“Real person fiction” is extremely popular these days — but popularity doesn’t make it legal. Let’s look at a few aspects of using celebrities in books or novels to try to clear up the misconceptions that surround real person fiction so that you can avoid potentially infringing on someone else’s rights with your own work of fiction.
There is no bright-line rule when it comes to real person fiction; rather, there are a few factors in play here. These factors may include:
- Whether the person is a celebrity
- Whether the person in question is alive or deceased
- If they are deceased, for how long
But first, let’s take a look at a few related areas of law: appropriation of likeness, and right to privacy.
Appropriation of Likeness
A lawsuit for an appropriation of likeness would require proof that you’ve used the person’s name for your own benefit — but this “benefit” is not limited to a financial one.
For example, courts have ruled that there was appropriation of likeness in cases where a disgruntled employee has pursued a personal grudge against their ex-employer (Felsher v. University of Evansville, 2001) even though money was not directly involved.
In another case, courts ruled that a man appropriated the likeness of a law firm in order to broadcast his views on abortion (Faegre & Benson, LLP v. Purdy, 2006). Money was not involved here either, but the name of the law firm was deemed to have been used for the man’s personal benefit.
Right of Publicity
The right of publicity involves the notion that a celebrity’s name carries value, and that value is being improperly utilized for the commercial gain of someone not authorized to capitalize on it.
Right of publicity is a tricky subject; various states have handled this differently, some state law specifically defining “right of publicity” and other states leaving the interpretation to the courts on a case-by-case basis.
However, the publicity rights established by legislature and by the courts are relatively consistent: the main factor seems to be whether or not a person’s name or likeness is considered not to be “sufficiently related to the underlying work” or whether the work is simply “disguised commercial advertisement.”
What does this mean for your novel?
Essentially, we’re no closer to a hard-and-fast rule than we were before — however, the best thing for you to do is to ask yourself why you’re using a celebrity’s name in the first place. If you’re showing the celebrity to be endorsing something, that’s obviously a no-no. If your use is relatively incidental — if your work would be able to stand on its own without the celebrity — you’re probably fine.
However, to avoid a lawsuit, it’s important that you run your novel by an intellectual property lawyer to make sure you’ve thought of everything — similar past court cases and state legislation alike. Unfortunately, in many cases, the decision is going to be up to the courts.