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.
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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 roll 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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