The Dead as Characters in Fiction: Shoeless Joe, J.D. Salinger, and J.R.R. Tolkien

On January 25 of this year, lawyers for the Estate of J.R.R. Tolkien sent a cease and desist letter to author Steve Hillard claiming that his novel Mirkwood violates the Estate's right of publicity in Tolkien's persona because (among other reasons) Hillard depicts Tolkien as a character in his book. The Estate cited Texas and Kentucky as examples of jurisdictions with statutes that extend the right of publicity to the dead.  Hillard responded by filing a preemptive lawsuit in federal court in Austin, Texas, seeking a declaration that his novel does not violate the Estate's rights.  Hillard's filing cites several good examples of recent novels by well-regarded writers that made prominent use of dead celebrities as characters, including Blonde by Joyce Carol Oates, featuring Marilyn Monroe as a character, The Hours by Michael Cunningham, featuring Virginia Woolf, and Underworld by Don DeLillo, featuring Frank Sinatra, Jackie Gleason, and J. Edgar Hoover, among others.  Early articles concerning the Mirkwood dispute appear here, here, and here.

I gather that the Estate may have other gripes about the allegedly "Tolkien-like" cover and the appearance of Tolkien's name in the subhead "A Novel About JRR Tolkien."  But it's not my purpose here to express a view on the merits of this particular lawsuit.  Instead, I'd like to voice my disaffection for the entire concept of a post-mortem right of publicity.

Briefly stated, the right of publicity prohibits the use of an individual's name or likeness (and, in some places, other elements of one's persona, such as one's voice, signature, etc.) in advertising or for "purposes of trade."  (RightofPublicity.com offers a good background discussion on the right; this good online whitepaper from the Kenyon & Kenyon law firm discusses the right in certain non-U.S. jurisdictions.)

There has been a lot of debate over the years about what falls within the ambit of "purposes of trade."  And there have been a fair number of lawsuits contending that "purposes of trade" include depicting an individual, without his consent (or the consent of his heirs), in a work of fiction, such as a novel or movie.  After all (the plaintiffs argue), the writer or producer is expecting to make money from the fictional work.  On the other hand, thankfully, many right of publicity statutes and court decisions explicitly recognize that there is a strong countervailing First Amendment interest in not curtailing all use of individuals' names in expressive works.

There has been a spate of recent right of publicity cases involving the use of real people in fictional works. (See this article from the American Bar Association summarizing recent developments.)  When brought on behalf of living individuals, most cases, like this one involving the television series CSI recently dismissed by an appeals court in California, tend to be yoked with a claim for libel, on the theory that not only does the plaintiff have a property right in his persona, but he has been falsely and disparagingly portrayed in the fictional work. (This raises the separate but related question of libel in fiction, which is the subject of this earlier post.)  However, when libel is not a factor, i.e., when the only claim is one based upon the right of publicity, in most cases -- but unfortunately not all -- the fiction writers have prevailed.  Still, there is no denying that this can be an unpredictable area of the law, as illustrated by the Tony Twist case.

But what about a right of publicity for the dead?  Remember, you can't libel the dead in the United States.  I, for one, see no compelling social benefit in bestowing a new property right on the heirs of dead celebrities, particularly when it is has too often been mischievously used by the living in an effort to suppress creative works, which are (and should be) entitled to robust protection under the First Amendment.  And yet approximately 19 states now recognize a post-mortem right of publicity.  (The laws, I might add, are entirely inconsistent with each other; some according protection for as few as 10 years after death, while Indiana and Oklahoma purport to extend protection for the astonishing term of 100 years!)

Back in the 1980s, I read the great baseball novel Shoeless Joe by W.P. Kinsella.  The title character is the ghost of Shoeless Joe Jackson, who was, of course, one of the greatest hitters of all time and the most famous member of the Chicago White Sox team (or the Black Sox, as they have come to be called) that fixed the 1919 World Series.  The book also features a central character by the name of J.D. Salinger.

If you haven't read the book, you may know the story from the 1989 movie Field of Dreams, which is closely based on Kinsella's novel.  When I saw the movie, I was immediately struck by the fact that J.D. Salinger had vanished from the story and had been replaced by a totally fictional character named Terrence Mann.  I had a work-related reason to learn more about the reason for this dramatic change in the dramatis personae.  So I called around and finally managed to locate W.P. Kinsella, who was living at the time in White Rock, British Columbia, writing more novels.  (I must say he was uncommonly cordial and gracious to a young lawyer calling him completely out of the blue.)  I asked him:  "What happened to J.D. Salinger?"  He told me that the lawyers had said that Salinger, who in 1989 was still very much alive, had to be cut out of the movie version of Shoeless Joe.  The lawyers were worried that Salinger (who had recently pursued a highly publicized lawsuit to block publication of an unauthorized biography that quoted from his unpublished letters) might try to block the release of the movie as a violation of his right of publicity.  The lawyers decided they couldn't take that chance.

(By the way, as far as I know, Salinger and his lawyers never threatened legal action in connection with Field of Dreams; the Hollywood lawyers simply feared he might.  I could be wrong about that.  If anyone knows for sure, please post a comment or send me a message.)

In 1989, New York State Legislature was considering a bill that would have extended the "right of publicity" to the dead.  If the law had passed, the heirs of dead celebrities could sue if their illustrious ancestors' names were used in advertising for "purposes of trade," just as living celebrities could sue under New York law -- then and now.  I was asked to participate in a panel discussion with one of the sponsors of the New York legislation.  And the reason I had tracked down W.P. Kinsella was to support one of the points I wanted to make:

Shoeless Joe Jackson died in 1961.  If New York enacts a statute recognizing a descendible right for publicity for up to a half century after death, I'm afraid that lawyers will be telling the W.P. Kinsellas of this world that not only do you have to cut J.D. Salinger out of Shoeless Joe, but you have to cut Shoeless Joe out of Shoeless Joe.

Well, New York didn't enact a post-mortem right of publicity statute in 1989.  But the legislators are still trying, and a similar bill was introduced for legislative consideration in 2010 and now has now been introduced again in 2011. At the same time, there is a movement afoot to enact a federal right of publicity statute that would include post-mortem  protection.

This is an active, controversial, and (by the low standard of lawyers) interesting area of the law, and my opinion as to the imprudence of a descendible right of publicity may be in the minority is, of course, just that -- one person's opinion.  The fact of the matter is that a post-mortem right of publicity is the law in many states.  Writers should be aware that (as long as they don't falsely imply that their works are authorized or endorsed by the heirs of a dead celebrity) they have a strong argument that the depiction of the dead in works of fiction is protected by the First Amendment. Again, think of Oates, DeLillo, Cunningham -- and Kinsella.  The statutes and the case law generally attempt to distinguish between conventionally commercial uses of a celebrity's name and likeness (such as use of images on tee-shirts) and more expressive, transformative uses (such as, one hopes, use in novels and films).  But the scope of the post-mortem right of publicity is none-too-clear, and celebrities' estates may be well-funded, aggressive, and lawyered-up. It's a grey area, and it may make sense to seek out legal advice before launching on a major project. Like Steve Hillard, you could conceivably end up with a fight on your hands.  If you do, it would be cheerful to have the support of an established publishing house.

Hilliard doesn't.  He self-published his novel.  About 900 copies had been sold prior to the filing of the lawsuit.

Postscript:  The right of publicity is not the only arrow in the quiver of those who would seek to prevent the use of real people, living or dead, as characters in fictional works.  Here, from lawyer Mark Litwak, is a good summary of the various legal theories that have been invoked, with greater or lesser success.  See also this summary from UK attorney David Crocker comparing UK and US law on the descendible right of publicity.  Finally, you might be interested in this account from The Hollywood Reporter of a federal judge recently holding the Washington State right of publicity statute unconstitutional in part.

Update:  Writer Diana Stevan's comment reminded me that I should have mentioned the lawsuit recently filed against Kathryn Stockett, author of The Help.  The plaintiff is a sixty year-old woman, who once worked as a maid for one of Stockett's relatives; she claims that she was used as the model for one of the principal characters in the book.  As is typical of such cases involving living plaintiffs, the complaint alleges a hodgepodge of legal theories, including violation of the right of publicity, false light invasion of privacy, and intentional infliction of emotional distress.  Here is an article by Laura Miller of Salon about the case. A copy of the complaint is here on the Jackson Jambalaya blog. And here is a good discussion Susan Cushman and lawyer John Mason on Jane Friedman's Writer's Digest blog.

See Diana's fine blog at http://www.dianastevan.com/.

Can a Writer Be Sued for Libeling the Dead? (What Would John Dean Say?)

It seems that, whenever a notorious celebrity dies, tell-all biographies appear within a few months -- or even weeks -- filled with unflattering new disclosures.  One explanation for this phenomenon is (to quote Judge Robert Sack, the author of one of the two leading treatises on libel):

The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors. 

Rodney Smolla, the author of the other leading treatise, concurs:

There is no liability for defamation of the dead, either to the estate of the deceased or to the deceased's descendants or relatives.

The rule seems to be much the same under UK common law, as summarized in this piece from the BBC.

Furthermore, most U.S. cases have held that a plaintiff cannot make an end-run around the rule that "you can't defame the dead" simply by restyling her claim as one for invasion of privacy, intentional infliction of emotional distress (upon the surviving family members), or injurious falsehood.

Even though the law is uncommonly clear on this point, that hasn't stopped an occasional outraged relative of the dearly departed from suing. For example, in1981, Charles Higham wrote a biography of Errol Flynn in which he charged that the actor had been a Nazi spy. Flynn's daughters sued for defamation and invasion of privacy -- unsuccessfully.  In upholding the dismissal of the case, a California appeals court reaffirmed that ''defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family or relatives who are not themselves defamed.''  A copy of the decision is available here.

At one time, the law was not so clear. See, for example, this 1931 article from Time magazine  And there are still a few disturbing wrinkles.  Judge Sack notes that several states, including Texas and Utah, have statutes that purport to define libel to include defaming the dead.  But, citing this Texas case, he concludes that, even in those jurisdictions:

successful defamation suits based on the defamation of the dead where there is no implied defamation of the living are apparently non-existent. 

Robert Spoo recently brought to my attention that there are also a few states, that continue to have antiquated criminal statutes on the books, some of which purport to prohibit defamation of both the living and the dead. In 1998, a federal court struck down one such law in Nevada as unconstitutional.

Doubtless there are abuses -- instances where writers make outrageous statements about the dead that they know to be false.  In response, a few commentators, including Raymond Iryami in "Give the Dead Their Day in Court", Lisa Brown in "Dead But Not Forgotten" (behind pay wall) and amazingly enough, John Dean, have suggested that enacting a civil remedy for disparagement of the dead might worth considering.  Indeed, the idea is not as far-fetched as I, for one, might wish it were.  Remarkably, in 1986, the New York State Senate passed such a bill, but it died a merciful death without being voted upon in the Assembly.  My own view is that such a law would be a staggering blow to biographers, historians, and journalists.

So what might writers take away from all this?

1.  The risks of a judgment being ultimately entered against a writer in the United States for libeling the dead are very close to zero.

2.  The risks of being sued for libeling the dead (or on some end-run cause of action) are very low, but not zero.  A defendant writer should ultimately win, but she might have to incur attorneys' fees in doing so.

3.  If you're writing unflatteringly about the dead in a work that will undergo a legal review by a book or magazine publisher, there is especially little to sweat.  The legal reviewer will presumably help you further minimize any risks and, if there were ever a suit, the publisher's lawyers would have the tools available to wage an exceedingly strong defense.

4.  As a practical matter, the deader the dead, the more improbable it is that there would ever be even a nuisance claim.  The few claims that have been brought tend to be by family members of the recently deceased (e.g., where the family contests a published report that a death was a suicide).

5.  As the quotation above from Judge Sack's book implies, there can be liability when a defamatory statement about the dead also reflects negatively on the living.  Take this statement:  "Before the cold-blooded killer, Fowler, was shot dead while fleeing from the police, he hid out for three days in his brother's apartment" (implying that the brother was an aider and abettor).

6. Truth, of course, is the ultimate defense to a libel claim.  So make sure you have your facts straight, whether you are writing about the living or the dead.  That said, there are times when fiction writers may artfully -- and lawfully -- "lie" about deceased historical figures that they have inserted into their novels or short stories.  (See this earlier post on libel in fiction and this cautionary post by a Writer's Digest blogger.) And that's just one of the reasons a "libeling-the-dead" statute is very bad idea.

Could I Be Liable for Libel in Fiction?

First, by way of reassurance, you should keep in mind that libel in fiction is rare.  Considering the vast number of novels, short stories, and satirical works published every year, successful libel suits arising out of fiction are few and far between.

In theory, the circumstances that can give rise to a claim are fairly obvious:  a character in a work of fiction is interpreted by readers to be a depiction of an actual living person; the character is depicted as behaving in an unsavory manner; and the living person contends that he/she never engaged in such behavior.  Plaintiffs have ranged from clearly named public persons to obscure (and even considerably disguised) acquaintances of the authors. This interesting ongoing case involving an episode of Law and Order is fairly typical; according to The Wall Street Journal it is the first libel in fiction case to survive summary judgment in New York in nearly 25 years.

You do not libel someone simply by depicting him or her in fictional circumstances.  Libel requires a false and defamatory statement of fact "of and concerning" an identifiable living person (or business entity).  If real people are depicted in your work only as engaging in acts they actually engaged in, there is no "falsity."  If real people are depicted in your work only as engaging in acts that are not at all untoward, there is no reasonable claim for that your work is "defamatory."  (Of course, your model's view of whether he or she has been held up to shame and ridicule may differ markedly from yours.)  Finally, if readers would not understand the statements you are making about your fictional character to be statements about a real person, then the statements are not "of and concerning" that person.

Rodney Smolla, the author of one of the two leading treatises on defamation, has neatly summarized the spectrum of risk:

When an author wants to draw from a real person as the basis for a fictional character, there are two relatively "safe" courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character's conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character's reputation, but make substantial efforts to disguise the character . . . to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person's attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

The courts have struggled with the question of when statements in a fictional work should be deemed "of and concerning" a real person with similar attributes.  In the most plaintiff-friendly decisions, the courts have said that a jury need only determine whether "the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant." Here is one such case; note, however, the court's extensive itemization of similarities between the plaintiff and the character in order to justify its decision.  Other cases, such as Welch v. Penguin Books, have been far more protective of writers, holding that "identification alone" is not a sufficient basis for imposing liability, and that the jury must instead be "totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all."

How do you avoid defaming someone with your works of fiction?

1.  Don't use your published work to settle scores with others.  Reserve your vengeance for your diary or private notebooks.  If you suspect your readers will recognize your fictional villains as the real-life individuals whom you used as models, then more fiction and less faction may be in order before you publish.

2.  If you model a negatively portrayed character after a real person, change as many identifying details as you reasonably can:  name, place of residence, age, physical description, personal background, occupation, relationships with other characters -- even the character's sex or ethnicity.

Sidebar:  The 1979 California case of Bindrim v. Mitchell illustrates the challenges of disguising a character while retaining the essential elements of the story you want to tell.  Gwen Davis Mitchell, the author of the novel Touching, had attended a series of real-life therapy sessions conducted by Dr. Paul Bindrim.  As a condition of participating, she had signed an agreement in which she agreed not to write about the sessions.  When Mitchell later wrote her novel, she included a character, Simon Herford, who conducted marathon nude therapy sessions and occasionally used less-than-chivalrous four-letter words.  Actually pretty mild stuff by 2011 standards.  The fictional Herford not only had a different name from Dr. Bindrim, but Mitchell also gave him a different physical appearance and a different professional background.  Nevertheless, the court found that Herford was recognizable as Bindrim to at least some of his colleagues, and therefore, to the extent that readers understood the novel to be making statements about Bindrim that he could prove to be false and defamatory, Bindrim could recover from Mitchell for libel. Here is an amused and amusing People magazine account of the dispute.  Ultimately, Dr. Bindrim obtained a substantial judgment against the novelist and publisher, which was upheld on appeal.  (Full disclosure: my firm was involved on behalf of the defendants at the appeal stage.)  The existence of the contract was an unusual twist and certainly complicated the defense, but the case stands as a warning about the considerable care that must be taken to distance fictional characters, who are depicted as misbehaving, from real individuals who may have inspired those characters.

3.  Don't use a name for your villain that echoes or conjures up the name of a real person on whom the character is based, e.g., Donald Knight should not be renamed Ronald Day in your novel.

4. Disclaimers can't hurt.  You will frequently see in the front matter of novels a statement such as:  "This is a work of fiction.  Names, characters, places, and incidents are the products of the author's imagination or are used fictitiously.  Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental."  A disclaimer won't really protect you if there is evidence that the similarities are not "entirely coincidental."  Nevertheless, a disclaimer gives a lawyer defending you something specific to point to in order to underscore to the court that "this work is presented to the world as 'fiction' not as a factual account."  And, remember, under the law, a reasonable reader would have to understand a statement about a person as a "false and defamatory" statement of fact for it to be libelous.

5.  Keep in mind that (with rare exceptions I won't venture into here) you can't libel the dead.  Basing a character on the dearly or undearly departed is unlikely to give rise to a problem.  (But keep in mind how your dead character interacts with other characters, who may have counterparts among still-living real individuals.  For example, consider a plot line where a character -- based on a real though dead person -- is depicted as a murderer, and his fictional brother is depicted as failing to disclose the crime to the authorities; a real-life brother of the real-life, identifiable model for the killer character might be heard to complain.)

6.  In some instances, the fact that the fiction is so far-fetched has worked to the author's benefit, giving rise to  a successful argument that no reasonable reader could possibly conclude that the defamatory statements were statements of fact, even though a reader might conceivably associate the character with a living person.  See the kinky case of Pring v. Penthouse.

7.  Remember that businesses and organizations can be defamed, too; so take care to avoid the false implication that an identifiable real entity has engaged in bad acts.

8.  If you have doubts or concerns about the way you have modeled a character after a living person, raise them with your editor or the publisher's in-house attorney before the work goes to press.  With a little rewriting, libel in fiction issues are almost always resolvable without significant detriment to a story line. You can still write a biting roman a clef even in these litigious times.

On my bookshelf of books on law for writers, The Writer's Legal Guide and The Rights of Authors, Artists, and Other Creative People have the best discussions of libel in fiction.  Online, Julie Hilden has a good post focusing on a disturbing Texas case.  And here are posts from two other practicing attorneys with useful background on the issue, one by David Hudson and an older one by Alan Kaufman.

Again, don't over-sweat this.  Libel in fiction is an infrequent problem and one that can be readily avoided with some advance thought about how you are using real-life models for your fictional characters.  Far more challenging and more common is the problem of reducing the risks of a defamation action arising from a tell-all memoir -- a subject that I will return to in a later post.