It can be tempting to use movies, places, real people, celebrities, and more to build an engaging and believable world for your readers. But, are real-world details, such as a celebrity, acceptable?
When using real people in their writing, writers are at risk of misappropriation of publicity rights, invasion of privacy, and defamation. Despite this, fiction writers use real people as inspiration for their characters all the time.
Nonfiction and memoir writers use real names in their books. Does this mean that all these writers risk a lawsuit?
Is it at all safe to write about someone without their permission? When is it appropriate vs an invasion of privacy? Read on to find out the answers to these questions and so much more!
- Can You Write a Book About Someone Without Their Permission?
- Can You Use Celebrities as Book Characters?
- Can You Name a Character After a Celebrity?
- My Book Contains a Real Person, Can I Use Their Name?
- What is an Invasion of Privacy Claims?
- What Is Considered As Defamation or Libel?
- Top Tips To Employ To Minimize Your Legal Risks When Writing About Real People
Can You Write a Book About Someone Without Their Permission?
As a rule of thumb, always remember that it’s highly unlikely for you to run into privacy or defamation issues if you portray someone in a neutral or positive light.
So, you are free to mention someone without their permission in the acknowledgments or dedication sections of your book. In non-fiction books, you can refer to actual people and events as long as you have the references available to prove the information included was factual.
This last bit is vital as defamation and privacy risks will need to be assessed whenever you opt to write anything about identifiable, living people that could seriously damage their reputation.
Now, I’m not suggesting you paint your mother-in-law like a queen bee if she’s not, but before you go painting her as a drug dealer I would be sure that all your facts and evidence of such are accurate and apparent.
Can You Use Celebrities as Book Characters?
Some stories may benefit greatly from featuring a real celebrity. The star might have been in the restaurant during the murder in a detective story you're writing.
It would be great to have your main character interview them. To do this, however, you will need to seek their written permission.
This permission can be attained from either the celebrity themselves or an appropriate representative. You will need to reach out to their agent or staff to get their approval. This will remain the case even if just quoting them very briefly for a few facts.
If ever you are in doubt regarding the use of a celebrity in your work, be sure to consult a lawyer for advice before publication.
Can You Name a Character After a Celebrity?
The celebrity's name may be okay, albeit without their image. There is still some risk in using the full name of a celebrity with negative characteristics, as the real person may feel offended.
A good option is to use part of a name. That way, the reader gets the back story from the parent while the character is very distinct from the real-world person.
My Book Contains a Real Person, Can I Use Their Name?
In light of the potential pitfalls, perhaps it would be better to stay away from having real people, celebrity or otherwise, be a part of your book.
Real people can be used as characters in your book, but you'll have very similar problems as you would with a famous person. You might also be sued for defamation if you portray someone negatively. Since they are not well known and therefore not newsworthy, they may not have as much effect on your book, but they can still take legal action nonetheless.
You may want to consider using a person's attributes under a new name. It's less dangerous, but you still have to be careful with it. You also may not be able to stay out of trouble by just changing their name if the person you describe is very distinctive.
You’ll have the same risk if someone familiar with the person or worse the actual person can read your description and identify who it is.
The best thing to do is use specific people as inspiration but not use all the same facts about them. Change a few key details about the character to give him or her life and depth, and to make them very different from the person they are based on.
What is an Invasion of Privacy Claims?
Privacy invasion is the unjustified invasion of another's personal life without their consent. However, invasion of privacy does not constitute a tort by itself; rather it is composed of four distinct causes of action.
State laws vary on whether or not these causes of action are recognized, as well as what elements have to be proven, so you should check with your state's laws or consult a lawyer before filing a lawsuit.
Invasion of privacy may be caused by any of the following four types of torts:
- The use of a person's name or likeness
- False Light
- Intrusion Upon Seclusion
- Disclosing private information
Note: It is possible to be sued for violating someone’s right to privacy even if you publish the truth. An invasion of privacy suit can be brought against you whenever you divulge private details about a living individual that are:
- Offensive to ordinary sensibilities, or
- Not of overriding public interest.
What Is Considered As Defamation or Libel?
If a statement damages the reputation of an individual or an organization, it is defamatory.
Defamatory material can only be published if it falls within one of the recognized legal defenses (see below). The publication (in any form: audio, blogs, books, videos, fiction, dramas, etc.) is deemed libelous and you may have to pay substantial damages.
The same applies if you publish a defamatory or libelous statement made by someone else (on a blog, for example, or in a book), even if you quote the statement accurately.
Individuals and organizations are rightly protected against inaccurate, unwarranted, or untruthful attacks on a person’s reputation by the law of libel.
When Is A Person Considered Libeled?
A publication libels a person if the content:
- Discredits the person in their profession, business, or trade
- Subjects them to hatred, contempt, or ridicule
- Has caused them to be avoided or shunned
- Society generally views them negatively as a result
Nevertheless, a writer is sometimes forced to address issues of corruption, injustice, and other behaviors. It is helpful to understand libel law and the most common defamation defenses when doing so.
Bear in mind, however, that politicians, journalists, police, lawyers, celebrities, big businesses, and those whose reputation is important to their livelihood are more likely to file libel suits.
Are There Any Limitations To Writing About Real People Based On My Profession?
It depends largely on what you do for a living. An attorney, for example, is not allowed to use confidential information about a client, even if the name is changed and the identity is masked.
The same applies to a doctor, accountant, or therapist.
You have a duty not to divulge private information if you are a partner, trustee, or have a fiduciary relationship with a third party or a minor. If your job required you to sign a confidentiality/nondisclosure agreement, you will also not be able to discuss anything or person you encounter while on duty.
Your settlement agreement probably contains nondisclosure and non-disparagement clauses if you were a party to a dispute settled out of court (including a divorce). If you disclose too much, you may be able to unravel the agreement.
Also, during your employment, you may gain valuable insight into manufacturing details, marketing plans, and formulas. Disclosing these trade secrets could result in you losing your job and facing a lawsuit, even if they are true.
Top Tips To Employ To Minimize Your Legal Risks When Writing About Real People
The number of lawsuits against authors is relatively low, considering the thousands of books published each year. Proving claims is challenging, but not impossible. To reduce the risk of becoming one of the unlikely few, authors should consider the following:
- Whenever possible, use publicly-available information, such as court documents and news reports. You will find plenty of valuable information in court filings.
- Think about the importance of private information for your story. Disclosure of confidential information maliciously or gratuitously can face punishment by judges and juries who are moralistic.
- Memory is subjective, and it tends to change over time. Conduct research and interview others to verify and expand your memory. Maintain records to corroborate your claims. Be realistic when speculating. Don't state your opinions as facts, but as opinions.
- If you can, get a written release and consent.
- Take advantage of parody and satire. It is not a statement of fact if what you describe is impossible to be true.
- Identifying features should be masked if your fictional character is based on a living person. You can make physical changes and change their life histories so they cannot be recognized. For more villainous characters, you should make more changes. A company can also be used as an evil character, like a polluter.
- It is best not to say things like "do not do business with XYZ company." Instead, tell the story of your experience. Readers will understand.
- Use labels such as corrupt, pervert, cheat, or crook instead of calling someone criminal, sexually deviant, or diseased. Keep your response to verifiable facts and your emotional, personal feelings. As the old saying goes, show, not tell. Leave it up to your readers to make their own conclusions.