Is the use of celebrity likeness for your character a problem?

Wasn't sure where to post this - it could just as easily fit into the agents' board but I wanted to throw this out there to everyone else first. Please feel free to move it if necessary.

What happens if your lead character is based very strongly around a well-known celebrity? Let's say his or her name has been changed as well as other background details and characteristics. However, the character is inspired by the celebrity, and therefore the physical description of him/her, certain personality traits, habits, likes and dislikes and particular historical events from his/her life have been woven into the plot in a way that the celebrity in question, as well as anyone familiar with him/her, would probably recognise the celebrity instantly. Let's say it's similar in the same way that, for example, the film "Primary Colors" was a thinly veiled allusion to President Clinton and his administration which no-one could fail to miss. However, unlike Primary Colors, the story is more of a homage to the celebrity rather than a criticism of any sort (eg it makes the celebrity out to be like a daring "superhero" involved in all kinds of intrepid adventures).

What kind of legal problems would be associated with this? Could the celebrity, or his/her representatives sue on the basis of some kind of infringement of trademark, personal or privacy rights, misappropriation of identity, or anything else related? And what kind of disclaimers/ defences could be brought up?

Also, would these issues make any potential publishers hesitant to publish these sorts of stories based around the elements mentioned above? Or would agents be hesitant to represent you for fear of being sued by the actual celebrity, even if the names and other details have been changed, and lots of things fictionalised so that it's clear that it's not suggesting that the actual celebrity is involved in such things, but that it is all a work of fiction?

It is an issue which I am very curious about at the moment and which I am sure would interest others here. Obviously, I would prefer not to rewrite my main character(s) into someone I no longer recognise nor care for if I had the choice.

Anyone here know?

Thanks

Celia Cyanide said:

If you want an extreme example, look up Guide by Dennis Cooper. It contains rape and murder fantasies about Alex James from Blur--er, I mean Alex Johns from Smear. Their hit song is "We're So High" in the book, instead of "She's So High." In real life, the singer's name is Damon Albarn. In the book, it's just Damon. They didn't give him a last name.

I know for a fact that Alex James has read the book, knows it is about him, and is bothered by it. He was supposed to interview Cooper for i-D magazine when it came out, but after he read the book, he said he didn't want to meet him.

Personally, I question the ethics of publishing something like this. But, despite my fascination with JT Leroy, I can't stand Dennis Cooper's writing. The point is, if he can get away with that, you should be able to get away with what you described.

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Thanks for the response. But in the example you've given, Alex James could see it as defamatory and could negatively affect people's perception of him, because it could portray him as a murderer and rapist. But what if the book was instead the plot of the movie "Die Hard" (let's say that wasn't a film but an original book being written now), but instead of Bruce Willis you have Alex James (named Alex Johns here) as the man caught up in the events against his will and forced to take matters into his own hands? So Alex James ends up some kind of action hero. Now that would obviously not depict him in a negative light, even if, in the story, he had to kill some villains to save others. It would, in fact, elevate him to "superhero" status.

It would clearly be fiction, since the Die-Hard-like events have never actually happened to him, but readers might be able to recognise him instantly. Would that sort of scenario be problematic for either Alex James or for agents/publishers?

Zolah said:

So long as the references you make to this character are not defamatory, and you are not trying to profit by using that celebrities name or trademark, then you should be in the clear. A while ago there was a spoof comedy programme on the BBC called 'Jeffrey Archer - The Truth' (Jeffrey Archer being a notorious and much reviled ex-politician here in the UK). This did something very similar to what you've described, reviewing the events of the man's life as if he were a romantic hero, and they actually used his name! If the BBC did it, you can be pretty sure that it was legal.

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Not sure what you mean by "so long as... you are not trying to profit...". If one is writing/ has written a novel inspired by a celebrity (eg as in the "Die Hard" example above but with the names changed etc) then surely the very fact that you're writing it with the hope of publication must mean you're trying to profit? Isn't that precisely what all writers hope to do when selling their novel?

I thought that was my original question (with regard to commercial use), so I'm not really sure what you're getting at. I wouldn't have an issue if I was simply writing it for my own personal leisure as I would probably have some sort of defence against trademark/ other intellectual property infringements if it were simply done for my own private work. Perhaps you could explain/ clarify?

Zolah said:

Are you planning to promote this book using this celebrity's name, thereby making profit from them? Are you going to go to interviews and say, 'Well, o f course the story is really about Celebrity X so it should be a must for his fans'? If so, you might end up in trouble (though not necessarily). Otherwise, probably not, so long as your use of this person as a character does not damage their reputation.

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I'm not planning to promote the book using the celebrity's real name. But anyone reading the book would instantly recognise the celebrity from the physical description, job occupation, personality etc.

It's like, for example, if I wrote a story about some English footballer (soccer player to those in the US) who had a range of unusual hairstyles, was considered a style icon, had a bit of a squeaky voice, was married to a pop star wife, was adored by many female fans etc. Perhaps this footballer's name is John Smith. Now let's say this English footballer got himself into some international intrigue and had to save the President of the United States while on tour and fight off a horde of villains. And let's say this story is so popular that it spawns several sequels and turns this "John Smith" character into some cinematic action hero (so it doesn't damage his reputation). Anyone who knows would instantly recognise this footballer as David Beckham because of all the attributes listed and his background, even though his name would never be mentioned at any time, either in the book itself or in any promotional material (or if Beckham is mentioned, it's never by name but only by reference - eg "that England captain who was also a style icon").

Would that sort of thing be problematic or infringing on some image likeness/ trademark?

Maryn said:

Is there any reason not to take the high road and keep the inspiration to yourself?

Consider that Anne Rice's erotica was based on her imagination of the young Rutger Hauer in various situations. She had a great many erotica books in print before this was revealed in public, and there's reason to believe her when she says she did not intend to reveal it, precisely because she knew it would make the actor uncomfortable. The books were solid and would have sold even if the character were entirely her creation.

You know it's really homage to David Spade (for the sake of fun examples), but you've renamed him Donald Hartz, changed his appearance somewhat, made his sense of humor subtly different, and sent him on a different career path within the entertainment world. Donald can still resemble David enough--to you--for you to maintain interest in him.

How does it improve your work or its marketability to mention David Spade by name? If you were to do that, would you not be using him in a way nobody would like being used? Might an agent not anticipate at least the possibility of legal problems?

If I were in your position, I'd write my David Spade book, disguising him enough, and keep it to myself.

Maryn, who had fun with the silly example

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Not sure what you mean by "keep it to myself." Do you mean keep the source of the inspiration to myself but get it published, or write the book for myself and never have it published (in which case it would probably seem to me like a real waste of time spending say, 18 months of one's life doing all the relevant research for the plot and other details and spending the same amount of time one would on a book intended for publication, only to satisfy one's private "fantasy" and keep it hidden). If you mean the latter, then I don't think I would even bother writing the thing in the first place as life is too short for that sort of thing.

Perhaps you could clarify?

I wouldn't, in your above example, mention David Spade by name. But no-one would fail to know that it is him, even though he's always referred to as Donald Hartz.

Thanks for the clarification. But what if David Spade were, in real life, a famous Croatian actor (the reason I pick something like Croatian is because it probably stands out in the public's mind more than something like English) and suppose he were also the an Oscar-winning actor.

Now what if I wanted to write a story about an Oscar-winning Croatian actor (and I wanted it Croatian as opposed to any other nationality) because Croatia featured into the plot in an integral way, and perhaps so did the requirement of his acting skills (he might have to impersonate someone). Now, no matter how much I try to disguise David Spade (different name, appearance etc), everyone who knows this famous Oscar-winning, Croatian actor would immediately think of him, even if you were to give him glasses and a rubber nose like you would've done with Clooney. It wouldn't be so much that those who are looking would see him and those who aren't would not. In this case, I would think that everyone would immediately recognise David Spade, or at least a David Spade type, no doubt about it.

Secondly, given that everyone would naturally recognise our imaginary David Spade, the question becomes: should I even try to disguise his appearance that much? Everyone knows it's him anyway. Sure, I'll change his name and certain other attributes, but I'm not fooling anyone by pretending that there isn't at least some sort of homage to him.

What would you (and others) think about that sort of scenario?

And is there some sort of right to freedom of expression I could invoke as a defence? Otherwise wouldn't the curbing of one's creative expression (even in using a celebrity as a template) mean that writers would be so limited by what they can actually write?

icerose said:

I just don't understand why you don't make up your own original character, I mean you are already going through all that work anyhow.

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Well, the character might be based on a celebrity but the experiences would be different. I guess the rationale behind using a celebrity as a template is to present a sort of imaginary "what if?" scenario. So, in the above example, it would be: what if Oscar-winning, Croatian actor Donald Hertz (the renamed David Spade) were to find himself in some action/adventure plot involving Croatia and needed to use his acting skills (and possible connections) to stay alive and thwart some villains? And what possible problems could arise by virtue of the fact that this Donald Hertz is a known celebrity in the story?

Yes, I could invent an entirely original character, but it might not have the same "what if" value, and it might not, for me at least, have the same sense of fun and adventure if I, for example, am a huge fan of the real-life actor.

Well as far as hacking a celebrity profile goes, what if truth kept following fiction? What if the following happened?

Let's say 18 months ago, Croatian actor David Spade was just emerging on the scene. He wasn't very well known at the time, and hadn't won an Oscar yet. Now suppose I saw him in a movie and decided that he might make a good template for a character, renamed Donald Hertz? I decide to make him an Oscar winner and give him certain other attributes and get him involved in some sort of plot?

Now suppose, within those 18 months from conception to the time I finish my novel, David Spade just happens to go and win an Oscar (damn him!) and is thrust into the public spotlight? And suppose he coincidentally happens to do similar things in real life to my character, Donald Hertz. Maybe he stops short of actually getting involved in a fictional plot like in my novel, but he does many things which could almost seem, if you didn't know the actual chronology, that I merely copied his life. And suppose that the world affairs going on in the past 18 months also take a turn of events that follow my external plot in which fictional Donald Hertz gets caught up. It's almost as if Spade and others have gained a sneak peek at my manuscript and decided to follow suit.

Now, I know this sounds like a vastly hypothetical situation, but it's actually not too far different at all from what has actually happened with my own fictional character. Yes, my novel as it now stands seems ripped off from that celebrity's life, but I know I came up with these things first and didn't copy, and I don't want to have to rewrite every few weeks everytime something new in the life of David Spade occurs that follows fiction. So what does one do other than proceeding with the manuscript as originally planned? I certainly don't want to shelve it, because, aside from the fact that someone like my character actually exists in real life, it could still be a good story in itself.

As far as Air Force One goes, what if, at the time it was being written (or even filmed) Bill Clinton himself got into some struggle on AF1 with a bunch of terrorists and actually managed to foil them? Now, by virtue of the fact that he was the President, even if he is completely different to Harrison Ford, comparisons would still be drawn because they did something very similar.