My usual disclaimer, none of this is meant to be legal advice. Do not take it as such. If you want specific legal advice, hire a lawyer. I am a lawyer. I am not your lawyer.
Okay, now for different disclaimers 🙂
We all know the disclaimer, “Any resemblance to actual persons, living or dead, is completely coincidental.”
Yeah, that one. It’s in books for a reason. Does putting this at the beginning of a book keep you from being sued?
Of course not!
There are no magic words that block a lawsuit!
Anyone can sue you at any time for anything. The only questions are how long it’ll take you and how much it’ll cost you to get it tossed out or defend it.
So when can you use someone in your fiction? We all base characters on real people and everybody knows it. Well, first of all, if you want to use someone’s name, ask them!
I know, concept.
But those are usually friends, fans and beta readers who ask to be tuckerized or redshirted. They volunteer their names and find it flattering to be in there as some minor character, or even a major one, and it’s even fun for them to be killed off in the books.
How about when you want to get back at a bad reviewer or a family member or an ex?
Thennnnnn we might have an issue.
The famous example in my circle is Joe Buckley. He was some guy who gave (I think, but don’t quote me on which author it was because I can’t quite remember) John Ringo a bad review, so Ringo started killing him off in inventive ways in different books, then other authors in the circle picked it up, until killing off Joe Buckley was a trope in mil scifi and even urban fantasy in our crowd.
No clue how he got to do that besides asking the guy who left him a bad review if he could kill him off. I’m honestly betting that’s how it started. And the reviewer was probably flattered to be asked, even though he’d left a bad review.
So, let’s say you ask and get a hell no (which would happen in most situations where you’re doing it to get back at a personal connection) and you still want to use them, as in, their name.
I know. I know. I am right there with ya. I have an ex I want to write in by name and kill off sooooo bad, and I can’t because he would sue my ass. No really, he’s a lawyer, that’s pretty much our default opening gambit 🙂
And you’re probably thinking if it’s fiction, then isn’t it fine, because everyone knows it’s not real? Nope. Because that’s still invading their privacy. And if it’s fiction based on real life events, or a non-fiction book, and everything you’re saying is true, you’re probably thinking it’s fine because it’s not defamation if it’s true. Again, that’s true, it’s not defamation, but it’s still invasion of privacy. Which is a cause of action someone can sue you for.
So what can you do? Well, there’s an article here http://helensedwick.com/how-to-use-real-people-in-your-writing/ that I looked up that has some guidance. Basically, if you base it on someone who hasn’t given permission, do not use their name, and make sure the character is different enough that they couldn’t say it was them for sure in court. I mean, technically everyone could point to a character somewhere and say there are similarities, so again, they could always sue, but they probably wouldn’t win if it wasn’t so blatantly obviously them.
But again, won’t stop them from suing your ass.
Especially if they are lawyers 🙂
I have characters based on the guy I refer to as my evil ex (Whom I tried to be friends with recently… sorry, segue here, do not try to be friends with the person you ever referred to as your evil ex! If you called them that, it’s because there are unresolved issues that will rear their ugly heads and you will then have to deal with, which sucks! Okay, segue over.) but they are different enough that someone who knew us both might guess there’s some basis on him, but then again, those characters could fit thousands of other people too, and are different enough that someone who knew us both wouldn’t even think of him unless I told them I based a character on him. And even then, it’s just fiction, meaning they don’t know what in the book is based on real events, if anything, and what’s completely made up.
So, read the article, and then think it through before you use your ex/bad reviewer/family member who stole your barbie when you were five in your book. Don’t use their names without permission, and make the character different enough that someone who reads the book and knows them won’t automatically put two and two together.