Each time I give my presentation, Legal Issues For Authors, I get a question about using a real person in a book. Usually, it’s Elvis Presley or James Dean, but occasionally it is a historical figure like Eleanor Roosevelt or George Washington. Often it’s the writer’s Aunt Harriett or Uncle Harry.
The short answer is that real people can be used in new writing in limited ways:
The safest way to use any of the material in question is to obtain permission, in writing, from the person or person’s holding the rights of the real person.
There is no way to predict exactly how a court would rule if an author finds himself or herself in court for using another’s name or fame. A good rule of thumb is the consider if you are making money or getting people interested in your work due to someone else’s celebrity. If so, use is prohibited.
Right of Publicity:
In the case of Elvis Presley (and other famous persons), the right of publicity is the right to control the commercial use of his name, image, voice and story. It comes from the right of privacy as opposed to copyright. Everyone has a right of publicity, and can sue if someone uses their persona without permission. In some states, the right of publicity dies with the person, in others, it lasts for 100 years after death. That said, estates can inherit certain rights of a famous person and those rights may change the limit for commercial use.
Commercial use is limited to advertising, merchandising, impersonations, wrongfully implying endorsements, etc.
First Amendment Rights:
First Amendment rights may allow the use of someone’s name, image or life story as part of a novel without consent or compensation, but each use must be carefully evaluated and the risk assessment considered. The use may make it through the legal gauntlet unless the work is strictly advertising. Many court cases have been litigated on this topic and authors should have their individual fact situation evaluated by an attorney to determine the risk and whether the writer wants to take that risk. Courts consider whether the use of someone’s name, image, or life story is reasonably related to the subject matter, and has the user added new, transformative elements to the work. If so, the work could be protected speech if the story is reasonably related to the topic and of public interest.
Parody is considered protected speech under the First Amendment. As with fiction and non-fiction, the use of someone’s name, image, song, etc. should be related to the topic and a matter of public interest and should clearly be “making fun”.
In non-fiction, the courts also consider whether the subject matter is of public interest Public interest is so broadly defined it covers hard news as well as gossip about the famous. If the information is not truthful, then defamation may come in (see related blogs on defamation and slander).