where you are 2) who are you going to use 3) what will you make them do/say and 4) what kind of audience will your work have.

Ninja-edit: in any case, publishers will often (always?) have a prospective book read by a professional lawyer, who not only knows relevent defamation laws very well, but also knows *in practice* which personalities you can make fun of and get away with it and which you just-do-not-mention-period.

Thanks, I'm in the U.S., and there would be nothing defamatory; although one can never tell what a court might say.

I am trying to think of a way to avoid mentioning anyone by name, but the story almost requires using the names.

King Neptune
10-29-2013, 03:58 PM
I honestly don't really understand what you're asking.

Disclaimers like that don't get you off the hook for anything, just to start with.

However, if you're using a real person as a character, how would everyone be fictional?

Historical fiction often uses a mixture of real and made-up characters, but I am using parallel universes; the one I mention in the story isn't the one who is in this universe.


Then you say changing the names - are you talking about writing about real events or a famous person's real life and just changing the name?

These are very, very expensive lawsuits you're likely talking about, though I'm not really sure what you mean.

I am using a different twist on events that actually happened. There are elements of actual past events, but nearly everything is made-up. If I change a name, then I should be able to keep it so impersonal that there could be no suit. For example, I could write simply that a certain band played at a place and time that are recorded as something that they did.

It's a work in progress, so I have options.

kaitie
10-29-2013, 04:38 PM
Wasn't there a lawsuit recently with Scarlett Johanneson (I never spell that right) suing someone for writing her as a character in a book? How did that turn out?

The_Ink_Goddess
10-29-2013, 04:53 PM
Wasn't there a lawsuit recently with Scarlett Johanneson (I never spell that right) suing someone for writing her as a character in a book? How did that turn out?

This is what you're talking about:


"The American star is challenging writer Grégoire Delacourt, and his publisher JC Lattes, after he described a character in his novel as being her “doppelgänger”, or exact double. The case – if it comes to court – could make legal and literary history.

Despite the author insisting that the comparison is meant as a compliment and tribute to Ms Johansson’s beauty, the actress, famed for her role in Lost In Translation, is demanding compensation and damages from the publisher for the “breach and fraudulent use of personal rights”.

She is also seeking to ban all foreign translations and film adaptations of the book – despite the fact that Scarlett Johansson is the perfect choice of actress for the role of a woman who looks like Scarlett Johansson, this being the most obvious job opportunity in cinema since John Malkovich appeared in Being John Malkovich.

The book in question, La première chose qu’on regarde (The First Thing We Look At), was published in March. It concerns a mysterious woman who looks just like Ms Johansson, who asks for help at the house of a car mechanic in a village in the Somme, in northern France.

The mechanic is convinced at first that it really is Scarlett Johansson (it seems that Hollywood actresses frequently turn up in remote villages in the Somme). Only 60 pages later does he realise that it is not Ms Johansson but a woman called Jeanine Foucaprez, who is her exact double.

Mr Delacourt says that he is “stupefied” that Ms Johansson has taken legal action. He is convinced that she has not even read the book, which has so far appeared only in French.

“I am also very sad,” he told the newspaper Le Figaro. “I was hoping that she might send me flowers because this book is, in a way, a declaration of love.”

from here: http://www.independent.co.uk/arts-entertainment/books/news/scarlett-johansson-sues-bestselling-author-for-using-name-in-novel-tribute-8650285.html

This is even more baffling and extreme to me because it doesn't seem like she's mentioned in a remotely critical or unpleasant light - in fact, the woman isn't even her. As far as I can tell from Google, nothing has moved forwards on this yet, but I'd be surprised if a European court would find in her favour. (NOT A LAWYER)

King Neptune
10-29-2013, 05:08 PM
Thanks

That's what I was thinking about. Even if it is complimentary it is actionable. The question remains what the court will decide. But tht doesn't make much difference, because the cost of going to court would be mmore than I would want to pay.

The_Ink_Goddess
10-29-2013, 05:19 PM
Thanks

That's what I was thinking about. Even if it is complimentary it is actionable. The question remains what the court will decide. But tht doesn't make much difference, because the cost of going to court would be mmore than I would want to pay.

Especially if you don't really, really need that famous person. For instance, Marisha Pessl's NIGHT FILM focuses on a notorious film-maker who is essentially a Hitchcock-Kubrick amalgamation; GONE GIRL by Gillian Flynn has Ellen Abbott, who is essentially Nancy Grace, complete with Southern accent. The author above probably could have described a really famous film star in-story. Your reader will be willing to make the suspension of disbelief, and will probably make the connection with who you actually mean.

King Neptune
10-29-2013, 05:53 PM
Especially if you don't really, really need that famous person. For instance, Marisha Pessl's NIGHT FILM focuses on a notorious film-maker who is essentially a Hitchcock-Kubrick amalgamation; GONE GIRL by Gillian Flynn has Ellen Abbott, who is essentially Nancy Grace, complete with Southern accent. The author above probably could have described a really famous film star in-story. Your reader will be willing to make the suspension of disbelief, and will probably make the connection with who you actually mean.

I do need that famous person, but changing the name is a time honored way around, and a bit of description might make it clear. And I might be able to make some references that would make it even clearer.

cornflake
10-29-2013, 06:15 PM
I do need that famous person, but changing the name is a time honored way around, and a bit of description might make it clear. And I might be able to make some references that would make it even clearer.

If it's identifiable as the person, that won't help you. You can't write, say, a story about John Hiker, but have him marry an older woman, get involved in Scientology, marry a redheaded Australian, have a couple kids, divorce, hire an actor from a teen show to be his next wife and jump on the couch on the popular talk shoe in your fantasy world, Jennifer!, etc., and be somehow safe from a Tom Cruise lawsuit, because it's obvious to anyone not under a very large rock whom you're talking about.

WeaselFire
10-29-2013, 10:25 PM
How badly can I be sued...
Can you be sued goodly?

Sorry, my editor side snuck out for a minute. I've beaten it back into its hole... :)

Jeff

King Neptune
10-29-2013, 10:33 PM
If it's identifiable as the person, that won't help you. You can't write, say, a story about John Hiker, but have him marry an older woman, get involved in Scientology, marry a redheaded Australian, have a couple kids, divorce, hire an actor from a teen show to be his next wife and jump on the couch on the popular talk shoe in your fantasy world, Jennifer!, etc., and be somehow safe from a Tom Cruise lawsuit, because it's obvious to anyone not under a very large rock whom you're talking about.

What is a tom cruise? http://www.absolutewrite.com/forums/images/icons/icon10.gif

I'll have to think about how much I need a character to be like someone who still draws breath. There are some things that are required, but some characteristics are not required.

King Neptune
10-29-2013, 10:35 PM
Can you be sued goodly?
.. :)

Jeff

That's why I asked around. A goodly suit is only good for lawyers; they have to eat too, but not at my expense.

Cyia
10-29-2013, 10:37 PM
INAL, mind you.

Using a living famous person is not smart. They've got legal control of their own image, and living people can be victims of slander and libel. Even if you don't intend to do either of those things, they still have the right to control who does and does not profit from their image, and they have the right to decide how that image is used.

You *can* generally use a real, live person along the lines of "Hey, I think I just saw Julia Roberts at the grocery store!" or "Hey, I'm going to a Beyonce concert!"

But, in neither of those instances are they actual characters in your story; they're setting.

Even the "names have been changed" defense is a sketchy one. I can never remember the particulars, but we've discussed a case on this site more than once involving a woman with a flowered hat. The woman took a former friend to court over a book. Despite a different, name, location, occupation, and general appearance she maintained that the character was still noticeably similar to her -- and she won.

King Neptune
10-29-2013, 10:45 PM
INAL, mind you.

Using a living famous person is not smart. They've got legal control of their own image, and living people can be victims of slander and libel. Even if you don't intend to do either of those things, they still have the right to control who does and does not profit from their image, and they have the right to decide how that image is used.

You *can* generally use a real, live person along the lines of "Hey, I think I just saw Julia Roberts at the grocery store!" or "Hey, I'm going to a Beyonce concert!"

But, in neither of those instances are they actual characters in your story; they're setting.

Even the "names have been changed" defense is a sketchy one. I can never remember the particulars, but we've discussed a case on this site more than once involving a woman with a flowered hat. The woman took a former friend to court over a book. Despite a different, name, location, occupation, and general appearance she maintained that the character was still noticeably similar to her -- and she won.

That decision was too broad. All humans look similar. If I describe one, then any other human is almost described, but it easy to make people who sue about things like that look like fools.

Thanks, I'm starting to think about ways to tell it with significantly different characters.