Question and Answer #7: Can I Write about Real People in Fiction?

by John Aquino on 06/18/13

Answer: In writing classes, we were encouraged to write about what we know. In writing fiction, in trying to make it realistic, we can make characters up from scratch or model them on real people or we may unconsciously be using real people as our models even when we think we are making the characters up from scratch.

The important thing to remember is that the law does not really distinguish between writing that is nonfiction and writing that is fiction. Libel is a published false statement that is defamatory that is of and concerning an individual that causes him or her damage. If an individual claims a character in a novel is based on him and that the portrayal is false, defamatory, of such a nature that people tell him they recognized him as the character, and that the portrayal has caused him damage, even if the name of the character is different from his own, then he can arguably sue for libel.

The problem is some of the elements of libel are such that they make it difficult for an individual to succeed in a libel claim against a novel. This is why individuals –such as the actress Scarlett Johansson--continue to look to other areas of the law.

There is a type of fiction called a “roman a‘ clef,” literally a story with a key, the key being real people and events. A roman a‘ clef is a fiction based on actual events. One type of a roman a clef is a novel set in the past that employs actual people –usually deceased—in fictional situations. In these stories, the novel’s hero meets Mark Twain and Albert Einstein. Legal action is usually not a concern since the dead cannot sue for libel since libel is about damage to an individual’s reputation and that individual cannot sue because he is dead.

Another type of roman a‘ clef is those that could have been memoirs had they been written as nonfiction. Ernest Hemingway wrote Farewell to Arms and the Nick Adams stories in which a fictionalized version of himself encounters fictionalized versions of people he really knew set against a landscape of events that really happened—e.g. World War I. (Toward the end of his life, he wrote a memoir of his experience in Paris in the 1920s called A Moveable Feast that some claim was mostly fiction).

Roman a‘ clefs include the Moon and the Sixpence by W. Somerset Maugham, with a central character based on the painter Paul Gaughin; Queenie, a novel by Michael Korda based on the life of the actress Merle Oberon; White Hunter, Black Heart by Peter Viertel, based on the author’s experience working on the movie The African Queen with director John Huston; the Carpetbaggers by Harold Robbins with a hero based on the tycoon Howard Hughes; Postcards from the Edge by Carrie Fisher, based on the Fisher’s experience with her mother Debbie Reynolds; and the Devil Wears Prada by Lauren Weisberger, with the “devil” character modeled on the magazine editor Anna Wintour.

Of these, Gaughin and Oberon did not sue because by the time the novel came out they were dead. Reynolds did not sue Fisher because she was her mother. Huston accepted Viertel’s portrayal of him in the novel and actually provided a release promising he would not sue when White Hunter, Black Heart was optioned for the movies in 1957, three years after it was published. But a movie was not made until 1990, after Huston died, primarily because the fictionalized portrait of Huston in the book was so negative and Huston was well respected in the movie industry. Wintour actually went to the premiere of the movie version of the Devil Wears Prada and said she enjoyed it because it was obviously satire.

And Wintour’s comment points out one of the problems with suing a novelist for portrayals based on individuals. The portrayal must be “of and concerning” that individual. If the work is a novel, the argument is, it’s obviously not about that individual because it’s about a fictional character. The individual can still sue, and arguably win, but it’s hard. Also, if the individual is a public figure, he or she must prove that the false statements were made with absolute malice, which is either knowledge that they were false or were made with complete disregard as to whether the statements were true or false. If the character is set in a fictional world dealing with fictional people and at least some fictional events, then it’s a difficult task to prove that the author knew the statements were false. Of course, they were false, he may answer, it’s a made-up world, it’s a novel.

Meeting the tough standards for libel has caused some celebrities not to sue for allegedly libelous fictional portrayals. Another reason they may not sue was suggested by Mark Arnot in his article “When Is Fiction Just Fiction: Applying Heightened Threshold tests to Defamation in Fiction,” Fordham Law Review, Vol. 79, Issue 3 (2007). Arnot described what he called was the “small penis rule,” which he acknowledged was really a tactic and not a rule. In 2006, Michael Crowley wrote a negative appraisal of novelist and filmmaker Michael Crichton in the New Republic. In his next novel, Crichton included a character named Mick Crowley who was a pedophile with a very small penis. To sue for libel, arguing that he was not that character, Crowley would have allowed discussion of the actual size of his private part into court. He did not sue. And while this may seem an extreme example, suing for libel does open up discussion of at least certain aspects of an individual’s life in court.

There have been successful suits for libel against films and novels—see Bindrim v. Mitchell, 92 Cal. App. 36 61 (App. 2d Dist. 1979, in which the court refused to let a plaintiff be libeled because the author claimed only to have written fiction)--but not that many.

The difficulties in suing for libel have caused some celebrities to explore other areas of the law such as invasion of privacy and violation of the right of publicity. Often, courts may consider these to be end runs around libel litigation employed because it is difficult to prove libel.

This does not mean a writer should be cavalier and think that putting false statements about a thinly-disguised individual in a novel will be immune from litigation. It will not be. Many of these cases have gone to court and whether the plaintiff won or lost is immaterial compared to the time and expense the defendants wasted. As always, in writing, make sure your facts are correct and your statements are defensible in a court of law.

And also remember that there are also courts in other countries where the laws are different, and in this global media age, one can be sued outside of the United States. The disclaimer that is still employed in most films—“The characters and events portrayed in this film are fictitious and any resemblance between actual people and events is unintended”—was instituted in the mid-1935 after M-G-M lost a libel suit about one of its movies in England. It was announced in early June 2013 that the actress Scarlett Johansson was suing a French publisher in France for use of her name in the novel "The First Thing We Look at," in which a woman believed to be Johansson is revealed after 60 pages to be an imposter. Johansson is reportedly seeking compensation and damages from the "breach and fraudulent use of personal rights." Her publicist is describing it as a landmark case.

Johansson would have difficulty suing for libel because she is not a character in the novel and so it is not “of and concerning” her. The right of publicity in the United States specifically exempts novels, films, and histories. But in other countries, the right of publicity laws can be different.

I had a similar situation with a client who was the focal point of discussions in a novel in which my client was discussed by fictional characters. It was my advice to my client that under U.S. law, there would be difficulty suing for libel, invasion of privacy, or right of publicity. My concern was that the author of the novel would use my client’s photo or image on the cover of the book, which, as a separate artistic expression from the book, could violate my client’s right of publicity. I contacted the publisher about this concern, the publisher responded that they would consider my client's concerns in developing a cover, and the published cover ultimately did not use my client’s image.

Scarlett Johansson is evidently exploring the issues of the use of her name in the text of a novel under French law. The French court will decide whether to take up the case. These types of expression may happen more and more. The ultimate effect of this and other litigations on U.S. law, if any, is still to be explored.

Answer to question below: I'd like to look into more what happened with Patriot Games. Clancy suggested in interviews that he did not ask Charles. When he was questioned by an interviewer if he had heard from Charles about Patriot Games he said, no, that it must have been clear to Prince Charles (and the world) that the character in the book was a fictionalized version of Prince Charles. It's interesting, though, that when they made the movie version they changed the character from Charles to a fictional royal cousin. The filmmakers said that there was concern that showing the kidnapping of the royal family would inspire someone to actually try it. This would suggest, at least to me, some government influence. It reminds me of the 1975 movie Hennessy in which actual footage of Queen Elizabeth was cut into the plot showing an attempt to blow up the royal family. It was very realistic, with the filmmakers using a shot in which the Queen must have looked up when someone dropped something to seemingly show her reaction to the police jumping on the bomber in the cathedral. The government reportedly wanted to have the film withdrawn and finally insisted that the film carry a disclaimer that no member of the royal family participated in the making of the movie. The British are very protective of their royal family.

As to what you can and cannot do, I can only speak generally, of course, but Charles would have difficulty suing for libel in the U.S. because libel is a false statement that is defamatory that is of and about the individual, that is published, and that causes damages based on actual malice for a public figure and negiligence for anyone else. If Charles is portrayed heroically, he would have difficulty with the "defamatory" element. Even if portrayed unheroically he might have problems with the damages, "of and about" and "actual malice" elements, with your publisher arguing that it is clearly fiction. U.S. right of publicity statutes generally have exceptions for fictions. It doesn't mean Charles still couldn't sue (and run up your legal expenses) but the likelihood of his winning would not appear to be high. But laws in other countries are different and since publishing and film are global, one has to be aware of them. That's the reason Scarlett Johansson sued in France, why the British government got involved in the film Hennessy and maybe the film version of Patriot Games.

The proof is in the pudding. If you want to use Prince Charles or anyone living as a character in a novel, you could go ahead, run the finished work by an attorney who can give what you actually express a closer look, and know that it would be likely carefully vetted by your publisher and will make a decision of whether litigation like Scarlett Johansson's is worth the risk.