Will Character X's family pursue me for libel?

[Iceland_Blue]

I am writing a story in which Character X, a real person, is portrayed as being a rather unpleasant character, getting innocent people thrown into prison and such like. Now Character X is dead so there's no quibbles with libel there. But could their family sue me that I am ruining either the reputation of X or theirs, since they were closely associated with X?

[Marley23]

In American law, the dead have no reputation. As such, they cannot be defamed. I doubt the family could sue you for ruining their reputation if you're writing about the dead person and not them.

[C K Dexter Haven]

IANA Lawyer, but I don't think what Marley said is accurate. An estate can still sue, IIRC.

Look, opinions on the Message Board are one thing, but you should check with your lawyer on specifics. The opinions presented here ain't worth beans. People can give generic information, but that might not apply in your specific case.

Quick example: Is it OK to run a red light without stopping? Generic answer: No. Specific case: I'm a cop, with siren and lights flashing. Specific answer: Oh, that's different.

Also, this is a question about the law, not about arts and entertainment per se, so I'm moving it to the General Questions forum where you'll stand a better chance of getting some lawyers responding.

[Marley23]

I can't see how the family of a famous dead person could sue you for hurting the dead person's reputation. Like I said, legally, dead people don't have a reputation. You can't libel them. I'm less sure of what the family could do and if you're that worried, Dex is right that a lawyer is the person to talk to.

[astro]

Maybe not

Libel (http://www.comm.wayne.edu/images/wright/05_libel.html)

Smith v. Dameron (1987) -- Plaintiffs sued for report of suggestions by teacher that their murdered son had been on drugs, drank a lot, was aggressive and talked without making much sense. Only a living person can sue for libel. Can't libel a dead man because the dead man cannot suffer as a result of his reputation being damaged. Survival statutes say that if person begins lawsuit, then dies before it is completed, survivors can continue it.

Maybe so

One of the questions I frequently receive is "May I use real people, or characters based on real people, in my writing? (http://www.publishlawyer.com/carousel4.htm)

There are essentially three types of "real persons" protected by the law -- living ordinary people; living public figures (celebrities) and, in some states, dead public figures. Using any of these in your writing involves the intersection of defamation law, privacy law, and the right of publicity. In only one of the three (defamation) is truth always a defense. Let's look at each:

[David Simmons]

I am writing a story in which Character X, a real person, is portrayed as being a rather unpleasant character, getting innocent people thrown into prison and such like. Now Character X is dead so there's no quibbles with libel there. But could their family sue me that I am ruining either the reputation of X or theirs, since they were closely associated with X?

I'm not a lawyer. When you take the story to the publishers make sure they know that the character was a real person but is now dead. The publishers that I know about have legal departments or attorneys available to them. In order to sue you, I think the family would have to also sue the publisher.

Of course if you are the publisher you need a flesh and blood attorney and not some disembodied voice out of cyberspace.

[Polycarp]

The potential for lawsuits is why you have that little disclaimer in the front of most novels to the effect that it is a work of fiction and is not based on any person, living or dead -- even when you know for an absolute fact that "Sam Smithers" in the story is modeled precisely on Truman Capote, or something of the sort.

Perhaps a variant on that disclaimer to the effect that "Characters in this book are fictitious and are not intended to portray actual persons, living or dead. In particular, please regard the character NN, who shares a name and a career with the late real-life person of that name, as completely my invention, and in no way an attempt to depict the real NN."

Better still, change the name of your character. If "Joe Fitzpatrick" is the son of a Baltimore millionaire who becomes a Naval hero in WWII, marries a beautiful and cultured woman of European ancestry, runs for and wins a Senate seat, runs for and wins the Presidency, has an affair with a beautiful blonde movie star, and is shot to death while in office, it doesn't take a rocket scientist to figure out whom you meant Joe to represent -- but any scurrilous characteristics you give Joe and his family are theirs, not those of the real-life character and family that he "coincidentally" resembles.

[AngelicGemma]

The rule is - when someone is dead, you can say what you like without being sued. (At least, in the UK)

[Peter Morris]

I am not a lawyer, I certainly am not YOUR lawyer, but there are torts other than libel that you must beware. If you go telling lies, and someone suffers damage because of your lies, you could well be sued.

For example, suppose X was a popular novelist with a string of best-sellers and a movie deal being negotiated. Your story paints him as a monster. Sales of his books fall off, and the movie deal falls through. The family can't sue you for damaging X's reputation, but they can sue you for the financial harm you have caused them.


Now, may I aske what you are doing writing this story in the first place? Was X an unpleasant character in reality? Why do you want to trash him?

[Dewey Finn]

Could Iceland_Blue be sued for trademark infringement rather than libel? The names and likenesses of many celebrities are trademarked so that they can't be used in advertising without the cooperation of the estate.

[Iceland_Blue]

I don't believe her name was trademarked. Due to the fact that no-one had heard of her before she died.

[Gary "Wombat" Robson]

Unfortunately, in the U.S. anybody can sue you at any time for darned near anything, as long as they can find a lawyer willing to bring the case. That doesn't mean it is a "legitimate" case, or that it's winnable, but it will still cost you money to defend.