Monday, September 17, 2012

Three basic questions about using real people as inspirations for your characters

Authors, filmmakers, and other creatives have always built their stories from their own experiences. Being inspired by real events and real people is almost impossible to avoid. But sometimes people go a step further and build their creations directly from reality, including real people or real events that can be traced back to real people. And, when done right, this can lead to increased interest translating into increased sales. As a wise gnome once said, Step 3 is Profit!

But doing it wrong can lead to real problems.

Although there's more than just four things to consider when using real people in your creations, the questions I've gotten have revolved around three big issues.

Q1: Do I need permission to make a fictional character out of a real person?
Not necessarily, but it's a good idea. Here's why.

It's actually surprisingly difficult to get in trouble when you make a fictional character out of a real person. Let's say you decide you want to make me the villain of your next book Right away there are two issues to consider:
  1. The test isn't whether my friends or I would think you've based the character on me. The test is whether an average person who doesn't know me personally but becomes aware that I exist would think that you've based the character on me.
  2. Even if the person becomes aware that you've based the character on me, the next issue is whether you've portrayed me in a manner that, if you said it about me directly, would be libel. If you describe me accurately but call me a child molester, that would probably be bad. But if you take my general description and add a bunch of traits, some positive and some not, then even if it's obvious that I was the basis for the character you would probably still be allowed to use him.
So it's entirely possible that you could create a character based upon your hated neighbor and even if they totally know it there may be nothing they can do. If they're that hateful, they may even like it.

That said, let's get practical for a minute. Lawyers for publishers and studios aren't crazy and they don't want the risk of a lawsuit. Yes, you would probably win. But defending lawsuits is expensive. If a publisher thinks it's only going to make $50K off your project, it's not going to want to spend $40K of that on lawyers' fees. That's why they usually make you say in the contract that you have the rights to use any made-from-reality content you've put in there. Best just to do it.

Q2: How do I get permission?
The best way to get permission is by having the person sign a release. Since lawyers like words we tend to call them a "name, image, and likeness release" but just "release" will do.

The best type of release is where you actually give the person a copy of the manuscript, film, etc., have them review it, and then get them to say they've looked at it and they are fine with it. But that's not the only way to do it. You might be able to get people to sign a release saying that they approve whatever you might do, if they are your friends or if they are crazy. Or you might be able to give them a general description of the character and get their approval that way.

My suggestion: if you're working through a publisher or a studio, ask them for a release form. Very hard for them to complain after the fact that the release wasn't good enough if it's from the paper they gave you.

Q3: What happens if I don't get permission?
Like I said in response to Q1, maybe nothing. After all, the person may never find out, or may not mind if they do. But probably best not to rely on that in a world where someone sued the makers of Super Size Me over a 3-4 second passage of the film where she just passed by onscreen.

If they find out before publication or airing of your content and they're really interested in suing, the person will likely try to get an injunction against distributing the content. These can go either way but usually the court will give a temporary one to last through trial: if the person's rights would be violated by distributing the content then there's no way to fix that once the content is distributed. And at that point your book or show is held up for years in litigation with you not making any money and your publisher or studio spending tons of it to try to get out of this mess.

And that's not likely to make you very popular.


Thanks for commenting. Posts and comments aren't legal advice; requests for legal advice in the comment probably won't get answered. Sorry to have to do this but someone someday is going to make me glad I did...