In the first chapter of his book Ready Player One, Ernest Cline makes reference to no fewer than 26 famous people and real life cultural artifacts from the 1980's. He talks about video games (of course), famous video game designers, and computer systems. He lists bands and quotes lyrics from a song and lines from a popular movie. He includes Hollywood directors, their films, and their stars. He names TV shows and name brand televisions. He taps real magazines, artists, and books and drops them into his novel.
Cline uses trademarks and other peoples' names, creative work, and invented worlds like a mash-up. All in the first few pages. All of it is the creative work of others, or in the case of celebrities, the publicity rights of others.
How You Include Famous People in Fiction Matters
Famous people make appearances throughout the book. The landscape of the 1980's is critical to Cline's story line, it roots the story in reality. As he weaves famous authors, artists, actors, directors, musicians, programmers, and computer hackers of the time into his story, he moves away from reality and creates his own unique world.
Cline's creation of a dystopian future and the virtual reality that envelops it is the first key to why he is able to use those individuals in his story without permission.
The second key to the fair use of those personas is their fact-based inclusion in the story. They pop up almost as if they were in news reels—John Hughes made this film; Warren Robinette planted the first video game Easter egg. He doesn't make them do anything that they didn't actually do in real life. He hasn't fictionalized them.
I'm speculating here, but my guess is that when Cline wrote Ready Player One, he was more concerned with depicting the '80's, its video games, and its culture with historical accuracy than he was about naming celebrities from the era. Those famous people are just part of the fabric of the '80's culture that is used to build his vision of the future. In short, Cline's use of celebrities is artistically relevant to his story.
Writers, artists, or filmakers who want to use famous people in their stories, art, or film often worry about whether they should spend the time crafting a plot line, image, or scene around that person only to be told by an agent, publisher, or producer that they can’t do it that way.
If you are writing a story that takes place today, yesterday, or even in the future, your story line may call for an appearance by a famous person.
It can be done. Knowing how it works can keep you from getting turned down by a publisher or sued by a celebrity, forcing you to rewrite your story or rework your image.
What Makes a Person Famous?
A famous person is someone whose name or image has independent commercial value. That means someone who earns their living, or makes money, because of who they are—like Winona Ryder or Matthew Broderick, both of whom are mentioned in the book. Their names and pictures have value.
If you are in the business of selling t-shirts, for example, you have a better chance of selling more t-shirts with a picture of Matthew Broderick as Ferris Bueller on it than a picture of your Uncle Marty. Matthew Broderick's name and image have value. By selling t-shirts with his image on them and without permission or a license, you have violated Matthew Broderick's right of publicity (and perhaps the copyright to the film Ferris Bueller's Day Off).
The Right of Publicity
The right of publicity is an individual’s right to control and profit from the commercial use of their name, likeness and persona, in other words—their identity. It's usually a state law issue. The closest federal equivalent is a trademark false endorsement claim—the idea that by using a celebrity's persona in your work, you're suggesting that celebrity has endorsed it. Protecting someone from the loss of commercial value resulting from the unauthorized appropriation of their identity for commercial purposes is the principal purpose of this claim.
First Amendment Protection for Creative Work
Ready Player One is not commercial speech. It is an artistic work which does not propose a commercial transaction. It is entitled to the full protection of the First Amendment. The question is whether the rights of publicity of the individuals depicted in the book must yield to the First Amendment rights of the author and publisher of Ready Player One.
The use of the celebrities' names is artistically relevant to the novel. Their presence in the novel sets the tone of the story and anchors it in the '80's. There is no suggestion that these famous folk endorse the book or had any role in its publication.
The mention of the celebrities’ names in the context of accurate, historical information has nothing to do with the commercial promotion or marketing of the book. The reference to the celebrities and their accomplishments is purely informational in order to evoke the cultural setting of the '80's. Cline does not have any of the celebrities play a role in the story (except, see below). He doesn't give them any agency or attribute actions to them which didn't happen.
Those are the two prongs of the test that determine whether a creative work is protected by the First Amendment: (1) the use of the personas is artistically relevant to the creative work; and (2) the use is not misleading as to who endorses the work.
First Amendment Protection Tip
Creative work is entitled to First Amendment protection if: (1) the use of the famous persona is artistically relevant to the work; and (2) the use is not misleading as to the source or content of the work.
In Ready Player One, Ernest Cline has satisfied both prongs of the test. First, the use of all the famous people is artistically relevant to recalling the cultural environment of the '80's where his story finds its roots. Second, by placing the celebrities in accurate, historic context, readers are not misled into thinking that one of those celebrities is endorsing the work.
Except Maybe these Famous People Gave Permission
In Chapter 0020, Cline gives two famous people some agency in his story. It's election time in the OASIS. All the users get to vote for the president and vice-president of the OASIS User Council. Parzival votes to re-elect Cory Doctorow and Wil Wheaton noting, "There were no term limits, and those two geezers had been doing a kick-ass job of protecting user rights for over a decade."
Technically, not historically accurate. At least as far as it concerns the OASIS.
I'm speculating again, but Cline may have gotten permission from those two to include them in the story the way he did. I think they probably got a kick out of playing protectors of the OASIS.
It's the Same Test for Art and Film
I've been discussing the right to use of famous people in literature. First Amendment rights extend equally to visual art and film. In fact, the leading case on the issue dealt with a challenge by Ginger Rogers to a film called "Ginger and Fred." The film is about two fictional Italian cabaret performers, nicknamed “Ginger” and “Fred” after the famous dancing duo. Ginger Rogers sued the producers of the film for various violations, alleging that the title of the film was likely to confuse moviegoers into believing that Rogers sponsored, endorsed or was otherwise affiliated with the film.
Ginger Rogers lost the case. The two-part test of artistic relevance and not misleading as to source or endorsement is called the Rogers test. The Rogers test has been expanded over the years to apply to not just the title of a work, but to include the creative content and visual imagery, as well. It hasn't been adopted everywhere, but it is a good starting point when you're thinking about whether you can include famous people in your fiction, art, or film.
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Thank you so much for the great information here. I am creating a podcast audio drama that takes place at a fictional music venue. In the opening of the first episode, I say, “Artists like ____, ______ and ____ have played there. What is the risk of doing this? I am not necessarily saying the artists have played there, but artists “like them” have. Thank you!
One of my characters has a face of a famous actor. It was literally sewed on his face. I don’t mention if it was an actual face or just a copy. Is this legal?
I’m not sure if this was addressed in the comments, but can I take real people from history and use them in a work of fiction? For example, I’m writing a sci-fi/horror/western which takes place in the 1880s, and I’m using historical people who lived in that era.
I’m going to rephrase your question a bit to, “How long do rights of publicity last?” The answer depends on which state law applies. In New York, rights can be enforced up to 40 years after the death of a celebrity (remember there has to be commercial value in the person’s name/likeness. Not just your average Joe.) In California, rights can last up to 70 years. In Washington state, rights last 75 years. In Indiana and Oklahoma, rights last 100 years. In Tennessee, rights of publicity can last forever as long as they are being exploited. (Thank you, Elvis. Thank you very, very, much.)
The law is this area is still moving and changing, but I think you’re in good shape using historical figures from the 1880’s in your story without fear of infringing their rights. Your work may also be protected by the First Amendment for its creativity and expressiveness.
I’m curious on the matter of simply using a famous name in the title of a short story. The name is relevant in the sense that the individual hosted a famous TV program whose title links into the theme of the story. The closest parallel I can think, though a little lame, would be the notion of perhaps calling a story ‘The Robert Stack’ because the content involves an unsolved mystery. It’s somewhat similar to the way Cockney slang plays with things. So on that basis, am I on safe ground using the name in the title?
Kathryn, first off thank you so much for your forums and articles, they are extremely helpful and appreciated. My question is about using the lens of alternate history in a work fiction. For instance; if a work of fiction is openly framed in the context of alternate history, in that it proposes what might have happened if real historical or famous people had made different decisions resulting in different historical outcomes in the fictional story.
A. What are the general rules that govern the usage of these characters?
B. Are there distinctions between governmental and/or famous entertainers?
C. Are there different allowances for figures who are alive rather than deceased?
Example: In an alternate history work of fiction surrounding the 60’s could I use the following varying types of examples as integral characters in a book or film, freely within fair usage or Rogers frameworks.
•Henry Kissinger, politician relevant to the 60’s historical fabric, deceased.
•Jimi Hendrix, musician relevant to the 60’s historical fabric, deceased.
•Donald Southerland, actor relevant to the 60’s historical fabric, Alive.
I have a sequence in my novel where, about a public restroom, the protagonist bumps into Jean Luc Godard. There is no talking. It is something the main character references to the supporting characters. Can I do this wouthiut any legality issues? I am a writer looking to publish my novel, soothing out any such crinkles. Please help!!!
There’s unlikely to be a right of publicity problem if the only mention of Jean Luc Godard is in one small scene of your novel and you’re not using his name to market or promote your book. But I can’t speak to the risk of a potential defamation or invasion of privacy claim. I mean, what’s going on in that bathroom?
I am writing fiction in which I have lived different past lives. In one of them I would like to have been a jockey by the name of Al Snider who rode Citation to a Kentucky Derby win and then disappeared after an apparent boating accident. His daughter is also deceased at this point. I would like to add what might have happened in the accident — later a message in a bottle came ashore with a note seemingly from him…. What do you think?
I have worked on several movies and had my photo taken with well-known actors with their consent. I would like my book, about to be published, to include a page of these Pictures, all including me, in a chapter called “on becoming a Producer, Director, Screenwriter.” They were my inspiration. What kind of copyright would I need?
Including a page of those photos in the interior of your book will not infringe those celebrities’ rights of publicity. But the copyrights to the images are owned by the photographers. That’s the rub. You might be able to say that by giving you the images, the photographers are giving you an implied license to use them.
I’m making a music video where a painter is working on a canvas and he is thwarted by characters that resemble Dali, Bob Ross, and Warhol. Is this a problem?
I’ve included a hotel that’s on the register of historic places in my novel. Is that allowed?
Hello I’m a Mexican author a wrote a movie script in English about mexican actor/singer who died in 1957. Do I Have to Pay royalties to his estate ?
I’m writing an autobiography about my medical trauma, and what helped me survive. In the novel, I talk about how singer Kelly Clarson and how her songs – What Doesn’t Kill You Makes You Stronger and Dare You – helped me endure and I’ve also included quotes from other famous people. Is that okay?
Great article! If I’m creating a short animated fantasy comedy film that depicts a famous (deceased) artist (Dali) in a clearly “fantastic” way. Would I be infringing on his estates’ rights?
I am writing a children’s book for young girls and I am using illustrations of famous people like Oprah Michelle Obama Maya Angelou and a bit of their story to encourage young girl to strive for greatness. I also have all the illustrations on the front cover am in in violation or copy right infringement
Hi, my co-author and I have written and illustrated a book based on The Beatles. It’s a picture book – a nonsensical and humorous fictional narrative loosely structured around The Beatles universe with some references to actual events and people. Woven into the narrative are all 327 song titles that they recorded. While we have understood that song titles are not protected by copyright laws, specially when used in text, we are now concerned about the use of The Beatles themselves as the central theme of the book. We had planned to self publish the book and retail it on platforms like Amazon. We have seen many books on The Beatles and even follows up with one author whi said she had taken no permission. Do you think we are in danger of being sued if we go ahead?
Although there is a risk that you might get sued, it’s more likely that the book will be the subject of a request to remove it from Amazon or wherever you sell it. I don’t know how active the Beatles rights managers are when it comes to enforcing their rights of publicity, so it’s hard to say whether that will happen. The bigger risk would have been if you had included lyrics instead of just song titles, so good job there.
Thank you so much for your response Kathryn. We are just thinking whether we should hire legal services to get clearance from The Beatles estate, which might cost more than what we can afford. Or just take the chance. Could it come under fair use? Considering we have fictionalised the material and it is new artistic interpretation, just wondering…
I’m setting up a website that will feature loads of celebrities and news articles they’ve appeared in.
I’ve two approaches in mind – the first is to just show their names and a photograph of them on the website, the second is to come up with alias’s for them (possibly still with their photograph) and to also (possibly) change their name within the news article to be their alias name. Is this possible to do? – would I be breaking any form of IP in this way. Some users of the website would be contributing financially to it’s upkeep / running costs but that would be voluntary and not mandatory in order to use it so I wouldn’t be selling anything as such on the site.
Presumably I can’t actually use their imagery etc. in advertising the site without first actually getting their permission but seeing as the site would feature how they themselves are featuring in news articles and the media, does that not mean they are effectively in the public domain anyway?
A character in my screenplay is an actress. I want her to get a starring role in a fictitious film series, but use an actual famous director’s name as the director of said fictitious series. Can I do this and be within my first Ammendment rights or do I need permission? I intend at some point to actually make the film independently as its director.
Using real people in your story but having them engage in fictitious events is risking a claim or defamation or that you violated their rights of publicity. How great a risk depends on who they are and which state’s law controls the issue. Referring to an individual in the context of accurate, historical information likely would not be a problem.
My husband is well known in his community and beyond as an exceptional fitness professional. He just recently got approached to be a character in a children’s book. How should he be compensated for his image being used in this way?
Working on a fantasy script where one of the central characters is Arthur Conan Doyle. None of his works are presented, but he himself is important to the narrative. Not finding a definitive answer on permissions needed, if any.
I have written a fictional hip-hop musical about the 2020 Presidential election and used all the original names such as Jo Biden, Donald Trump and celebrities Jennifer Lopez and Lady GaGa. The background details are real, but the plot and dialogue is fictitious. Am I protected by First Amendment Creative Work?
I’m doing my own documentary on an actor who has passed away. It’s all on my own (I’m not a film maker but I worked in tv news for 10 years) so I don’t have any funding but my own bank account. Will fair use allow me to use clips of his performances or some photos of his performances? I am not making any money, although it will be posted on a website (this does not make revenue either). I can’t afford licensing fees for the clips.
Jenna, The best resource I can point you to is the Documentary Filmmakers’ Statement of Best Practices in Fair Use from the Center for Media and Social Impact. They have set out guidelines you can follow that will minimize your risk. Good luck with your project and be sure to let me know how it goes.
Hello I’m Designing a video game and would like to add putin’s face for a Character at the end of the game, I Won’t mention his name, but How can I Do it without getting Sued
Hello. I was wondering if it is legal to use different established cartoon characters in the same story. Can you please give me some advice?
Maria, Using someone else’s characters in your story is called fan fiction. As long as you are not monetizing your work, that is selling it, you should be OK. Other than that, you would have to engage in a fair use analysis.
I have created 6 paintings depicting famous African Americans in history. All of these people are deceased. Am I able to use my images to write a children’s book? If so, how do I go about doing this?
This is a two-prong inquiry, Kendria. First, there may be rights of publicity controlled by the estates of the individuals depicted in your paintings. Rights of publicity are state law issues. You need to look at the law of each state where the individuals resided at the time of their death to learn whether such rights still exist after death. Second, you have a First Amendment right to the freedom of artistic expression. So, even if the estate of an individual you depicted controls the rights of publicity, depending on the law of the circuit, your right of artistic expression may control the outcome. I’m sorry this is not a cleaner answer, but this is where the law is at the moment. The good news is that the Supreme Court my be considering this issue this term and will give us all some clarity in the coming months. We can only hope.
I have created a short story about 14 friend’s who were at Alpine Valley in 1990 the night before the death of Stevie Ray Vaughan at Alpine Vally. I would like to publish this true story. I have documentation from my saved newspaper article…can I use the names of Stevie Ray Vaughan and Eric Claptan and others I have from the newspaper?
My short story has Stephen King saying some pretty damning things about his family and family life. I have no idea if this is true or not, so is this legal to do so??
Hello, I’m writing a historical musical. As of now, it’s still at the developmental stage-not yet a commercial production. Do I need permission to feature a historical figure as a primary character? I would be using their likeness and name, but not quoting them (their work is copyrighted.)
Kathryn, thank you for this information! What about writing characters who are celebrity impersonators with names slightly altered from the original, yet clearly introduced as an impersonator of a given celebrity?
Very interesting Kathryn…I am a writer from Greece and I have a problem…I have written a short novel in which the protagonist is Tarantino…I call it “Tarantino in front of the critical committee” and the story is: Tarantino in an alternative universe is a writer in Greece. His previous 9 novels have been rejected by the critical committee and now with and now with his tenth novel ” Once upon in time in Hollywood ” has one last chance to become a writer. So he appears before the committee and explains his work in order to obtain approval… This is my story, a comedy – novel around 50 pages. So, I need his permission to publish my book ??
Thank you so much for all of your hard work and willingness to decode the law for us creatives. I love your website so much!
You cover using famous people in fiction, but what about non-fiction?
I’m writing a non fiction book and I reference: Hitler, Bill Gates, Paul Allen, Jeff Bezos, Martin Luther King Jr, Princess Diana and Jack Canfield and Mark Victor Hansen.
I have written something similar to:
“Hitler was a depraved but brilliant strategist”
“ Jeff Bezos created a very successful empire.”
“Martin Luther King Jr. voiced what people were crying in his famous speech.”
“ Princess Diana was known for her charity work.”
“Jack Canfield and Mark Victor Hansen understood the universal healing of chicken soup and applied this concept to the soul through the stories expressed in their books.”
Because I’m not mentioning “Amazon” “I Have A Dream” or “Chicken Soup For The Soul” does my use of these individuals’ names fall under fair use?
(Or any others’ names used in the same way?)
Also, am I legally at risk to call Hitler depraved even though he was?
Thank you for your time!
I am thinking of a story with characters whose family structure resembles sex advice columnist Dan Savage’s (gay couple engaging in an open relationship/polyamory) and one part of the couple becomes obsessed with being a social media influencer for LGBT culture and fitness brands (which Savage’s husband does). This is where the resemblance ends. The characters wouldn’t be named after the real life inspiration. The plot/conflict would not revolve around what their life is actually like, as I have no idea about their personal lives, it would just be conjecture on what the lives of that type of family structure is like and a satirical view of social media influencer culture. Would that infringe on their right to publicity or is it general enough to be safe from legal repurcussion.
I would like to draw a picture book about the 80’s, with actors and singers in it.. It would be kind of a humorous/funny book. The way i see it now..
Is it safe to do ? No real photos or story used, only names and lot’s of “funky” illustrations. Kind of a “memory book” for all the 80′ fans. What do you think?
Thank You for your help!
I am writing a screenplay where the main character idolizes Frank Capra, the film director. The character ends up in Puragtory (after a suicide attempt), and has to fight to return to earth. When he is granted his wish, he is sent back, but not before being given a pep talk by Capra himself. Is that possible? I stick very much to Capra’s own writings about filmmaking, success, etc. for his dialogue and try to stay true to his real personality. I also have a version where Capra does not appear but is merely mentioned (“He’s too busy in Heaven making movies”). The first version is much stronger, but am worried about legal ramifications (even though he has been dead for almost 30 years).
Can you use reference publicly available stories of noteworthy living people in a book, to tell cautionary tales or inspiration?
You can recount publicly available stories about famous people with little or no risk. I recommend that you do your research to be sure that the stories you tell are true.
Can I fictionalize one night surrounding an event that involved a celebrity. The celebrity is dead. There is no footage of the event, just some scant newspaper articles.
Hello, great helpful info, I’d also like to know how to legally use a deceased international celebrity’s impersonation in a film, and perhaps their name in the title. And if I can, what platforms can the film be distributed on? (netflix, amazon, or just youtube) I’d appreciate it.
Publicity rights of deceased celebrities can be hard to understand because they are controlled by state law. In Indiana these rights last for 100 years after death. In California, 70 years. In New York, there are no publicity rights for deceased celebrities. So, there can be very different and strange results because of this. For instance, James Dean (or rather his estate) has control over publicity rights until 2055 because he was a resident of Indiana when he died. Marilyn Monroe has no postmortem publicity rights because she availed herself of New York’s estate laws.
In short, Rich, details are needed and some research has to be done to answer your question.
I’m writing a book w Rudolph Valentino as a character- he died in NY in 1926 – Does that make him fair game ?
This is all really helpful thank you! I am a game designer and I am designing a game involving 1940s-50s era hollywood stars. There would be mentions of famous movies and celebrities (they could be grounded in historical accuracy, even with a short description of the plot of the real film, but we will pretend they can be recast with other famous celebrity actors of the time as part of the game). This is a board game, so I don’t need to animate digital characters or give them dialogue lines, but players might cast Humphrey Bogart in Gone with the Wind. I can always resort to parody names, but i’d love to be able to give the game an even, serious tone and real likeness artwork. I’m worried for legal safety that I’ll have to ham up the names of everything. Any thoughts?
I’m writing a novel where one of my main characters is a celebrity for a TV show. I thought it would be fun to show people what it’s like being an actor. But I also want to use a bunch of my favorite actors/directors/producers/screenwriters, etc. Am I allowed to use their names or should I not?
I’ve written a science fiction novel, hopefully to become a screenplay, with a famous 40s actress as the main character. The basis of the plot is that she is re-created as a living person now. She remembers her time back then when she knew many famous people–Lana Turner, Howard Hughes, Alfred Hitchcock, etc. I take the flashback memories from her autobiography and biographies of the other people. Am I OK? Thank you.
Hi Kathryn, Thanks for this most informative column. I’m writing a book (fiction) about a tv show from the 70s. I’ve spoken with one of the actors, the son of one of the actors and the executive producer about the original tv show and my desire to write this book. In the beginning of the book which takes place in the present, I thank them by name for speaking with me. I also mention another actor by name who is deceased. In the rest of the book the three main characters are once again the main characters in
the story which is based in the 70s. Am I on thin ice if I do this?
What the famous person in your story is deceased?
Great question, Bryce. In some states, the right of publicity does not die with the celebrity. In California, for instance, Hollywood has made sure that right survives. Tennessee, too, the home of Elvis. It’s a state-by-state issue.
And if the character is French-Argentinian?
I’ve read this article and comments a number of times and I’d like to thank you for the information. I would very much appreciate your insights on my risk exposure for a short story I’m working on.
It features a fictional record producer who works with and befriends bands and artists that I’d like to mention in the story. They are only used in a contextual way to establish how predominant this producer is/was.
However, a key feature of the story that I’d like to use is a scenario that takes place in the future, where after the last member of a very famous (and real) band passes on, the producer gets the right to release a previously unknown recording that he helped to produce.
Am I at risk in either of these cases?
Alan, Your question will require more detail and some research into applicable state law. If you send me an email, we can talk about what is involved.
I just wrote a semi-fiction book that mentions my real encounter famous person (in a favorable light). I even have a memento the person handed me. This person is not the main character. Do I need his permission to mention his name.
Thanks for your helpful article, I am creating short animations of football players, and I am not using their real team or sponsors Logo, but what about their names or their Team and Club names? can I call them by their real names? I should mention that I am making this as funny clips which are mostly fictional but uses a satire reference to real news in small parts. How can I make sure that I am not crossing the line in my cartoons, drawings, and animations?
Thanks for your article Kathryn. The comments are useful as they hit close to home with my project. I finished a fictional screenplay about a wanna be music critic who interviews a handful of 80’s bands. Some bands are used in full interview scenes (ex. Joan Jett), some are mentioned only by name (ex. Frankie Goes to Hollywood), other times I just use their name and likeness. I was wondering the legal aspect of using them in that way?
I am aware that script readers frown on seeing famous people’s names and specific songs in scripts as it adds to the production cost. I don’t want it tossed out just for that reason if I have to change the name to protect the innocent, so to speak.
Della, Using names of singer/songwriters has little risk if you are not giving those individuals agency as characters in your story. But if you are making up an interview with Joan Jett, for example, and putting words in her mouth that she didn’t say, you’re treading on thin ice. You can always use the names of songs in your work. It’s the lyrics that are problematic.
Thank you Kathryn. This was helpful. In my children’s series, the main character dresses like his heroes, 70s and 80s icons/idols, in each story as he tries to teach important lessons. Also present, are caricatures of pop culture items, which are designed to be easily identified and appreciated by adult readers. The characterizations are not negative, demeaning, or exploitative. The main character simply loves things from his “good old days.”
Helpful article! I’m working on a fictional novel including Michael Jackson, Michael Jordan, Elvis and a few other celebrities. A specific object is passed around to them over the years. Their images are also on the cover (created from a freelance website…from stock photos). Based on your article, I think I’m in the clear…
I’m not so sure. Why do you think that? For one thing, by putting those celebrities on the cover, it seems like you might be using their rights of publicity to sell your book.
Thanks so much Kathryn. This is all really helpful and I appreciate you answering all these comments/questions. I am developing a work of historical fiction for TV and using a mixture of real/famous people from the early 1900s. If someone owns intellectual property to any organizational trademarks (names, logos, uniform designs), do I have to get permission to use those designs? In other words, I wouldn’t be selling anything with those elements but I would be using those names/designs as part of wardrobe.
Based on what you tell me, I think you have little to no risk here. You’re not using the marks in a trademark sense (to sell competitive products) and they should be fair game for a work of historical fiction. Take care to keep the references factual and not give the use of the marks any agency in the story.
So helpful! Just wondering- I’m working on a documentary about someone in the music industry during the 70s and 80s. There’s photographs I want to use of them with other famous musicians and singers. I’m working directly with the subjects family and the family owns the photos. Is it legal to use these photos say, purely for example if they are with Johnny Cash and June Carter, etc? Since the family took the photographs and owns them? Just need some clarity. Thanks!
There are two issues here: First is the copyright on the photos. Second is the rights of publicity of the people in the photos. It sounds like you have permission to use the photos from the owners of the copyright in them (remember that owning the photos and owning the copyright to them are two different things. The photographer owns the copyright). Get that permission in writing. As for the second issue as I mentioned in the post, creative work is entitled to First Amendment protection if: (1) the use of the famous persona is artistically relevant to the work; and (2) the use is not misleading as to the source or content of the work. If the photos are relevant to the story you’re telling in the documentary, be sure that you are not suggesting that the famous people depicted are endorsing your work. That way you can reduce, if not eliminate, the risk of a claim being made against you. This issue could benefit from a full legal clearance opinion, rather than a reply to a blog comment, especially if you plan to market your work.
This is really informative. I’m about to publish a book of short stories and now I scared to death.
!- I have a funny/cute story about the color green for St. Patrick’s Day and how powerful it is. Then I list a whole bunch of green things and that they get their power from bring green. Then I list a bunch of cartoon characters that are green and a company name that all have power from being green (it’s a complement in the text). Is this allowed?
2- Another story is for Christmas and a runaway elf and Blitzen. At one point as an aside there is a complaint that Blitzen gets no attention, it’s always “Rudolf this and Rudolf that.” I don’t say “Rudolf the Red Nosed Reindeer but I reference it. Then the story is back to the elf and Blitzen. Is this allowed?
Those are both good questions.
Mentioning the cartoon characters and the company while telling a story about the source of their power is not likely to be considered an infringement. Remember that it’s not a question of “What is allowed.” It’s a question of reducing risk. Now, if you were to reproduce images of the cartoon characters in your story, that could be considered a copyright infringement.
Your second example sounds like a question of fan fiction. Fan fiction is when a writer uses a character from someone else’s story and builds a new story around it. I am not well versed in the law of fan fiction except to say that if your work is transformative of the original, giving it new meaning and message, then it will be considered fair use. Some authors are extremely protective of their characters. Others, not so much. There’s also the possibility that your story could fall into the satire category which is fair use, too.
Thanks was helpful and solves my problem.
Thank you for the article, Kathryn.
I’m writing a series of fiction books using character first names from a popular reality TV show. For example, book 1 uses the real first names of the top 4 contestants in Season 1 of the show. Book 2 uses the real first names of the top 4 contestants of Season 2, etc. There are no physical character similarities, personalities, or actions and there is no relation to the show with the storyline – I’m only using the first names to pay homage to the show. There is no denying that the character names for each book are taken from the real names of the characters on this show, but that is the only connection with the show to my books. Is there any risk in using these first names in this nature?
I see little risk in using character names this way. Based on what you’ve described, it sounds like the reference to the show is subtle, not overt. You’re using the names, not the personalities. A disclaimer on the copyright page would reduce potential risk further.
One thing you didn’t address but I think I know the answer to is social media. For instance, my character often reflects upon/reacts to the social media feeds of real influencers and celebrities (but the story is fiction). As long as she’s only referring to things they really posted, is that OK?
If your storyline is mostly about your main character’s involvement with the social feeds of real influencers, you need to be careful that you’re not trading on their rights of publicity. If the reference to influencers is incidental to your story, I’d say the risk is low.
Hi Kathryn! I am writing a play about my mom’s obsession with a celebrity and her fantasy that we marry. Am I at risk if I include his full name in the title of my play? If I intend to film the play and sell it to a streaming network, would I need to secure permissions?
Hi Question for you: I wrote a nonfiction book about baseball events that happened nearly 80 years ago. In the screenplay version of that book it is structured around a therapy session between an actual historical person (deceased since the 1970s) and a psychiatrist who is fictitious.
Would that be problematic?
I’m glad you wrote this article! I’ve been toying with using a real name verses a fictitious one with a legal case that is public knowledge because I don’t have ALL of the details. My story isn’t based off of this celeb at all. In fact, the celeb is only mentioned because I have a lawyer as a main character and I want to point out how good she is at PR and that’s it. I’ve decided to just make up a name and change the situation slightly because I just don’t want any trouble. I can always make it MORE fictitious as the second, third, and fourth drafts come into play.
Kathryn, could I name a play: “Herb and Lenny at the Plaza Hotel.” ? Is the hotel title off limits?
I was catfish for a person using a famous singer and I wrote a book about it , how that affect me and what i did until I discover that person was faking, my life was almost destroyed with that lied online love history!
I’m sorry that happened to you.
Thank you for this enlightening piece, Kathryn.
How about if I write short biographies for children about famous people who are still alive? Is that fair game? Or do I need to ask permission/licenses from 365 living people if I have a 365 Days type of short biographies?
I’m asking because I see dozens upon dozens of short biographies titled “Who is Lebron James?” Who is “Michael Jordan?” “Who is Elon Musk?” and more! Although, these are individual short storybooks.
Thank you so much. You are helping us all save tons of headaches and financial disasters! 🙂
~ Jeff B.
I’m writing a book and the some of the characters are decendents of famous, powerful influencers that have passed away. Am I allowed to use the last name and say that they are related?
I cannot give you a definitive answer without more details and analysis. But I will say that you need to rephrase your question from “Am I allowed . . .” to “What is my risk . . . .” If you plan to use real and/or famous people or their descendants in your creative work without their permission, you need to assess the risk of a claim being made against you. If the descendant characters in your story are doing and saying things that they do not really do or say, your risk goes up. If your characters are descendants of powerful people whose estates aggressively protect their publicity rights, your risk goes up. Ultimately, your defense will be whether the use of the characters is artistically relevant to your story and not misleading as to endorsement of your work.
I’m writing a children’s book that we’ve decided to use illustrators of past and present women that are historically relevant- I wanted to be sure doing so (which it seems if I’m understanding the above article is allowed)
As I mentioned in response to an earlier comment, the better question is not whether you are allowed, it is what kind of risk are you facing. Just to clarify, in a children’s book you are writing, you want to use illustrations of woman, past and present, who are historically relevant. If you are the artist (or have hired an artist) creating original illustrations and your book is essentially historically accurate, you will have little to no risk. The illustrations are artistically relevant to the stories you are telling and a collection of biographies of women we all ought to know about does not seem to suggest that any one of them endorses your work. I look forward to hearing more about it, especially which women you are including.
This is great info! If I put a picture of a cherry tree on a t-shirt and the text “George told the truth” then I would be infringing on George Washington’s right of publicity? What if I put a cherry tree and put the text “Guess who told the truth?” Is there any way to allude to the person without violating their publicity rights? Thanks! ?
Well . . . I’m not sure if George has rights of publicity anymore. But if he did, and you are using his image to sell shirts, I think that would be a violation of his rights.
My name is brad weston, I’m an indie filmmaker and curious how to include famous people in the plot of some my scripts that I will sell as movies one day – I need some advice – also I am thinking of doing a podcast and would love you to interview and answer few questions – my site is at bradwestonfilms.com – you can contact me at firstname.lastname@example.org
The rules for using famous people in films are essentially the same as using celebs in fiction. If the film is based on a biography, you will need to option the book. If the film is based on someone’s life story, you will need to secure those rights.
I currently am almost done with a screen play about a famous singer, although it’s a “what if” type story. Fantasy, so it’s fiction. I have thought about changing names completely, but the story would be reminiscent still of that famous person. I am at a loss of what to do.
Hi, thank you for this helpful article! I am writing a novel that takes place in 1996-97 Los Angeles and is loosely autobiographical in terms of setup: I was a (completely unknown, part of the problem!) actress in LA for several years and had a romantic relationship that ultimately imploded in part bc of different career choices, etc. HOWEVER, the actual events and plot are totally fictionalized (by changing names, places, what happened, lots of details, etc., adding a pregnancy that never happened as one example). That said, the actress Victoria Principal shows up as herself in conjunction with true events—she was a cochair for the LA County Domestic Violence Council in 1997–and the main character’s boyfriend (a character who has been fictionalized) directed a PSA for Victoria Principal’s non-profit, and this happened in real life. FICTIONALIZED in the book, the protagonist meets Victoria Principal (since her boyfriend is working with VP and this is his first “big break”), gets advice from VP, goes to a party at VP’s house, etc. This is all TOTALLY FICTIONAL–never met VP. It should also be said that Victoria Principal appears in a way that is totally innocuous and actually flattering— she was a co-chair for a non-profit against domestic violence, so she’s probably a good person?:). It makes sense in the context of the book and adds humor and camp for her to appear–a lot of actors, writers, etc. are mentioned to make the world of theater and Hollywood come alive. I keep thinking of how Woody Allen fictionalized Hemingway and F. Scott Fitzgerald in “Midnight in Paris” or Nicolas Cage in “Adaptation” and it’s kind of like that–blown up to make a point of how the line between real and imagined is thin (not that I am comparing my writing to that of Woody Allen and/or Charlie Kaufman. If only!). Anyway-What do you think?
Thank you for your informative article. I am interested in writing a script about a political family from history. There have been documentaries and books, a few movies even, but nothing as extensive as I’d like to explore as a film or series that would be accessible to a wider audience. Perhaps the legalities have made something like this prohibitive and this is why it has not been done. All of these people are long gone. Is this something that would be too difficult and tricky for me to pursue?
I want to write a fiction book about a real, famous, French-Impressionist artist that takes place in the afterlife. No images of his work will be shown, and this story could be written such that it doesn’t reference even one piece of his famed work. The only reference to him that would be used is his name, but he would be speaking fictitiously in the afterlife to the main character of the story. What is your advice on this matter?
My thoughts on this matter are that the afterlife of French Impressionists is fair game. I’m thinking particularly of Lincoln in the Bardo as an analogy.
Also, I am also thinking that if you wanted to use images, you could, if you found them from one of these museums: Museums that Give Away Open Access Images of Public Domain Work.
Thank you for this helpful information! I read the responses below and still have a question. In the book I’m writing I have stories of overcoming childhood trauma using 4 famous people as short examples to illustrate the point. Is this allowed?
You need to get a legal clearance opinion for each of the four individuals. You may end up needing to get their permission to use them as examples in your book. There’s no way to analyze the question without more detail. Privacy rights, publicity rights, and defamation could all be in play especially when talking about childhood.
Wow, I’m so glad a friend of mine gave me your site. I had no idea. Thank you SO much!
I got all the information about them online from interviews and biography.com and rewrote it thinking I was doing the correct copyright thing instead of copy/paste with reference cited. Is the latter legal because that information is already published online?
If I wanted to seek their permission, how do I go about doing that?
I’m going to send you a link to my schedule so you can book a time for a free quick chat about your project.
Hi Kathryn, very informative piece, thanks! After reading a few of your responses below, I have a feeling that I may be in for some revisions, but, I will ask anyway for clarification. The screenplay I’m writing takes place in the early 60s and the history and pop culture of that era are central to the work. Occasionally, I insert an image of a black and white tv screen in which the channels are being changed. As the channels are being changed, various brief clips (2-3 sec) appear of 60s tv commercials, news casts, clips from movies, etc. In the script, I document in detail the YouTube source and segment to be used. What gives me slight hope is that, as a creative piece, a piece not using the clips to promote sales, but solely as part of the artistic intent, that I might slip by? Thanks.
In a fair use analysis, one of the factors considered is the amount of the work being taken. You’re taking 2-3 seconds of much larger pieces. If those few seconds are not the “heart and soul” of the piece, this factor would weigh in favor of fair use. Check out the post on Fair Use: Using the Creative Work of Others, the example of 300 words taken from Gerald Ford’s much longer book.
An earlier commenter on this post wants to use photographs and images in their entirety in his film. That’s different from what you’re planning. This is not a clearance opinion, just a back of the envelope look at one factor.
My other thought is why are you using the old TV shows/commercials at all? Is it integral to your creative story line, or do you just want to make it easy on yourself by not creating a segment that looks 60s-like TV? When using the work of others, you must be able to articulate the reason for the creative process.
Also, giving credit is nice, but not a substitute for a fair use analysis or a defense to infringement.
Very helpful article, thanks for this Kathryn. I had a quick question, I’m writing a film where a character is obsessed with pop culture, so celebrity names come up regularly. But I also wanted posters, props, and images of celebrities to be in the room of the character – is this copyright infringement , as every photo/image in the room need to be cleared? Her obsession with pop culture is extremely relevant to her character arc. So I’m not sure how to get around this… Any help would be very much appreciated!
You very well could have copyright issues with the images that might be used to decorate the set. The posters and photographs were created by artists who have rights in them. By putting them in a film, you are copying them. A fair use analysis would have to be done. If it’s not fair use, you’ll need permission.
Thank you for quick response, Kathryn!
Here’s a more contemporary expression of my original query which referred to TR’s charge (a week or so ago). The story that Alice Cooper (Vinny Furnier) bit the head off a live chicken during a live performance will never die, even though it’s untrue. But it’s become iconic – some people might even consider it true even now – and it will always be associated with him in popular culture. I’m asking whether I risk liability using an altered version of this BS story as a device in my novel: he bites the head off a different small creature; a bandmate does it instead; Cooper bitten instead of doing the biting – but nothing damaging (like biting the head off a kitten). The reader, hopefully, would realize my version is altered when it doesn’t go where expected, setting her up for whatever comes next.
Very helpful information. RAises the question for me about using places such as real store names where an event (good or bad) happens?
If the event that happens in the real store is fictional, you are better off creating a fictional store. Giving agency in your story to entities that exist in the real world comes with a certain amount of risk that you may not be interested in entertaining. Besides, you’re a creative writer, right? Write something creative.
Hello Kathryn, as usual – terrific information… thanks very much!
I read (actually listened to) an e-book by Shane Kuhn called ‘The Intern’s Handbook’ (a very entertaining first-person novel about a hitman posing as an intern in a business setting). In his story, Kuhn used the law firm name of Bendini, Lambert and Locke – which was taken directly from John Grisham’s novel, ‘The Firm’. When I heard it in Kuhn’s book, I remembered Grisham’s fictional law firm instantly. I assume this is why he was able to use that law firm name without fear of repercussion. It surely added an air of recollection and flavor. I’ve done similar things with my novel in process (ie, song titles, etc.) and will be speaking with you about it one of these days, after I finally get my manuscript completed.
Protecting fictional trademarks is an interesting issue. The creators of The Simpsons have gone to great lengths to protect Duff Beer, a fictional brew, from being used by real brewers. It’s not really a trademark because 20th Century Fox wasn’t really selling Duff beer (although now they are) and copyright doesn’t protect words or short phrases. Nevertheless, Fox has been able to protect its fictional trademark.
Thanks for the comment. Kathryn
Your articles are always helpful. I’ve started painting a series to musicians in performance. My source material are photos I took at a concert. The venue allowed cellular phone images. The artists did not have signs on stage saying no photography, which I have seen at some concerts. In one I depict two of the musicians & have their drum which names the group. The painting is simply titled “Letting Loose” with no reference to the group specifically. All the paintings reflect high energy moments in their show. Is this fair use?
Here’s an example of how the law works: The University of Alabama controls the publicity rights of its staff and football players. It sued Daniel Moore for painting certain individuals and using its trademarks. The right to publicity is the equivalent of an individual’s trademark. The Court decided in favor of the artist saying that artistic expression is entitled to full First Amendment protection. Google up Daniel Moore and take a look at his work. So, you need to be able to articulate your artistic expression and relevance to the Neville brother you plan to paint. You can’t just trade on his name. And BONUS! You are painting from your photographs, so no copyright issue.
One of my students wanted to use a picture of a singer as the basis for a fabric portrait . Is this a transformative use?
Just changing the medium of a creative work from a photo to a fabric portrait is not transformative. There has to be something new added, an individual creative aspect. Take a look at the Green Day example in this post: Is it Fair Use? Using the Creative Work of Others. The image conveyed new information, aesthetics, insights, and understandings distinct from the original piece and was transformative.
“Slightly out of focus picture of yours truly with Cory Doctorow…”
The photograph looks more blurred vs. out-of-focus.
Blurred photographs tend to occur when using a slow camera shutter speed and/or when the camera phone operator inadvertently shakes the phone during the low ambient light level exposure and/or inadvertently taps the screen (triggering the exposure) with excessive force that causes the camera phone to shake.
Aside from the technical hiccup, it’s still a nice souvenir photograph.
I’ll have to send my husband to cell phone picture taking classes. We’ll see if he gets any better at it.
Many thanks for your helpful insights, Ms. Goldman, especially the most recent. Along those lines, would it be okay to present Teddy Roosevelt and the Roughriders’ charge up Mount Orizaba on Santa Catalina Island – not San Jaun Hill – as the accepted version of a common yarn within the context of a novel’s modified reality?
I’m not sure I understand what you mean by
the accepted version of a common yarn within the context of a novel’s modified reality.
Are you rewriting history? Creating a what if scenario?
Regardless, I don’t think you have to worry about the publicity rights of a famous individual who took part in an event over 100 years ago.
I’d be interested in knowing how the author included song lyrics in “Ready Player One” without getting permission. Is there a way around paying for
their use (which is what I’ve come across).
As you are probably aware, using song lyrics in fiction is a fraught area. There is a strong argument to be made that songs lyrics in fiction is transformative and therefore fair use. I have found one scholarly article on the subject that argues authors should be permitted to use lyrics in their work: Fair Use & The Quotation of Song Lyrics in Fiction by Stephen B. Harrison. He concludes that it will take a brave and well funded author to challenge the current practice of licensing lyrics for literary use. The music publishing industry has convinced everybody that a license is needed.
I only found two instances of lyrics being quoted in Ready Player One. My guess is that they were licensed.
Thanks again for another interesting post.
I just published a Western which describes what could have happened if two females were the best in the West. Most of the story is written as a series of episodes, and several episodes involve Hollywood epics or characters. At the end of my book I explicitly list all of the allusions which I deliberately made in the book, and these weren’t just to famous actors or movies.
I always modified Hollywood character or actor names, and almost always only slightly. The point being that the story also stands as a challenge to interested readers to guess all of the 200+ allusions.
Here are some of the things I did/wrote:
1. Used famous quotes, e.g. “I’ll be back”.
2. Used song names but never any words from the songs.
3. My characters spent an evening with Benny, Little Joey and Horsie Cartwheel. (Bonanza)
4. My characters met up with a cattle drive: “we call him Pearly Gates … . His real name is Flint Fleetwood”. (Rawhide)
5. My characters had an encounter with “Brinner the Grinner” of the “Sinister Seven”. (For Yul Brynner in The Magnificent Seven).
6. “Corporal Blanders … cooked using my seven secret seeds and spices … packed some of the awful looking food into a special purpose-built bucket for them, and handed it over …”. (Parody)
I would welcome any initial thoughts you have about the above.
The famous people you are asking about are Clint Eastwood in his role in Rawhide and Yul Brynner in his role in The Magnificent Seven. Your question is less about using famous personas in your story than it is about using, or alluding to, the creative work of others, in this case the characters. That’s going to call for a fair use analysis. Take a look at this post: Using the Creative Work of Others and see how your use of those characters measures with respect to transformative use.
Also, see my response to the question about song lyrics. I think you’re in good shape just using song names and not lyrics. I don’t see a problem with the quote, either.
Thanks. I believe my use has been transformative, but it seems that if it ever went to court then fickleness might have a bearing on the outcome.
Hi Kathryn, thanks for the helpful information. So, from my understanding, it is okay to use a famous singer’s name as the singer of their song in my story, is that correct? For instance, I have that the man was driving in his car listening to a song by the singer’s name. Am I allowed to do that? Thanks in advance for your response.
Yes. It is fair game to say that a character in your story is listening to [famous singer] singing [popular song] on the radio, or whatever. There’s no problem with that. It’s the lyrics themselves that are problematic.
Similar question. At the end of my novel, Scorpio’s Fire, the main character is despondent because his wife has left (after a 250 page struggle). His buddy tries to cheer him up. “Let’s put on the Byrds, ‘Turn, Turn, Turn.'” After some dialogue, the lyrics come on and the characters sing along: “To everything/ Umm, hmm, hmm/ There is a season/ Umm, hmm, hmm/ ” etc. At the end, in small print is this attribution (Ecclesiastes 3:1,8, NKJV). I believe I can safely do this because the only actual lyrics that I quote are lines that the Byrds lifted word for word from the Bible. Would you agree. Ray