Dead People as Characters

[Atlantis]

Are writers allowed to include real life people who are now dead as characters in their books? The reason why I'm asking is because of two reasons. I am planning a seven book series and in one of those books the main character is a descandant of a Japanese Samauri warrior who really existed, who was apart of the Shimazu Clan. Another book features Hilter as one of the main characters. My mother seems to think I can't include real life people who are now dead as characters in my books without posting a message at the front of the book that acknowledges them in some way, is this true?

I could probably change the name of Samauri warrior and make him fictional but as for Hilter, I'm really set on having him as a character, as daunting as it will be to get into his head. The basic plot line for him is that from a young age the Sin of Fear has been coming to him invisable and whispering things in his ears that over time has caused his feelings of mistrust towards Jews to ignite into a hatred bordering on madness. The Seven Sins are basically using him as a puppet to wage war. The reason I choose the sin of fear to torment him is like the saying from star wars goes "Fear leads to anger, anger leads to hate, and so on..." The whole series is urban fantasy that spans from the year 1800 in London to the year 2000 in Russia.

[Cathy C]

Actually, even putting in a disclaimer might not be enough. There have been a number of successful lawsuits brought about by families of deceased famous persons against writers who used their likeness. See, the problem is that you're USING that celebrity status of the person to your advantage---it will sell more books. My attorney had this to say about the matter when I asked a similar question (this isn't legal advice about YOUR situation, BTW, so take it with a grain of salt. It's just what I learned about my question.)


Turning to your second idea, which would be to use real people but in fictional circumstances, the analysis is a little bit different and your actions are probably a little more risky. There would be no privacy claim per se because you would not be depicting private events of that person. Defamation probably would not be an issue if the person was already deceased.. The infringement analysis is the same as above, you need to make sure that anything you create is an original work. However, the “name and likeness” issues would still arise because one could still make the same claim that you are profiting off that person’s name and likeness to sell your book. You could temper this by putting in a disclaimer, but there would still be a risk because the party might claim that the average reader would not know that this was fiction and might believe that the events actually happened, thus disparaging the person in question or the value of their commercial estate.
So, be very cautious about such things. In our case, we decided not to take the risk because the books were already contracted to go on the shelf--so the liability was real. Naturally, I suspect your hope is that yours will also wind up in the bookstore, so caution is your best friend. :)

[JeanneTGC]

"The Alienist", by Caleb Carr, featured Teddy Roosevelt in a supporting role. I don't think anyone sued Carr over this. I've read numerous short stories that dealt with Hitler as a character and again, I don't believe those writers ran into trouble.

Public domain comes into it somewhere -- and those bringing a suit would have to show damages, defamation of character or something. Or else how could people write unauthorized biographies and get away with it? Look at the number of books about Princess Diana alone -- the majority of them are not approved by the Royal Family, and yet, they're out there.

Last but not least, are there any relatives of Hitler's lying about waiting to sue someone for writing about how he was the most evil man of the 20th century? If not, who would bring about a suit against you for using Hitler as a character?

I'm not a lawyer, just some things to think about and probably research.

[amber_grosjean]

It does sound risky to me. You could probably use someone as an example but using them as a character would be difficult. If it were me, I would get permission from the family first and make sure that was included with the disclaimer. Or you could have Hitler in your mind, change his name and what he looks like. Hitler could just be the inspiration for the character, giving you a whole new person and making your imagination make him real. Talk to a lawyer who has knowledge over these things. It would cost some (don't know how much) but it would save a lot if someone does sue. Always cover your butt.

Amber

[Nymtoc]

Well, if they've been dead long enough there shouldn't be a problem. Cleopatra comes to mind.

More recently, in Ragtime (1975), E.L. Doctorow inserted Harry Houdini, J.P. Morgan, Stanford White, Henry Ford, Emma Goldman, Booker T. Washington, Sigmund Freud, Carl Jung, Emiliano Zapata and other real people into his narrative. Houdini interacts repeatedly with fictional characters in that book.

I haven't heard of any of the famous people's families suing.

I suppose it's possible there were legal negotiations behind the scenes. I do know of a writer who included several living celebrities in a short story. He contacted all those celebrities and obtained their permission before the story was published in a major magazine.

[Evaine]

The Stress of Her Regard, by Tim Powers, used Byron, Keats and Shelley as main characters, with a vampire plot based around their real biographies - impressively researched.

On TV, Dr Who has met Leonardo da Vinci, HG Wells, Dickens, Queen Victoria, Shakespeare.... There was even a suggestion that Queen Victoria was a werewolf.

[larocca]

Captain Kirk met Abraham Lincoln, and I saw Ben Franklin on Bewitched. I suppose it depends on what you say about the dead people.

"I see dead people."

Oh, shut up, little boy.

Pandemonium used Byron and Coleridge, and probably the rest of the gang, as characters. The Hours used Virginia Woolf, was it? And the list goes on and on.

Now dead people as authors, that would be cool.

[southernwriter]

I researched this when I wrote my novel, and at that time, what I found was that in the U.S. a person loses their right to privacy upon their death (http://query.nytimes.com/gst/fullpage.html?res=9C03EFDE123AF935A15752C1A9679C8B 63) (look how much has been written about Marilyn Monroe and Princess Diana, for instance). You may want to look at this, (http://news.com.com/Taking+passwords+to+the+grave/2100-1025_3-6118314.html) too. Here's the law in Canada (http://www.qp.gov.bc.ca/statreg/stat/P/96373_01.htm).

[scarletpeaches]

The Interpretation of Murder (http://www.amazon.co.uk/Interpretation-Murder-Jed-Rubenfeld/dp/0755331427/ref=sr_1_1/026-1730546-1077248?ie=UTF8&s=books&qid=1189256020&sr=1-1) by Jed Rubenfeld used Freud and Jung as main characters. Mind you, I've had smear tests that were more entertaining than reading that book.

[Jamesaritchie]

There are so many novels that use dead people as characters that I can't even guesstimate how many there are. Thousands, at the very least. Probably tens of thousands. Everyone from Elvis to you name it has been used. There is no law against it, and the lawsuits are almost never about using the dead person, but in libeling the living relatives.

Go to any bookstore, and you can find dozens of novels that have dead people as characters, and often the dead are pretty recently deceased.

Just take a look at how many recent novels have used Elvis as a character.

[scarletpeaches]

The Odd Thomas series, for one.

[James D. Macdonald]

Dead people can't be libeled.

Cathy, could you cite some successful lawsuits involving the fictional use of dead persons?

(I used Al Capone, Hymie Weiss, Bugs Moran, and any number of other Prohibition-era gangsters as characters in one novel, without asking anyone's permission.)

[ishtar'sgate]

Boy am I ever glad the dead characters in my WIP have been in the ground for thousands of years!
Linnea

[Jack_Roberts]

I need to find this thread when I write the later books. There are a lot of dead people I want my vampire children to meet in the last 300 years.

[Oberon]

Remember "Meeting of the Minds" on TV? Steve Allen's roundtable of famous people? Freud, Einstein, Attila the Hun (I think he was one of the many)?

[shakeysix]

harry k. thaw and stanford white were real people. wonder how that was handled. don't have a copy of the book here at home.--s6

[Cathy C]

Dead people can't be libeled.

Cathy, could you cite some successful lawsuits involving the fictional use of dead persons?

(I used Al Capone, Hymie Weiss, Bugs Moran, and any number of other Prohibition-era gangsters as characters in one novel, without asking anyone's permission.)

I'll do some research from what the attorney sent me and post it up here. :)