# Real people, parallel worlds and legal/moral issues



## Amanita (Aug 27, 2012)

Inspired by the thread about Lady Diana in a fantay story, I'd like to know if there are any legal problems with using real-world celebrities in a fantasy world. 
Recently, I've had an idea which did involve real people and I'm asking myself if this is worthy of pursuing or not. The people in question are all dead for quite a while, but descendends of them are probably still alive. Are there some legal prohibitions as to how long someone has to have been dead for this to be possible? 
And what do you think about the moral implications? The people in question are not presented in a bad light but some people might still be offended.
Do you think using invented people would be a better option in this case? It would be possible of course, but it wouldn't be the same, because no invented person would come from the same position these do.
I'm curious about your thoughts.


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## ShortHair (Aug 27, 2012)

Two things. One, by the Fair Use Doctrine, a celebrity has already _de facto_ granted you the use of his/her name, face, and public persona. That issue has been fairly well settled in the courts, otherwise _South Park_ would have been sued out of existence years ago. Two, a person in a parallel universe is by definition not the real person in this universe, so there's no basis for defamation of character.


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## CupofJoe (Aug 27, 2012)

ShortHair said:


> Two things. One, by the Fair Use Doctrine, a celebrity has already _de facto_ granted you the use of his/her name, face, and public persona. That issue has been fairly well settled in the courts, otherwise _South Park_ would have been sued out of existence years ago. Two, a person in a parallel universe is by definition not the real person in this universe, so there's no basis for defamation of character.


I deffer to anyone with legal knowledge but i won't bet on Fair Use Doctrine being so valid in Europe or the UK. Especially at the moment.
You can defame someone in fiction and be sued. It has happened in the UK more than once. In France private lives and personas are very protected. I think South Park gets a pass because it would destroy a celebrity's image to sue them - and then there is that pesky 5th amendment...


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## ShortHair (Aug 27, 2012)

CupofJoe said:


> I deffer to anyone with legal knowledge but i won't bet on Fair Use Doctrine being so valid in Europe or the UK. Especially at the moment.



Sorry, didn't notice the OP was in Germany....


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## Sheilawisz (Aug 27, 2012)

Hello Amanita, in my _Joan of England_ Fantasy series I have two people from our world that also exist in Joan's world (which is a parallel Earth from another universe) and they are Prime Minister Tony Blair and Ice Skater Sasha Cohen.

However, my Tony Blair is described as an old man with very long red hair, while Sasha (her real name, while our world's Sasha is really called Alexandra) is also given a very different description and my Sasha is, at year 2007 of my first novel, way younger than the Alexandra from our world =)

I think that, as long as you include differences like that to create your own parallel world versions of real people from our world, you should have no trouble...


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## Steerpike (Aug 27, 2012)

ShortHair said:


> Two things. One, by the Fair Use Doctrine, a celebrity has already _de facto_ granted you the use of his/her name, face, and public persona. That issue has been fairly well settled in the courts, otherwise _South Park_ would have been sued out of existence years ago. Two, a person in a parallel universe is by definition not the real person in this universe, so there's no basis for defamation of character.



This is not good advice, sorry ShortHair. I don't want anyone to get into hot water over faulty legal advice. There's no real fair use issue here. As a rule we're not talking about copyright. We're talking about right of publicity and defamation issues, maybe some trademark issues depending on how and why the names, likenesses, and so on are used.

Parody and satire are protected first amendment expressions. South Park falls pretty squarely into those categories. 

Defamation has a high standard when the subject is a public figure. The parallel world issue doesn't enter into it. All the plaintiff has to prove is that it will be seen to be about them. There's no reasonable way you could avoid that by simply having a parallel world and trying to argue it is not 'about' the person. Your fallback in the U.S. is that the standard is high (I think you have to show actual malice).

Where you're more apt to run into trouble, depending on how your work is put together, is in the right of publicity areas. Those laws can vary a bit in the U.S. If you're in the 9th or 2nd Circuit they can provide quite a bit of protection to the celebrity (and in some states, to non-celebrities). In some jurisdictions, rights of publicity end at death, but that's not true in all places.

Amanita - odds are, most of what you want to do is in pretty safe territory. A caveat that is always there is that a celebrity with a lot of money who wants to make an issue of it can be a real problem, and from what you've said you would at least on the face of things be giving them issues to raise. If you are concerned, consult with an attorney who handles this stuff.

The above is all US law. Germany is different, but remember that if your work ends up for sale in the US, then US law will matter to you as well.


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## Amanita (Aug 27, 2012)

Thank you Steerpike and everyone else's who's been bothering to answer as well.
I don't think the people in question have living relatives with huge amounts of money, maybe celebrities wasn't quite the right word, famous people more or less. Their actually has been a book about her. It wasn't fantasy but an attempt to retell her life in the form of a novel. Does this make any difference one way or the other? 
It's alway good to know about US law because they have a tendency to sue people from other countries as well. No offense, but at least press coverage makes it seem that way.


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## Chilari (Aug 27, 2012)

Well given that Winston Churchill is a recurring character in Doctor Who, and a lot of historical novels include real people, I think if they died long enough ago you're probably safe. And by that I mean not within living memory of most people. Someone like Lady Di, well, she only died 15 years ago and she was really in the public eye; plus her ex and her sons are pretty influential. But anyone who died before 1950 I would say you're probably safe with as long as you handle it carefully, ie stick fairly closely to the truth as far as their personality and politics and beliefs are concerned.


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## Ophiucha (Aug 28, 2012)

If they are dead, you can basically do anything you want in terms of the legal ramifications. While you _could _face a lawsuit for defamation from any living relatives, those things don't tend to pass when the guy is already deceased. Morally... well, it depends on what you are writing, really. I daresay it would be in poor taste to write a novel about Bin Laden conquering the world on the backs of dragons with an army of the undead. Not illegal, but likely to offend. In general: writing about people who committed atrocities in a positive light, or people widely regarded as heroes or saints (in a religious sense) in a negative light, will cause offence. Whether or not that should keep you from writing the story, however, is really up to you.


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## Steerpike (Aug 28, 2012)

Ophiucha said:


> If they are dead, you can basically do anything you want in terms of the legal ramifications.



This is not true.

Right of Publicity persists after death in many jurisdictions (in Washington State, in fact, it persists after death for celebrities but terminates at death for non-celebrities). Depending on how you are using the name, there may be trademark or similar rights associated with it, and those can persist indefinitely. Rights in a given likeness last after death of the rights holder (which may or may not be the person depicted).

In any event, as I noted above I think Amanita's risk is relatively low. But it pays to act with knowledge, so that one can judge the risk accordingly. In this case, even if people are alive who could bring an action it does seem to be relatively unlikely. But you never know for certain what people will do.


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## Addison (Aug 28, 2012)

As stated, it's a De Facto thing the person has already, knowingly or not, agreed to. Besides there are books, fantasy and not or even comic books, which refer to real celebrities all the way back to the sixties when Cary Grant was referenced in a Batman Comic. Having a scene where your character sees....Robert Downey Jr in a cafe is perfectly alright.


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## Steerpike (Aug 28, 2012)

Addison said:


> As stated, it's a De Facto thing the person has already, knowingly or not, agreed to. Besides there are books, fantasy and not or even comic books, which refer to real celebrities all the way back to the sixties when Cary Grant was referenced in a Batman Comic. Having a scene where your character sees....Robert Downey Jr in a cafe is perfectly alright.



This "de facto " argument is completely false.  Please don't answer these kinds of questions if you don't know the answer, people. Apart from the OP, others reading it might believe it. Of course, you believe internet advice at your own peril, but still...


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## Feo Takahari (Aug 28, 2012)

So, to take an example from an actual, published book series, Prince Harry is a recurring character in The Axis of Time. Is there any particular reason the series can get away with using him, or is it just too low-profile to be likely to be sued?


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## Steerpike (Aug 28, 2012)

Feo:

You have to look at every case on its facts. It is quite possible that there is nothing wrong with the use in the series you mention. As I noted, above, I think the risk to the OP in this instance is minimal, but it pays to know the issues when contemplating something like this.

In the comic book/Cary Grant examples, it may be that Grant gave permission. It is also worth noting that it is not the 1960s anymore and much of this area of the law has evolved a lot.

If you want to go back more recently, a hockey player (Anthony Twistelli, I think) sued Todd McFarlane comics (who publish Spawn) over use of the name Tony Twist. In that case, the similarity rested primarily in the name and the fact that the hockey player was considered something of a bruiser. The character in the comic book wasn't supposed to be the hockey player or anything like that. Twistelli brought a right of publicity claim, won, won again on appeal, and got something like a $15 million dollar judgment. And that particular player isn't even that famous.

So it is worth thinking about, at the very least, and the assertions above that it can be brushed off because you have some automatic right to use these names or likenesses are simply false.


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## Ophiucha (Aug 28, 2012)

Ultimately, I think one of the biggest problems we're having here is that we all live in different states and countries, as do the hypothetical celebrities/historical figures we are talking about. The laws for me, looking to publish my novel in Canada, about a centuries old historical figure from England/Italy, are ultimately quite different than somebody from California looking to publish a book on a decades old celebrity who is also from California. The one problem with the internationality of the internet, perhaps.


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## Steerpike (Aug 28, 2012)

The problem these days is if you publish your book and make it available in California, you may be subject to jurisdiction there even if you don't live there.


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## BWFoster78 (Oct 29, 2012)

I'm co-writing a YA paranormal thriller with my niece.  Part of the concept is to kill off characters based on her friends in fun and creative ways.  I have a couple of worries:

1. I'm assuming that it's a bad idea for the characters to be too closely associated with the real people.  I think that, at a minimum, I should change some basic facts and their names.  What really is the danger, though?  Can  their parents sue for part of the money?  How many changes do I need to make?

2. In today's hypersensitive school environment, I want to make sure she doesn't run afoul of her school.  Should I change the name of the city and high school as well?

I'd appreciate any advice.

Thanks.


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## CTStanley (Oct 29, 2012)

I have no idea of the legal issues involved, and film may be different than books, but when you look at films like 'Ozombie' (about osama bin laden being a zombie), The Abraham Lincoln vampire killer, the one about JFK and numerous other films portraying famous but dead people surely if they can get away with it novelists can?


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## BWFoster78 (Oct 29, 2012)

I would think that a different standard exists regarding celebrities vs ordinary people.


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## Steerpike (Oct 29, 2012)

BWFoster78 said:


> I would think that a different standard exists regarding celebrities vs ordinary people.



Depends on the jurisdiction. Some recognize a right of publicity for any person, whether a celebrity or not. Others limit right of publicity to celebrities. With celebrities, you might have more issues come into play, however.


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## Ankari (Oct 29, 2012)

I would use the real school but fictional characters.  If you do it right, you could create a Da Vinci effect.  Ask your niece for any legends or rumors about the school.  Since kids have a limited memory, ask so tenured teachers the same.  Walk the school and try to identify great areas that can be twisted to enhance your story.  Kids in the school should love that kind of stuff.


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## BWFoster78 (Oct 29, 2012)

How much do I need to change the characters?  Will simply changing the name be enough?


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## Ankari (Oct 29, 2012)

BWFoster78 said:


> How much do I need to change the characters?  Will simply changing the name be enough?



I would change names and a few physical characteristics.  You can keep the personality.  After all, many people don't see the flaws of their own character flaws.  Changing the physical description should be enough.


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## Steerpike (Oct 29, 2012)

BWFoster78 said:


> How much do I need to change the characters?  Will simply changing the name be enough?



There are a number of potential legal issues that come into play, but a fairly constant standard is that the character you are dealing with would have to be recognizable as being the person in question. Changing a name may not be sufficient if you are dealing with a well-known, highly recognizable person such that anyone can figure out who it is. For people who aren't famous, changing the name may well be sufficient.

Also, keep in mind that there are certain protections for parody and satire, and if you are dealing with a public figure they'll have a very hard time winning a defamation case because the standard is normally very high.


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## BWFoster78 (Oct 29, 2012)

I don't think I'm worried about winning a suit as much as trying to prevent one in the first place.  It's probably stupid, but I'm envisioning two nightmare scenarios (though I think both are fairly improbably).

Scenario 1: Niece's friends parents think - This guy is making money off something that features my daughter.  Let me sue and see if I can get some of the money.

Scenario 2: School principal/administrator thinks - This student is planning a mass murder at the school.  Let me expel her.  (To be clear, all the murders in the book are committed by a supernatural force which the students are fighting).


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## Jess A (Oct 30, 2012)

Ultimately, if you're unsure, seek the opinion of a lawyer in your area. In Australia, the only state where a deceased person can be defamed is Tasmania. They must be living in all other states. However, there may be a case for defamation (in Australia) if a living person is associated with the wrongdoings (for example) of the dead. 

Defamation in Australia generally revolves around a loss of reputation. Causing people to shun, ridicule them. Loss of reputation. Able to identify the plaintiff, even if not specifically named. As someone mentioned above, you're fairly unlikely to have a case placed against you, but you always want to know how to defend yourself if it ever came to that.

I've seen a lot of deceased, famous people in fiction.

Where it comes to living celebrities, 



Steerpike said:


> The problem these days is if you publish your book and make it available in California, you may be subject to jurisdiction there even if you don't live there.



And there's the Internet to consider, too; there could be an issue with publication in other jurisdictions.


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## Jess A (Oct 30, 2012)

BWFoster78 said:


> How much do I need to change the characters?  Will simply changing the name be enough?



In Australia, simply changing the name may not be a defence against defamation. If you can reasonably identify the person through, for example, the school's name, certain characteristics (ethnicity, gender, religion -- anything that makes them identifiable), and you defame them somehow, then that's an issue. As Steerpike said, it's unlikely a non-famous person will be so easily identified, but I would seriously change more than just the name. 

Quite frankly I wouldn't use the real school, either. This is, to me, what makes it so risky - imagine having the school and city name, then having a character based on the current principal with lots of easily identifiable characteristics. Then you set about making that principal the villain, even though it's not true, and he or she loses reputation amongst the students who read the book. Even if defamation never becomes an issue, ethically I would see that as being wrong. Just an example, mind you. Why not make up a school? You can keep the city, but change the school name, change its motto and mascot (etc).


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## BWFoster78 (Oct 30, 2012)

Little Storm Cloud said:


> In Australia, simply changing the name may not be a defence against defamation. If you can reasonably identify the person through, for example, the school's name, certain characteristics (ethnicity, gender, religion -- anything that makes them identifiable), and you defame them somehow, then that's an issue. As Steerpike said, it's unlikely a non-famous person will be so easily identified, but I would seriously change more than just the name.
> 
> Quite frankly I wouldn't use the real school, either. This is, to me, what makes it so risky - imagine having the school and city name, then having a character based on the current principal with lots of easily identifiable characteristics. Then you set about making that principal the villain, even though it's not true, and he or she loses reputation amongst the students who read the book. Even if defamation never becomes an issue, ethically I would see that as being wrong. Just an example, mind you. Why not make up a school? You can keep the city, but change the school name, change its motto and mascot (etc).



That's probably a good idea.  Thanks!


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## Amanita (Oct 30, 2012)

> Part of the concept is to kill off characters based on her friends in fun and creative ways.


Did the friends consent to this? If not, I'd consider this morally highly problematic, legal qualms put completely aside. 
If someone I know wrote  story about me or someone a lot like me being murdered, I'd probably be extremely disturbed. Especially if it's considered a "fun" thing. Might have to do with my taking the deaths of even completely fictional people way more seriously than many, but still something to consider.
If it's a game she's been playing with her friends or something and they don't mind, that's no problem of course.


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## BWFoster78 (Oct 30, 2012)

Amanita said:


> Did the friends consent to this? If not, I'd consider this morally highly problematic, legal qualms put completely aside.
> If someone I know wrote  story about me or someone a lot like me being murdered, I'd probably be extremely disturbed. Especially if it's considered a "fun" thing. Might have to do with my taking the deaths of even completely fictional people way more seriously than many, but still something to consider.
> If it's a game she's been playing with her friends or something and they don't mind, that's no problem of course.



I think that her friends are okay with the concept.


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## brokethepoint (Nov 1, 2012)

See that is why I have not started my one novel, it just wouldn't work as well without the use of famous people.  But if I can use dead famous people, oh I can make that work.


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