by J.T. Ellison
Can you use real people, places and events in your fiction work without being sued?
This topic pops up from time to time, and it seems like there are too many people who don’t know the answers, so I thought we could try and sort it out.
The short answer is yes. You can use brand names and trademarked items in your books. You can use real people and real places.
What you can’t do is slander or libel. In other words, any defamation of character isn’t allowed.
In law, defamation (also called calumny, libel, slander, and vilification)
is the communication of a statement that makes a false claim, expressly
stated or implied to be factual, that may give an individual, business,
product, group, government or nation a negative image. Slander refers
to a malicious, false, and defamatory statement or report, while libel
refers to any other form of communication such as written words or
images. Most jurisdictions allow legal actions, civil and/or criminal,
to deter various kinds of defamation and retaliate against groundless
criticism. Related to defamation is public disclosure of private facts
which arises where one person reveals information which is not of
public concern, and the release of which would offend a reasonable
person. "Unlike libel, truth is not a defence for invasion of privacy." **
Okay, so now that we know what we’re dealing with, why does this question keep coming up, again and again? It seems like common sense that you can talk about a real person but not talk badly about them. Right?
Well, maybe not so much. The media gets away with salacious tidbits that are utterly unfounded all the time. Any celebrity will tell you they don’t even look at the tabloids because of all the hurtful, hateful nonsense that makes up the headlines.The reason they get away with it is because these people have chosen to put themselves in the public eye, and somewhere along the way, they abdicated their right to privacy. There is a rule of law called the "Public Figure Doctrine" that applies to celebrities, politicians and the like:
Special rules apply in the case of statements made in the press
concerning public figures, which can be used as a defense. A series of
court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official
(or other legitimate public figure) to win a libel case, the statement
must have been published knowing it to be false or with reckless
disregard to its truth, (also known as actual malice).
Under United States law, libel generally requires five key elements.
The plaintiff must prove that the information was published, the
plaintiff was directly or indirectly identified, the remarks were
defamatory towards the plaintiff’s reputation, the published
information is false, and that the defendant is at fault.
The Associated Press
estimates that 95% of libel cases involving news stories do not arise
from high-profile news stories, but "run of the mill" local stories
like news coverage of local criminal investigations or trials, or
business profiles. Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits. **
So it seems there is a certain amount of caveat emptor (buyer beware) to any person who proceeds into a public life.
Technical jargon aside, how do you, the fiction writer, decide how far to take things?
I again have to draw on my own experience, so bear with me. My character in a homicide lieutenant in the Metro Nashville Police department. It is a real position in a real environment. I set my series in Nashville, and use local landmarks, restaurants and streets to lend both authenticity and recognition to the books. I have real people — in ALL THE PRETTY GIRLS, there is a reporter named Laura McPherson, who worked for Channel 4 (NBC). Real person, who was thrilled to be included. I’ve continued using the actual names of real reporters in newer books for a train of continuity.
I especially like using Nashville’s landmarks and restaurants. We’re such an eclectic town, with a broad and diverse array of social and cultural highlights, so it helps me set the stage. In a city of wild dichotomies, people who subsist on fare from Radius 10 and Sambuca and attend the symphony at the Schermerhorn are vastly different from those who go to Captain Ds or Waffle House and spend their time at the Grand Ole Opry.
I use trademarked items as well. Kleenex. Diet Coke. Starbucks. BMW. Taylor drives a 4Runner. I always use the proper names of cars: it a great, subtle tool for character development. A man who drives a 2008 Prius and a man who drives a 1967 Mustang are going to be very different people, and in one swift brushstroke I’ve explained that. The same for someone who drinks Diet Coke instead of Coke. The same for someone who goes to Starbucks instead of making coffee in their own home.
Is it lazy for me to use these little daily details to flesh out my characters? I don’t think so. Sometimes it’s easier to describe a ’67 Stang instead of a flowery exposition on a muscle car.
But what I can’t do is use a real place, a real person, a trademarked item in any way that isn’t publicly verifiable. I have taken real figures and turned them into fictional ones, to protect the innocent, and myself. But I can’t write a real person into the book and have them do something illegal or out of character.
For example – I can’t take a newscaster, use their real name and give them a virulent coke addiction. I can’t use Diet Coke in the commission of a crime if it is something that isn’t manipulated by the character – meaning I can’t blame Diet Coke. I can use a can of Diet Coke to bash in a head, I can’t say Diet Coke is responsible for driving the villain crazy by removing a portion of the caffeine and thus driving them to commit the crime.
There are strict limitation to using real people and places, yes. But it’s not that hard to get around. In 14, I needed a bar that was next to a strip club. Yes, there’s plenty of places in Nashville that fit the description. But in this particular case, I cheated and moved the geographical location. I’m allowed. It’s creative license. Can I take the Parthenon and put it on Legislative Plaza? No. But I can use fictional locations and manipulate them into real locales.
A fantastic example of an author who has used a real character in her books but fictionalized him is Charlaine Harris’s Bubba. We all know it’s Elvis. He’s not dead, he’s a vampire. But Charlaine never says it’s Elvis. She uses a beautifully subtle, wink, wink, nudge, nudge scenario to poke fun at the cultural phenomenon of people who believe Elvis is still with us.
Which leads us to the dead. Are they sacred? Can you not discuss people who have passed? Of course you can. Another example is Tess Gerritsen’s THE BONE GARDEN. Tess uses Oliver Wendall Holmes, a very real character, to shape a fictional world. She does is brilliantly, and it’s obvious how much effort and research went into Holmes’s character.
So take heart, writers. You can use real people, places and trademarks in your novels.
Do you have a favorite famous place or person who makes an appearance in a book? And does anyone from the legal community care to weigh in here?
Wine of the Week: 2005 Huarpe Lancatay Cabernet Sauvignon
** All citations from Wikipedia
PS: I must take a moment and give a huge, public thank you to everyone who signed my Get Well Card at Bouchercon this past weekend. I can’t tell you how much it meant to receive a card signed by all my favorite people, and I was literally in tears, of joy and thanks, of course, reading all of your inscriptions. I love you all, and am so sorry I missed you. And an especial thanks to Miss Zoë who arranged this incredibly lovely surprise. You are the greatest, babe. XOXO