Michael J. McDonagh

An established writer who recently went to work becoming an author, trying valiantly to make someone give a damn and chronicling the process.

Archive for the tag “right of publicity”

Putting Real People in Your Made-Up World Part Three: The Right of Publicity from Abe to Beyonce

Personality rights are complex as hell. If you are reading this within a week of me posting it, then this blog post will provide an overgeneralized summary of some really complex stuff. Overgeneralized to the point that, beyond giving you a broad idea of the current state of affairs, it won’t be good for much. This issue is governed by state laws, so the answer to specific questions will be determined by when and where people died and/or were legally domiciled at the time of death. Even when you know that, the scope and nature of each of the state statutes varies. On top of that, some people like to claim nonexistent personality rights on behalf of dead celebrities, essentially sending demand notices that they have no legal right to send. Any specific decision will have to be based on legal advice regarding the specific person in question.

If you’re reading this more than a week after I wrote it, it’s probably outdated. This is an area of law in the midst of huge changes.

Personality Rights Overview

Personality rights are separate from the “real people” rights discussed in the first two parts of this series. The main issue that arises when using celebrities, live or dead, is the “right of publicity.” Here’s the conundrum:

Last year, Pepsi paid Beyonce $50 million dollars to endorse Pepsi. Apparently, Pepsi can sell hundreds of millions of dollars worth of Pepsi if Beyonce tells people to drink Pepsi. This makes absolutely no fucking sense to me whatsoever, but Pepsi knows a lot more than I do about how to sell Pepsi, so there it is. It’s worth $50,000,000 to have Beyonce say:

“Drink this shit.”

With that number in mind, it’s easy to see why Beyonce probably isn’t going to guest-star in your novel for free. It’s also a safe bet that Pepsi was paying $50 Million bucks for something. That “something” is Beyonce’s right of publicity. Her exclusive right to commercially exploit all of her Beyonceness. Because she’s the Beyoncest. It’s also worth bearing in mind that we are talking about a woman who tried to trademark her daughter’s name, so she’s probably not giving much up for free.

And that seems fair. I mean, she did something to put herself in a position to make ungodly sums of money for busing out a “drink this shit.” I don’t really understand what, but she must have done something. And, as much fun as it may be to have Beyonce and Hillary Clinton teaming up with Lil’ B and Carl Sagan to fight space zombies, it probably shouldn’t be free. Part of what you would expect to be selling that book is the name recognition; i.e., a hint that Beyonce was saying “read this shit.” Unless you have a few million dollars lying around, that isn’t going to happen.

The Legal Stuff:

The right of publicity basically means the right to control the commercial use of an individual’s “name, likeness, or other recognizable aspects of one’s persona.” It gives an individual the exclusive right to license the use of their identity for commercial promotion. The term “right of publicity” is misleading. A more accurate title would be: “a whole bunch of things that nobody has really figured out that mainly mean your ass can be sued for using a famous person in your book. And sometimes a not famous one, too.” But the legal profession seems to have settled on “right of publicity,” so that’s what I’ll call it. Understanding that right would be a legal mobius loop, because you would have to research exactly how each of the fifty states handled the question and, by the time you were done with No. 50, the law in No. 1 would likely have changed. For now, a serviceable (which is to say, broad) definition comes from Cornell University’s Legal Information Institute:

In the United States, the right of publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a right of publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity, and false light. See Restatement (Second) Of Torts §§ 652A – 652I. Under the Restatement’s formulation, the invasion of the right of publicity is most similar to the unauthorized appropriation of one’s name or likeness. See Restatement (Second) of Torts § 652C, comments a & b, illustrations 1 & 2.

In other states, the right of publicity is protected through the law of unfair competition. Actions for the tort of misappropriation or for a wrongful attempt to “pass off” the product as endorsed or produced by the individual help to protect the right of publicity. See Unfair competition.

Nineteen states have some form of “right of publicity” law. On top of that, some federal laws can also be implicated. Some names and other aspects of identity can be trademarked, and if a claim arises that someone’s identity is used to falsely imply endorsement of a product, Section 1125 of the Lanham Act also provides a cause of action and remedies.

As far as the living are concerned, you do not want to have living celebrities (by which I mean even remotely famous people) as characters in your book. Unless other safeharbors apply (and the analysis is not entirely unlike that used for “fair use” generally, but need to be looked at completely separately), just don’t.

Things aren’t much better when it comes to dead celebrities

Unlike claims about defamation, which infringe personal rights, the right of publicity is considered a property right. Among other things, that means it can be sold and, in some cases, transferred on the celebrity’s death. Muhammad Ali’s identity was recently sold for $62 million. There have been a few rounds of contentious litigation about Albert Einstein’s likeness.

Marilyn Monroe has been litigated and it was determined she was a resident of New York when she died, so she’s fair game. If she’d been a resident of California, however, she would not be.

Interestingly, one of the states on the forefront of the right of publicity war is Indiana. Though it’s more famous for growing corn and soybeans than celebrities, Indiana is home to CMG Worldwide, a huge celebrity rights licensing company. CMG owns James Dean, Ingrid Bergman, Jack Kerouac, Duke Ellington, Jesse Owens, and even people like Frank Lloyd Wright, Amelia Earhart and Malcolm X. Enormous sums of money are paid for the right to own and use those dead celebrity names, which means enormous sums of money will be used to defend the right to keep doing it.

How long does the right of publicity last?

As one might surmise from watching Abraham Lincoln Vampire Hunter, it does not last forever. Well, that, and if someone wanted to do a movie about Michael McDonagh Vampire Hunter, I’d probably be cool with that, too. But get my permission first. As to how long, though, the answer is another “depends.” It is not, as some people believe, a set “50 years.”

In states with statutory right of publicity laws, those laws include a term. The term ranges from as few as twenty years in Virginia to a century in GMG’s home state of Indiana. Unsurprisingly, Elvis’ home state of Tennessee, allows the right to continue as long as it is being exploited. As long as there are Elvis impersonators, Elvis will be protected. Showing how much of a moving target this is, California used the copyright law term when it adopted its right of publicity statute, which, at the time, was fifty years from death. When the term of copyright was extended to 1998, California extended its statutory right of publicity as well.

Going back to where we started, the answer to your question will depend on where the person was domiciled at the time of her death. Even then, there are a few companies claiming to have the right to sell Marilyn Monroe’s publicity rights, and they will be happy to send nasty letters claiming that, despite the fact that the lack of those rights has already been determined.

Bottom Line: there are no safe rules of thumb to apply to this question. Celebrity characters will likely fall somewhere on a spectrum between Beyonce and Abraham Lincoln. Where they fall on that spectrum, and if they’re closer to Beyonce than Abe, where they were domiciled when they died will determine the extent of their publicity rights. From there, it is a case-by-case question.

Putting Real People in Your Made-Up World Part One: People from your daily life.

I’ll start with the overly broad question writers often ask.

Question One: Can I use real people in my book?

Short Answer: If you don’t you won’t have a book.

Here’s the longer answer. Every writer who’s ever written has written about a living person she’s met. Even if you are writing a sci-fi epic about a cluster of beings who are made entirely of energy, one of them will probably end up acting an awful lot like your sister. That black hole they’re afraid of will probably use that stupid catchphrase your junior high school gym teacher always threw around, too.

The thing that makes us writers is the ability to look at the world around us and draw a new and interesting story based on it. Some of us may end up drawing spaceships and others vampires, while those of us writing contemporary satire come pretty damn close to just drawing what we see. Historical novelists often strive to draw the most accurate picture they can of something that happened in the past. People writing narrative nonfiction are basically trying to trace the exact lines of an event in a way that tells the story. But, whether you’re writing a MG fantasy about elves or narrative nonfiction about the Romney campaign, you’re going to at least touch on people you either know or have heard of.

Not only can you use real people in your book, you have to. Otherwise there’s no book.

Question Two: Do I need their permission?

Short Answer: No, you need to write better.

The longer answer is that it’s fine if you want to get someone’s permission. You may want to do that for all sorts of reasons. But that’s usually not the best way to go. For one thing, until someone’s read your completed manuscript, he or she will not really know what the portrayal is like. You may even tell that person that the portrayal is flattering (because, let’s face it, you’re not going to find many people who want to be portrayed as the idiotic, misogynistic boss, so that’s not the conversation you’ll be having). But that still doesn’t mean things will go smoothly. Telling the person it’s a nice portrayal presents a few problems.

First, your idea of nice may not be hers. That cute honking noise she makes when she laughs may be something she was relentlessly teased about in fourth grade. Now she’s convinced she doesn’t do that anymore, despite the flocks of geese that land on her yard whenever she’s watching Seinfeld reruns. That quirky habit your writer radar picked up on isn’t just quirky, it was born of a horrible childhood trauma. You just don’t know.

Second, you’re essentially locking yourself into a contract. If someone agrees you can use her in your novel in response to you saying your portrayal is nice, you’re stuck. Suddenly, your character is constrained not just by the obstacles in the story but also by the requirement that the way she handles them be flattering to the person you named her after.

Third, real people suck. Jason Borne did more badass stuff within an hour of waking up than most people do in their entire lives. Do you really think cousin Eldridge is essential to the story? It might be nice to give him a nod, since people with names like Eldridge tend to be computer whizzes and die childless, but that’s what the dedication page is for.

Fourth, it’s not over ‘till it’s over. Having just spent three months rewriting the last 30,000 words of my manuscript from scratch, I have no doubt that I’m speaking the truth when I say: you have no idea how things are going to turn out until you’ve written them. And gotten feedback. And rewritten. And gotten more feedback. And written to editorial order and you’re looking at something that is no longer a manuscript, but is actually a book.

Fifth, fictional real people suck more than real real people. Almost every good hero has her demons, just like interesting villains usually have some misplaced good in them. Interesting characters are almost always conflicted, but your Aunt Sallie does not want to read about how she’s torn between her love for your Uncle Bud and her desire for Javier the pool boy. Uncle Bud sure as hell doesn’t want to read about that, and Javier may have just thrown up in his mouth. The alternative is to turn Aunt Sallie into Aunt Mary Sue, which is to say, a cardboard cutout of a one-dimensional, boring Aunt Sallie who doesn’t want Javier to clean her pipes.

Note that I’m not really talking about law on this post, although the others on the topic go pretty deep into legal questions. There is no bright line between the (statistically unlikely but enormously expensive) legal problems that can stem from using a person in a novel and the (financially free but highly likely and personally costly) family/friend problems that can stem from using a person in a novel.

The bottom line, when it comes to friends and family, is that you need a really good reason to need to include them. And if you’re just writing a novel, there usually isn’t one.

That’s not to say you shouldn’t use their traits. Mine the crap out of those. Those traits are what makes good writing. But mix and match traits and jobs and relationships and appearances and genders so that no character is discernibly a person two cubicles down or whose name you might draw for the family Christmas gift exchange.

Got an axe to grind? Don’t do it. Now you’re substituting personal motives for good storytelling, and your book won’t be as good. Everything we write should be in furtherance of the story. Our traumas, heartbreaks, and hatreds can provide powerful fuel for a good narrative, if we use them to serve it. Setting out with a score to settle is the opposite – your story is now being used to serve your pissy little vendetta. Get over it. Your story matters more than revenge – which will just come across as whiny anyway. Your emotions serve the story, never the other way around.

Question Three: What about names?

Short Answer: A rose by any other name…

You don’t insulate yourself (much) by taking a person who is clearly known and slapping a new name on him. The flipside is, you don’t have much of a problem taking a name from someone you know and slapping it on a character. But you should be doing that for the same reasons characters get other names – it’s the best name for the job.

Case Study: Rochelle Ames

There is a character in Velvet Falls named Rochelle Ames. Her daughter, Susan, introduces her in the narrative by saying, “that bleach-blonde narcissistic bitch is my mother.” She is not a nice person. On the plus side, she’s hot. Her negatives include being slutty, manipulative, narcissistic, a horrible mother, greedy, short-sighted, and adulterous. She also has a drinking problem.

I named her after my Critique Partner.

A couple of things about the real Rochelle. She is not bleach-blonde, she is not narcissistic, and she is not a bitch. Since I’m in trouble if I say she’s “not hot” and probably in even more trouble if I say she is “hot” I’m just skipping that part of the analysis, although I will say she is a beautiful young lady who in no way physically resembles said bleach-blonde bitch. The remaining items on the list are also nonstarters.

But you’ve gotta admit, Rochelle is a killer name for a manipulative blonde seductress. That’s how Rochelle Ames got the name Rochelle. Plus Real Rochelle knows this book better than anyone but me, she is so different from the villain named for her it’s an inside joke, and the name just fits.

What about Ames? That’s where those personality characteristics come into play. Think about it.

. . . . . . Thinking?

Let me ask you this, have you read East of Eden?

If you have, I don’t need to say another word. If you haven’t, you should. But, basically, I knew what the character had to be before I named her, and found the literary character who most consistently matches her (Cathy Ames).

So that’s a pretty good window into the type of things I consider when naming characters. I start with the thing that will serve the story best. Within that, if I can tuck an inside joke and a literary Easter egg, I’m all for it.

But the character herself is 100% fictional. And bears no resemblance to any narcissistic, self-centered, greedy, manipulative women I’ve ever met.

Honest.

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