Basing fictional characters on real people
From Legal Minimum:
Here’s three steps to consider if you want to take a real person and use them as the basis for a character in your fictional universe:
Step 1: Think of what needs to remain and what can change. If you are going to use an exact clone of a real person, you need to get their permission to do this through a name, image, and likeness release (I’ll write about these in a future post). But you can often adapt a real person into a fictional character if you do it right.
This shouldn’t be surprising. There are very few truly impossible-to-replicate character descriptions you can write outside of a sci-fi or fantasy setting. So nearly all of us could find many of our personality traits mirrored in someone’s fictional characters. If just having a character who resembles a real person was enough to cost you a lawsuit then every author would be breaking the law.
. . . .
Step 2: Make sure that you don’t just make negative changes. You need to make sure that you don’t just make changes that, if you said them about a real person, would be libel.
In Muzikowski v. Paramount Pictures, Paramount made a film based on the story told by Muzikowski in a book he wrote about his experiences coaching baseball in the inner city. It wasn’t presented as an adaptation of his book, just based upon it. Muzikowski sued, claiming that he was defamed by the character in the movie that was based upon him.
The court disagreed. Looking at the movie-Muzikowski and comparing him to the real person, the court found all sorts of non-defamatory distinctions between the two characters. For example the character in the movie had children of his own, while Muzikowski didn’t. The court held that distinctions like these meant that the adaptation was permissible, because the adaptation wouldn’t cast Muzikowski in a negative light.
. . . .
The legal test isn’t whether the person on whom you’ve based the character would recognize themselves, or whether their friends would. It’s whether a reasonable person hearing the descriptions of each group of people would think the characters are based on the real people. That’s a big difference and so the court held that the portrayal of the Tamkins in the CSI episode wasn’t libel.
Link to the rest at Legal Minimum
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This post goes right to the heart of a question I have not been able to answer.
Years ago, a stranger told me a wonderful anecdote about how he succeeded in business. I have repeated this anecdote (which is very specific and recognizable) in my current manuscript. The character does not resemble this person in any other way; indeed I know little about this person, having met him only once.
So far, so good. Until I read a profile of this individual in the business section of a newspaper, repeating the same highly specific anecdote. It seems possible that a reasonable person may recognize the story and conclude that my character is based on this individual.
Thoughts?
can you change the anecdote in subtle ways too, but still retain the meaning you want?
Or get permission?
Good article, good topic. Helpful.
The anecdote is highly specific and would lose its meaning (in my opinion) if altered. The man is a venture capitalist who made his first fortune completely by accident.
I may try to seek permission though I suspect I’ll have to jump several hurdles to achieve access.
My characters are an amalgamation of folks I meet or see on TV, and always vague enough so that most folks wouldn’t know who’s in that mixture.
And don’t forget about the “small penis” rule when dealing with male characters. Whenever you are afraid your character’s likeness may get you sued by the person on whom it is based, simply say that character has a small penis.
Then, no one will come forward and say, “HEY! THAT’S ME!”
Unless they come forward and sue for libel. *pokerface*
Hahahahhahaahah!
Good heavens. I have enough imaginary people already living in my head without resorting to disguising real ones for characters. Although it’s somewhat alarming how many friends beg me to kill them off in books (or more often, to kill off a bad boss or ex).
Ditto. There’s a cast of thousands living in my imagination.
I’m writing a memoir that’s filled with real people. I don’t name the city; I changed people’s names. Is that enough? I’m not altering the truth. If I did, it wouldn’t be my memoir.
I would think that since it’s a memoir (a true memory) that it WOULD contain real names and places.
I can’t use real names. Someone would end up in prison and it wouldn’t be me. I’m also writing it under a pen name.
I’ve read several non-fiction books that are factual, yet certain characters are composites and names are changed. This information is disclosed in the preface or author’s note.
I once began writing a fast-paced story and my brother’s name kept on popping into the part of the computer-savvy, cool brother in story. So, I called my brother at work (his name is Gabe) and asked if I could use his name in a story. He said for me to e-mail him the story so far and he’d let me know. I did and he called me back saying he sounded really cool! And yes! Of course I could – seeing he was a good guy…
So, it’s very cool to have real people in your stories and books. I’ve also got another person’s name in a book of mine as a way to thank him for fixing my computer when it got a computer virus. I asked what I could do to repay him and he said nothing… I said I needed a good name – his name was Paul – and if he’d like I’d put his first name into a book of mine as a thank you; and when he got in and read it, he’d know it was him. He asked my brother about and my brother told him it meant I respected him very highly if I did that… which I did!… so that’s another person I’ve put into my books.
I’ve yet to put somebody’s name into a book and make them a bad guy…
This is a problem faced by most historical fiction authors. Some prefer to make up names for historical personages and “hide” their real identity through thinly veiled description. Others just plunge ahead and include the historical individuals. With my own work, I try to stay close to the contemporary view of the people (gleaned through letters, memoirs, and newspaper accounts) rather than the hind-sight of history which can change drastically depending on new research or another historian’s agenda. This also holds true for the historical events themselves.
Of course, this gets a bit dicier as one moves closer to the current era. Then you have to be far more careful when drawing in personalities or having historical figures involved directly in the action.
The general rule under common law is that a dead person has no cause of action for libel. A few states have exceptions, but damages are not easy to prove.
Peace by unto you PG for this item. Wow. Danke. Yow. And more onomatopoeia! I only hope that the sins I’ve already committed to print won’t haunt me or, worse, lead me to court. While I’ve pretty much drawn an obvious equation for my readers (called bait and switch) between my character and the actual living imprisoned version, they’re nothing alike as people, although there is a little section or two drawn from a most vivid moment in this fellows life, tragic, too.