Writing Blog Number 2

20240526 Using Real People In Fiction

Using Real People In Fiction

Another request from the WdC community. When can we use real people in fiction?

Great question!

Before I begin – I am not a lawyer. This comes from my dealing with publishers, doing writing and the law in both my professional writing diploma and my creative writing bachelor’s degree, and a formal meeting with the legal centre for writers in Australia. If in doubt, contact legal advice in your own jurisdiction.

First, let’s look at living people. There, the simple answer is: if the person is in the public eye, then you can use them. It really is that simple. It has been tested in courts in the USA, UK, Canada and Australia.

What is the public eye? Literally anything where they have put themselves into that sphere. Movies, TV, music, politics, YouTube, sports, anything where their photograph or video footage is willingly included, or where they share their real life. Also, convicted criminals are fair game.
         A few phrases to be noted there:
                   put themselves – the person has to have made the choice to be a public figure
                   willingly – there has to have been no coercion
                   share their life – even without visual, if a person is active on any public social media.
         In the case of convicted criminals, they may be used, but cannot be depicted committing crime unless details of their case are public. This is official details, not newspaper reports.

If, on the other hand, a person goes by a name only and has not released a picture or any personal details to the public, just their art (as it is usually artists who do this), then they are not fair game. You can mention their art, and the fact they created it, but not use them as characters. Banksy has, though lawyers, successfully sued a few writers in the UK. Details have been made private, but I believe at least one was a fiction work.

Now, here is where you have to be careful. Even in a work of fiction, if you portray a person as something they are not, then you can be done for libel. This gets murky. In Australia, it is based on “the pub test” – what would a person at the local pub think or believe. If you wrote a story where David Berkowitz (the ‘Son Of Sam’ killer) kills someone, the pub test would not count that as libellous; if you had him mastermind the September 11 attacks, then, yes, that would be libellous because no-one in the pub (“in their right mind”) would believe he did that.
         Note, can be done. If I wrote a story where Barack Obama became a superhero and stopped an alien invasion, then he could get me for libel, but the chances are, because he is portrayed as heroic, he would not bother. Like I said, murky.

There is another caveat. If you portray a convicted criminal as doing something, and then the conviction is overturned and they are exonerated, then they can do you for libel, even though it is retroactive. It has not happened to a work of fiction, to my knowledge, but the legal recourse is there.

The only way you can get away with it is if you call it parody, and it can be proven as such. For example, Team America; World Police. Sean Penn tried to get them for defamation; he failed. Alec Baldwin, on the other hand, offered to dub in his puppet’s lines himself. That did not help Penn’s case, by the way…

The only way to get around libel laws is to have written permission from the person. A classic example is Ben Elton’s book Chart Throb, where Prince Charles is a central character. He gave his written permission to Ben to include him in the work. Where he is a singer on a reality TV talent show. Seriously. It is a great book.

Now, this is only for works of fiction, and so only covers depictions of real people. Non-fiction works have their own set of libel laws which vary not only from country to country, but jurisdiction to jurisdiction. I am not going to even begin to look at non-fiction here; please consult a legal professional.

Okay, dead people.

Talk about murky!

If a person is long dead (antiquity through to Georgian era), then use them to your heart’s content. However, if you use a famous person and it goes against what people know of a person, even if in parody, then most traditional publishers will send you on your way, and a place like Amazon has been known to refuse to stock books like that. One that springs to mind was a book portraying Joan of Arc as a literal prostitute. Self-published, no website would carry it and I am guessing the writer has a fine collection of unsold books in their attic.
         This was not a work of pornography, by the way. Porn has its own rules and I have not looked into them. And won’t. Don’t ask about it.

More recent dead, where there are still family members in direct lineage alive, then assume everything for a living person holds, although the portrayal would have to be very off for a case to fit. Abraham Lincoln: Vampire Hunter never copped any flack for using the former president. Once Upon A Time… In Hollywood had a few complaints, but no legal action was raised. I could only find one case where a book was find to have libelled a dead person – an Australian book that depicted former PM Gough Whitlam as a Communist assassin who killed Harold Holt was self-published 2 years after his death, and two of his sons sued and had the book pulped. The defence was that it was a work of fiction; the court found that was not good enough. Maybe a case of too soon, but who knows?

In fan-fiction, see "20240303 Writing Fan Fiction"  for general guidelines, but there are so many real-life ships going on in ao3 and ff.net that lawyers could have a field day. However, it seems that so long as it stays on the fan-fic sites, it is ignored. However, US legal advice is that if someone does decide to go after shippers, then they would win. But the Streisand Effect and fan backlash could make it completely not worthwhile.

On a personal note, I used WWE wrestlers as characters in 2 fan-fiction works that I have sold. I received permission from WWE at the time. But that could be murky as to if it was based on real people, because it was based on the characters portrayed – the wrestlers, not the real people behind the personae.

So, basically, if using a real person, be very careful. Or get their permission.

Or, in my opinion – don’t do it.