Can anyone offer any insight into the legalities, technicalities and niceties of including real - living, not historical - people in works of fiction? I'm in Australia, so my right to write more-or-less what I please about politicians is constitutionally protected, but what about anyone else? If I want to write a fictional account of the adventures of someone who has the same name, job and physical description as a real-life (non-politician) public figure, how do I proceed?
December 19th, 2004, 10:48 PM
Hate to point it out, but our constitution here in Australia provides no such protection. It does not incorporate a bill of rights or anything particularly morally or ethically based, as in America, but is largely a division of powers between the federal and state governments (things like banking, defence, taxes, shipping). So if you wrote whatever you wanted about a politician you can still be done for slander/defamation, depending on the medium you use.
So the issues for you are:
- can you just change the name and occupation? If not, why not?
- are you going to say something potentially damaging about that person? Could it be interpreted as damaging? Would it detrimentally affect the way that other people see that person?
- If you are going to say something damaging and it is not true about a living person, the most simple question is- Why would you do that? Why would you want to hurt someone who has done no wrong?
- If you are going to say something damaging and it IS true, then it is not slander/defamation (to my knowledge). But you should be very certain that you can *prove* that what you write/say is true.
Keep in mind that something like a humorous take-off of John Howard would be safe because it wouldn't really damage his reputation.
We have fairly tough defamation/slander laws here, so tread carefully. If this is important to you and/or you could make money out of what you say and/or it will be publicly accessible, get legal advice. Even legal advice won't necessarily save you - witness the Bob Ellis/ Peter Costello thing about five years ago - Ellis's book had been cleared by the publishing company's legal team but it still got them into hot water. Be careful and good luck!
December 19th, 2004, 10:57 PM
For starters, real people are boring. Alright that is a bit of an exagerration, but think about where we learn most of the things we learn about normal everyday people. In normal, everday (read: boring) conversations... Not because they are forced to act in some dangerous situation.
Getting to know "real characters" can be dull... I usually take traits from certain people I know and turn them into a character.
If you are copying a person well, you are at their mercy. Get their permission but I don't see why you can't just change the name and then claim that any similarities to any persons living or dead are purely coincidental... I don't really think the name of the person is so important that you would risk a lawsuit.
December 20th, 2004, 12:18 PM
Personally I think the largest danger here is offending someone. I know several people who use their friends as at least a framework for their characters - some who use actual names. I find more often than not, people are excited to read about themselves in a story, regardless of the role they play.
Libel and slander comes in, I believe, when you make a comment about someone claiming that it's true, without any evidence to support the argument. Assuming you are writing fiction - and you present it as such - I think someone would have a difficult time proving defamation of character. This of course depends on exactly what you write.
For example I read a book this summer that was set in Cuba. One of the secondary characters was Fidel Castro. The events of the story were completely fictional, but the storyline required the author to reference the leader of the country. Similarly if you are writing fiction that involves world politics, I think just about all characters who would come into play due their jobs and the positions they hold, are fair game.
It may help to include a disclaimer at the beginning or end of the story - explaining why you chose to include a real person.
You might get yourself in hot water if you chose to write about, say, and ex-girlfriend or boyfriend. However I think the social reprecussions would far outweigh the chances of getting sued. Sometimes it helps to get through issues in your own life through writing fiction. In such cases, especially if you have no intentions of publishing the material, I don't think you'll have any problems.
December 20th, 2004, 04:32 PM
Thankyou for the replies. I did say non-politician public figures in fiction, not in false reporting, so while the question of defamation is of course very relevant, it's not what I was asking about. For want of a better word, let's say "fan-fic" (yuck!). What is the process by which one creates authorized fan-fiction, is it simply a matter of something like this?:-
Dear Ms Couric,
I am currently writing "Katie Couric - TV Babe/Super-Spy", a fictional account of how you spend your weekends. Please find enclosed two sample chapters and a nice waiver form for you to sign.
Can anyone point to any examples where a living person is the central character, not just a bit part, in a work of fiction? The only one that I can recall was way back when Charles and Di were married, a novel appeared that had Princess Di kidnapped by the IRA and coming over all super-heroinely. That was definitely unauthorized.
December 20th, 2004, 07:40 PM
Authors have been sued simply because a fictional story too closely matched real events - usually by whoever the writer pegged for the villian. Or the estate.
Think about how you're going to show this real person to the world and really concider how that person would feel about how you've viewed them.
The publisher will probably want to run your story in front of a lawyer to make sure they (which may not include you) can't be sued. If the story's very controversial, you might want to get a lawyer of your own to read it.
December 21st, 2004, 12:47 AM
Public figures, for the most part, are fair game. Even writing a fictional story you can be sued for libel (I am sure Larry Flynt intended his sketch about that politician to be entirely fictional... ;)). The point isn't whether what you say is true or not, it's the reprecussions that person may face as a result.
The only way I can think of to legally get by this (and this applies to US law) is to claim that you believed it to be true because of your sources. That's how the tabloids do it. If you can't prove they knowingly printed false information, you can't do anything about it... Try proving that someone knew they were wrong (and that is the story of why most celebrities don't ever bother fighting it).
Overall, I would say just get the person's permission OR create a likeness of the person (similar to the person in many ways, but still different, and like I said before, coincidentally similar to any persons living or dead).