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Graeme

Incorporating real people into fiction

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Public figures are, I believe, available for use in stories...within reason. After all, they're portrayed in satires on TV all the time, and that's possible under 'fair use' laws. If Tom Clancy had had Prince Charles as the head of a secret terrorist organisation, I suspect he would've been sued. However, the character was portrayed in a way that was compatible with his public persona, and hence could be used. What I'm not sure of is where the limits are, and how they vary depending on the person.

What I mean by that last comment is that fair use seems to vary depending on how much of a celebrity a person is, and what they're involved with. I believe that there are celebrities who do not allow their image to be used without their permission (though it's possible that that restriction is only for commercial ventures). If this falls under 'fair use' rules, then it may be that non-commercial use is treated different to commercial use.

There's so much I don't know, which is why the topic makes me nervous and unsure as to what I should or shouldn't do. Still thinking....

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'Fair use' differs in the U.S. to Australian permitted usage. I remember seeing that the fair use rules were currently under investigation in the Aussie parliament, but I think they are mainly concerned with increasing usage for video and film; Literature being accepted previously. But don't quote me.

I don't actually see a problem with making the Prince of Wales a terrorist leader in a fictional story as no one would believe it. In other words such a characterisation would be regarded as a literary fiction for purely entertaining purposes re: the fictional story. Additionally, it would be wise to not actually name the Prince as being the current Prince Charles.

I remember the furore over the book by Grace Metalious, Peyton Place: from Wiki:

Another controversial character was school principal Tomas Makris, who bore the name and physical description of a Laconia resident and co-worker of Metalious' schoolteacher husband. In editions available in the United Kingdom, this character's name was Michael Kyros. Makris sued for libel, and settled out-of-court for $60,000. It later was revealed that Metalious had forged Makris' name on a release form, and the character was renamed Michael Rossi for the paperback, film version, television adaptation and her 1959 novel, Return to Peyton Place. Although the sequel sold well, its success did not approach that of the original.

Some citizens of the Lakes Region took umbrage at the notoriety that was quickly thrust upon the area, and they directed their resentment at Metalious. Vicious rumors began circulating about the author, some true (Metalious had an affair) and some preposterous (she bought groceries while wearing a fur coat and nothing underneath). Metalious later attempted to profit on her success when she invested in a motel on Lake Winnipesaukee that was re-christened the Peyton Place Motel, but it was an unsuccessful venture.[4]
Despite the controversy, Metalious insisted that Peyton Place was a work of fiction. When John Michael Hayes, the screenwriter for the film adaptation, asked her if the novel was her autobiography, Metalious told him to repeat the question and then spilled her drink on him. Metalious wrote very accurately about New Englanders and many in her hometown still remember the scandal caused by the book. She was almost barred from being buried in the church cemetery, but the church and townsfolk in Gilmanton finally relented.
So Graeme, you might want to consider if your story will cause a stir against your planned burial arrangements. (Just Joking) :confused: :smile:
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There was somewhat graphic sex in Peyton Place and it included scandalous scenes of incest; this was pretty astounding for a book published in the fifties. I was a teenager when I read it and had never seen anything like it. The book was a sensation because of that and all the other sex it contained.

I doubt your AFL story will be portraying graphic incest and will probably have a less overriding sexual texture to it. But I suppose there is something to take from the Peyton Place adventure. You might infer that the more famous and scandalous a book, the more notoriety a story generates, the more money it makes, the more likely it is that lawsuits will occur.

C

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Here's the "Knight Life" comic from today's San Francisco Chronicle that uses three celebrities. I don't want to copy the strip (it's copyrighted), but you can read it here: http://www.gocomics.com/theknightlife#.U0l1yPgnKUk.

Colin :icon_geek:

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Here's the "Knight Life" comic from today's San Francisco Chronicle that uses three celebrities. I don't want to copy the strip (it's copyrighted), but you can read it here: http://www.gocomics.com/theknightlife#.U0l1yPgnKUk.

Colin :icon_geek:

And from a strictly legalistic basis there is probably enough grounds in it for an action for defamation in the UK courts, the fact that I have been able to view it on my computer means it has been published in the UK so action could be taken in the UK, which has the harshest defamation laws in the Western World and awards the highest damages, which is why London is now the Libel Capital of the world, even the Russians come here to sue each other.

In practice any of the three celebrates named would be stupid to take an action over this as it would probably cost them more than it would be worth and would almost certainly give them a lot of bad publicity.

By all means put real people into your fiction but understand the risks you are taking and try to keep them to a minimum.

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Here is a link to an article that people might find useful:

http://www.copylaw.org/p/libel-in-fiction.html

However, remember that if the item is published in the UK then the First Amendment defense is not available to you. Also, under international treaties, civil awards of damages in most countries are enforceable in most other countries. So if a court in England awards damages the plaintiff can seek recovery of those damages outside the UK.

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You used the word 'published', Nigel. I wonder if the same holds true for internet pieces that originate in countries outside England? I'd think such would be very hard to litigate. An author in Botswana, say, writes a parody involving a Brit for posting on his own blog and the internet makes it available everywhere. The Brit gets a hair up his ass and sues when the article is obviously tongue-in-cheek and much funnier than slanderous. I wonder just what would become of such a suit.

I also know this is legal and occurs regularly with celebrities here being used in this manner. Hard to see where one country could get away with saying there isn't free speech there, so they can sue and not allow that as a defense.

C

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Nolo Press has a 516 page book on how to use, and when to not use, copyrighted materials. It's Getting Permission, subtitled "How to License & Clear Copyrighted Materials Online & Off". Go to www.nolo.com. It is written by a lawyer who specializes in intellectual property law.

Colin :icon_geek:

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Here's the "Knight Life" comic from today's San Francisco Chronicle that uses three celebrities. I don't want to copy the strip (it's copyrighted), but you can read it here: http://www.gocomics.com/theknightlife#.U0l1yPgnKUk.

I think that's covered under the rules of satire, which did go all the way to the Supreme Court (the famous Mad Magazine case on "Superduper Man"). Mad won that one, on the basis that no reader would ever mistake a comical Superduperman for the DC Comics superhero. I think Disney has also lost some lawsuits on people clearly making fun of Mickey Mouse, but calling him a slightly different name.

But a novel is not necessarily satire, so that could get into dangerous territory. My take (and the above links seem to agree) that if you keep the use of a famous person very limited and don't have them speak more than a few sentences, and keep it non-controversial, nobody's going to care. If you have a scene where Donald Trump has graphic sex with a llama, then that could be a problem. If you called him Tonald Dump, you might be safe. But then again, maybe not.

My partner the attorney says, "free legal advice is worth what you pay for it."

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You used the word 'published', Nigel. I wonder if the same holds true for internet pieces that originate in countries outside England? I'd think such would be very hard to litigate. An author in Botswana, say, writes a parody involving a Brit for posting on his own blog and the internet makes it available everywhere. The Brit gets a hair up his ass and sues when the article is obviously tongue-in-cheek and much funnier than slanderous. I wonder just what would become of such a suit.

I also know this is legal and occurs regularly with celebrities here being used in this manner. Hard to see where one country could get away with saying there isn't free speech there, so they can sue and not allow that as a defense.

C

There are two issues here, the first is the definition of published. In the early 1990s, there were a series of legal cases both in Europe and in the USA which turned on the definition of published with respect to material on the internet. These were mostly concerned with indecent material of under aged parties being made available to download. The outcome of this was a series of judgements that held that material on the internet was deemed to be published on the device on which it is viewed. Therefore if you have a website based in Russia and it is viewed by an American in Ohio, then it is published in Ohio. There have been a couple of extraditions from the Europe to the USA based specifically on this point. There have also been a number of successful liable actions, mostly in the UK, which have made use of this point. There was one in 2005 or 2006 where a Russian sued an American publisher over an article that was published on the web. The publisher argued that the case could not be heard in the High Court in London as it had been published in America and the magazine was not available outside of the USA and Canada. The High Court held that as it was available online and it had been shown by the plaintiff that it had been read online in the UK it had been published in the UK so they could hear the case. At that point the publishers settled out of court for an undisclosed sum but the rumor is that it was over £500K plus costs.

There is no right in English or most European law to Freedom of Speech, that is a specific USA legal concept, therefore it cannot be used as a defense. What we do have in Europe, via the European Convention of Fundamental and Human Rights is the freedom to impart information. In some ways that is more restrictive than the right in the USA in other ways it is far more powerful. As a result you cannot use the First Amendment as a defense against an action in defamation in the English courts.In actual fact the one time I am aware of when a US publisher tried to use the First Amendment as part of their defense in a case in the UK the court took their submission as an admission that they had no other grounds of defense and awarded the case against them.

Here there is a major difference between US law and UK law. In the US, as I understand it, you have to show that a piece is defamatory and that defamation has occurred. In the UK all the plaintiff has to show is that the piece has the potential to be defamatory it is then up to the defense to prove that it is not or that either no defamation has taken place or that they have grounds for the defamation. This has the effect that in the UK even if something is true it can still be deemed to be defamatory.

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This is horribly scary, and I can't understand why lawsuits in England aren't rife. It should be so easy to find offense against most anything Americans write. Any Brit could claim to be defamed, and it's then up to the American to prove he wasn't, and proving that has to be almost impossible.

I know that there are many, many boy band stories, what do they call them, fan fic or something like that, and some involve British band members, I'd guess. I don't read that genre but know it exists. You'd think for every instance of this there'd be a lawsuit as it would be so easy to win.

Anyone can claim they've been defamed by anything. Proving they weren't would be a disaster.

C

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Oscar Wilde was advised to not sue John Douglas, Marquess of Queensberry (1844-1900) over the card that the Marquess had left for him at Wilde's club in an unsealed envelope. The card read,

"To Oscar Wilde posing as a somdomite."

Yes, he misspelt sodomite. Anyway Wilde did not take the advice and sued the Marquess for deformation. The Marquess used the defence that he had published the statement in the public interest and that it was true. This left Wilde in the impossible position of having to prove that he was not a sodomite. He lost the case and the Crown then had Wilde arrested and tried (twice) for gross indecency with young men who just happened to turn state's evidence. He was sentenced to two years hard labour.

So yes Cole, as in this most famous case, your assertion is correct that, "Anyone can claim they've been defamed by anything." But it was the defence in trying to prove that he was innocent that resulted in disaster for Wilde. It is difficult, though not impossible , to prove that you are innocent.

Some claim of course, that the Oscar Wilde case grandfathered the whole movement for Gay liberation, and I would agree that the articles and movies made about the trials, certainly influenced the discussions that led to the decriminalising of homosexual acts in the UK, but at a terrible cost.

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I know that there are many, many boy band stories, what do they call them, fan fic or something like that, and some involve British band members, I'd guess. I don't read that genre but know it exists. You'd think for every instance of this there'd be a lawsuit as it would be so easy to win.

J.K. Rowling was once asked about the gay fan fiction about her Harry Potter characters, and she kind of shrugged and said, "what are you going to do?" She acknowledged that if it was just sitting on a website, it'd be hard to go after the thousands and thousands of people writing amateur fiction based on her work. But Rowling famously did sue a website owner who published the contents of his website as a printed book, and she won big-time on that. She's adamant on maintaining print rights of anything that specifically derives from her work. And yet... you can go on Amazon and see dozens of fan indexes, criticisms, and analyses of the world of Harry Potter in print form. The line between fair use and copyright infringement is blurry, especially with fictional characters.

I think with real-world celebrities, it's more cut and dry, but I think making them a key character in anybody's story is a bad idea and not a good precedent. Although... I'm currently writing a historical novel that will have some extremely famous (dead) celebrities in it. My take is, after 150 years, there's nothing they can do. Plus, I'm not having the historical characters do anything they didn't do for real in their time.

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I sometimes use real locations in my stories. For example, Hillcrest High School; Las Lomas High School; Diablo Valley College; The University of California, Berkeley; etc. However, when I give street names as the locations where my characters live I always use made-up names. Just to be safe.

Colin :icon_geek:

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This is horribly scary, and I can't understand why lawsuits in England aren't rife. It should be so easy to find offense against most anything Americans write. Any Brit could claim to be defamed, and it's then up to the American to prove he wasn't, and proving that has to be almost impossible.

Actually at the moment actions for defamation before the English courts are rife and it is a major problem. Recently the rules about status with regard to defamation have changed to make it more difficult for non-UK residents to take action here. London though is still the defamation capital of the world, partially because the grounds for defamation are more strictly drawn here and also because we award the highest level of damages. I heard one legal reporter on the radio saying that 70% of all the major defamation cases in the world were taking place in London but only 5% of those cases involved a party who was resident in the UK.

The one thing that stops most people in England taking action is the high level of costs, there is no legal aid for defamation and you can't get legal expenses insurance to cover it either. If you walk into a solicitors asking to start an action they will ask you for a upfront fee of at least £100K, after that the sky's the limit. Recently a couple of Russians managed to build up a legal cost of over two million pounds each.

You might like to look at this article http://www.theguardian.com/commentisfree/libertycentral/2010/mar/29/london-libel-capital-freedom-of-speech and http://thobbs.wordpress.com/2010/10/17/law-blogs-london-is-the-libel-capital-of-the-world/

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I sometimes use real locations in my stories. For example, Hillcrest High School; Las Lomas High School; Diablo Valley College; The University of California, Berkeley; etc. However, when I give street names as the locations where my characters live I always use made-up names. Just to be safe.

One clever thing they do in a lot of American network TV shows is they name a real town and a real street, only they give an address number that doesn't exist. I once worked on a police show where they said "4500 Ventura Blvd.," and we all laughed because we knew there was no such address. (I think it starts above "9000.") So it's kinda real, only it's not precisely real. It's rare I give an exact address in a novel, but I might give intersections; I think it's a writers' choice as to whether they want to pick two streets who really intersect or make it up. In LA, if you were to say, "oh, it's near the intersection of La Cienega and Ventura Boulevard," that would be hilarious since they're about 10 miles apart and never really meet. In San Francisco, you could say "meet me on the corner of Market Street and Mission," and that would be equally wacky since they parallel. Or you could combine one real street with a fake street. "It's on Market Street right where it meets Hilliard Avenue"... and there is no such place, but at least that wouldn't knock readers out of their chairs.

I also know of situations where a screenwriter picked a peculiar name out of a phone book (like "Schnedelooper"), but if the show is set in (say) Indianapolis, they'll make sure nobody has that specific name in the city. If it's a very common name, like "Phil Smith," there's bound to be 40 of them in that city so it's doubtful anybody could sue.

I like the idea of putting as much real stuff as I can in a story. I kind of wince when I read online fiction where the setting is so vague, we don't know if it's East coast, West coast, the South, the midwest, or wherever. Coming from a journalistic side, I want more specifics, so I can relate to the exact time, exact date, and exact place of where the characters and story are. It doesn't necessarily have to be a real town -- they could say, "it's a suburban neighborhood about half an hour south of Chicago," or "it's a sleepy little town on the West coast of Florida" -- but at least I have a sense of where it is. All of that makes it much more real to me. And if they turn on the TV and see Brian Williams on NBC Nightly News, or they watch Anderson Cooper on CNN, I feel like the story is happening in the same world I live in. If it's "Joe Blow on World Cable News," I'm immediately reminded that the story is fake. But... maybe that's just me.

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There is an immediate problem with someone who is still living.. Unless, just passing through, just by being alive, the person will contradict or possibly be offended by your tale.

Unless your story is implausible from beginning to end, it's not a good idea.

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I made sure that everything I wrote was consistent with public positions that the characters in question have made. I also made sure that, with the exception of people who gave me consent to appear in the story, I always had them off camera. That is, the actions/statements of the real person is reported by others in the story and they don't appear directly.

It was tricky, because I had to be very conservative with anything I wrote, but I think I succeeded. Now I just need to do the same for the third book in the series :smile:

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