So you want to make a reference to a real person in your writing. What’s the etiquette? What’s the law?
The last thing anyone wants is to pour their heart and soul into a masterpiece, only to be slapped with a cease and desist letter. Now, I’m not a legal expert by any stretch of the imagination, but I can offer some general guidance for writers. I’ll focus on writing such as novels and memoirs in this article, as works like biographies, commentaries, or criticisms are a different beast entirely.
It’s almost always a good idea to use altered or entirely invented names for characters based on real people. This is true whether you want to write a character based on a celebrity or your eccentric former coworker.
If you’re writing about a public figure or celebrity, using a real name is risky business for two big reasons. First, you can be sued for “misappropriating” a name and likeness. That means you’ve effectively taken a person’s name or recognizable image and applied it to something without their consent. Famous people who make their living off of branding their name and image will likely not take kindly to being included in a novel they didn’t okay—and make no profit from. Second, the threat of defamation. What this boils down to is that you don’t want to attach any inflammatory or untrue behaviors, traits, acts, etc. to a real person with a reputation to protect.
Use your common sense and respect when deciding whether you want to use a real person in your story. Saying your teenage protagonist went to a Taylor Swift concert is most likely fine. Saying the protagonist met Taylor Swift backstage, then drove around Reno punching old ladies and mooning nuns with her probably won’t go over as well. But if you want to take the safest road possible (and I would advise it, as Taylor seems nice, but she does have a lot of money for excellent lawyers), it’s just as effective to use an altered name (Taylor Brisk has a nice ring to it) or a completely invented name accompanied by a simple explanation that the character is an “America’s sweetheart” style pop star. A caveat: if you use a different name but still make it very clear through descriptions, illustrations, or even quoted speech, you can still be held liable legally for using a public figure’s likeness without authorization.
When it comes to characters based on “regular” people in your life, they won’t be able to claim you used their reputation and image for profit, but you still don’t want to risk a defamation lawsuit. In these cases though, changing a name will usually be more than enough. You can absolutely include characters based on people you’ve known, as long as the actual person is not identified. This, again, should be guided by your common sense. If you want to write about your ex-girlfriend Trisha, you probably can include a “Trista” in your memoir, but real-life Trisha is not going to be pleased. You’re much less likely to step on any toes with something unrelated, like “Maria.” That said, writer Anne Lamott raises the very fair point that, “You own everything that happened to you. Tell your stories. If people wanted you to write warmly about them, they should have behaved better.” So don’t let the reality of a character’s inspiration or source scare you away from writing what you feel needs to be written.
Bottom line? The legal aspects are tricky. You might be able to get away with it. But personally and professionally, I would always advise a writer to protect themselves and their work. Change the names. Include a disclaimer. Stay out of court. Don’t incur the wrath of your exes, or Taylor Swift.
* * *
Jacki has been editing professionally since completing her study of the English language at Virginia Commonwealth University in 2012. She has been an Inkwell Book Co. editor since 2013. From memoirs to fiction to fantasy, she can’t resist a good story, and can usually be found at her rural Virginia home with her nose in a book and a cat in her lap.
