Christine's Note: This is a guest post by Kathryn Goldman, a lawyer who represents writers, artists, and businesses to protect their intellectual property. Check out Kathryn's free ebook, Rip-Off Protection Report for Creative Professionals. [Her article below is written to give us an idea of how to be thoughtful about intellectual property and the law when we write our stories, and is not legal advice.]
Does your story call for an appearance by the brilliant Emma Watson, hunky Liam Hemsworth, or some other charismatic celebrity, but you don’t know if you are allowed to use them in your book? What if your story is really about your next door neighbor whose life is crazy-weird but totally interesting? Can you use him as a character?
Many aspiring writers who want to use famous people (or real people who aren’t famous) in their stories worry about whether they should spend the time crafting a plot line around that person only to be told by an agent that they can’t do it that way.
If you are writing a story that takes place today, yesterday, or even in the future, you may want to include a real live person or maybe someone who has already died.
It can be done but you need to know the rules so you don’t put your foot into any legal muck that might get you turned down by a publisher, forcing you to rewrite your story.
Using a Celebrity in Your Story
The rules for using famous people in your story are different than using ordinary people in your story. Famous people have a greater ability to enforce their rights if you include them as a character incorrectly. They are more likely to hire lawyers to protect their image, so publishers shy away from stories using celebrities as characters.
A famous person is someone whose name or image has independent commercial value. That means someone who earns their living, or makes money, because of who they are –like Emma Watson or Liam Hemsworth. Their names and pictures have value.
Using a famous person who has died is safer than using live celebrities. With some exceptions (like people who died in California and a few other states), the right of publicity and claims for defamation die when the person dies.
Famous people should not be used as characters in your story.
Characters require you to make up what they do and say.
- If you made Emma Watson the main character of your story, you would be taking advantage of her celebrity status to sell your books. That’s an invasion of her right of publicity.
- If you made up something that Liam Hemsworth did or said – like he wouldn’t date someone because she is in a wheelchair – you would be risking a claim for defamation or false light – placing someone in a false position by attributing to him characteristics, conduct or beliefs that are false.
Famous people can make cameo appearances in your story.
- If your hero attended a rally where Emma Watson actually spoke as an activist for gender equality, you can use that in your story. Emma Watson really is an activist for gender equality.
- If you read an interview of Liam Hemsworth, you may learn many things about his private life that are true that you can use in your story. He volunteers for a charity that works for child protection, for instance. Your hero may be a child in need of protection who crosses paths with Liam at a real event.
Expressing your opinion, or your character’s opinion, about a celebrity, is fair as long as you don’t change the facts.
In The Fault in Our Stars, Gus told Hazel that she looked like Natalie Portman in “V for Vendetta.” That’s a proper use of a celebrity in a story. Gus was expressing his opinion that Hazel looked like Natalie Portman.
Using Other Real People in Your Story
Ordinary people like your best friend, cool uncle or crazy neighbor, have greater rights to privacy than celebrities.
And although regular folks may not have lawyers lined up to protect them, some people will sue if they find themselves depicted as a character in a book.
An ordinary person is someone who does not live their life in the spotlight. A person who is not a celebrity does not make money off of her name or image.
There are two major ways to protect yourself and your story when using a character based on a real person:
- The first is to be truthful about the person. Don’t exaggerate their traits or actions in ways that make them appear ridiculous, nasty or criminal. (WARNING: Your view of the truth and their view of the truth could be different!)
- The second is to change the character so much that the real person is unrecognizable to anyone who knows him, or even to himself. This is the better approach.
If you decide to write about a real person, stick to describing action that takes place in a public location – there’s no right to privacy if your crazy neighbor hula-hoops naked in his front yard.
Famous or Unknown, People Tend to be Touchy about Privacy
Writing about another person’s life and events that take place in private could be considered an illegal intrusion upon seclusion whether that person is a celebrity or your next door neighbor.
Just because you know something juicy about someone doesn’t mean you should write about it. This is especially true if what you know is of no valid concern to the public.
You can use real life events and people to help inspire your story. But remember that it is your imagination developing your character’s lives that is going to make your story great. You don’t get that from other people’s lives.
Check out Kathryn Goldman’s free e-book on how to protect your own creative work before posting it online.