Defamation, Right of Publicity, and Celebrities Portrayed in Fiction

One question I keep getting asked – and I’m increasingly unsure of the answer – is why we don’t see more litigation or threats of litigation when popular fiction authors utilize fictional versions of real-life celebrities in their books. One example that springs to mind is “Old School” by Tobias Wolff in which the author creates a central role in the narrative for fictional versions of writers including Robert Frost, Ayn Rand and Ernest Hemingway. But I’m sure there are plenty of other examples. Even Michael Cunningham’s Pulitzer-Prize winning novel “The Hours” presents a fictional version of Virginia Woolf. There must be cases in which the subjects of these books – or their estates – could claim in either defamation or right of publicity and yet there is little litigation that seems to arise. When I read these books, I tend to look carefully at the front matter to see if it contains disclaimers or if permissions have been sought to use likenesses of real people, and often nothing is actually printed in the book to this effect, although that doesn’t mean the lawyers didn’t negotiate something up front. Does anyone know if that’s what usually happens or if publishing houses have their lawyers vet the content prior to publication to ensure that there aren’t grounds for any legal action either because the substance of the book isn’t defamatory or because the subject in question would not be entitled to bring a cause of action on jurisdictional or other grounds?

5 thoughts on “Defamation, Right of Publicity, and Celebrities Portrayed in Fiction

  1. Here is article I just read from NYT on the issue: http://www.nytimes.com/2013/06/02/sunday-review/between-the-first-amendment-and-right-of-publicity.html?_r=0

    “Most lawyers and scholars say there is little question that journalists, biographers, novelists and filmmakers can say what they like about famous people if it is truthful and does not invade their privacy. That is why Mark Zuckerberg, the founder of Facebook, was not entitled to a cut of the profits of the film “The Social Network” or to prevent its makers from depicting his rise.”

    I am assuming that to allow suit in these instances would violate First Amendment rights and that is why you don’t see more suits but more of a guess on my part.

  2. there is a first amendment right to editorialize about someone’s life, so the right of publicity must give way if there is any transformative element brought to the expressive work by the author. that would occur almost any time a long-form movie or book occurs.

  3. The First Amendment provides a certain shield In the US, perhaps, but certainly not elsewhere. Reading the post, my mind turned immediately to Stephen Spender’s successful defamation lawsuit against David Leavitt in the early 1990s concerning the author’s appropriation of autobiographical details from Spender’s life in the novel “While England Sleeps.”

  4. And also, while the First Amendment provides a shield, it would be by way of defense if an action was actually brought. It wouldn’t forestall the action in the first place if the plaintiff otherwise had standing etc. As publishers are presumably somewhat risk averse given their stance on clearing copyright permissions and being careful with trademarks generally speaking, why would they not be equally careful re defamation and right of publicity claims pre-publication? Or are they that careful and I’m missing something?

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