I was reading a book awhile ago, entitled Magicnet . The main character was named Schuyler “Sky” King. While it would have been amusing for him to be named after his uncle, or after the great hero, ala, it did not take place in the world of the old TV show , but instead in “the real world”. Thus, he was just like people named Stephen King, or Michael Jackson. These people have the same name as famous people, but that doesn’t make them any less entitled to their names. However, while it may happen in real life, what is the status of this in fiction? What is the legality of the book? Also, what if someone were to take a distinctive last name of a celebrity from their memories, and combine it with a different first name. It would be a different name than the original, but might still inadvertently bring up images of the original. I am assuming that while it would bring up images of the original, it would not make use of that fact in the story, or reference it in anyway, btw.
Generally, there’s only a problem if your product infringes on someone else’s intellectual property or if there’s an obvious intent to cash in on someone else’s fame, so I’m not sure what the problem would be. A name is a name. I could write a book with a character named, say, Madonna Presley and there wouldn’t be a legitimate case if I didn’t imply that M.P. was in any way related to either Elvis Presley or Madonna Ciccione, and as long as I didn’t have the name “Madonna” or “Presley” in big letters in the cover. You might run into some problems if you wanted to use a name that the celebrity in question has trademarked - it wouldn’t be a good idea to name your character Elvis Presley, for instance.
I’ll use the movie Clueless as an example - the main character is named Cher Horowitz, but Cher (the singer) didn’t sue them for using “her” name.
One notable exception: Andrew Lloyd Webber actually copyrighted his own name to avoid anyone using it for any reason without his permission. I image some other big names have done this too.
You can’t copyright a name. You can trademark one, however. At least in the U.S. I don’t know what Webber did or where.
California law has protection for celebrities that is much stricter than any other state’s, BTW.
In general, you can safely use anybody’s name for a clearly fictional character, and you can usually use a real person in fiction as long as nothing you do with the character can be considered libel. After that it gets complicated.
Andrew Lloyd Webber had two U.S. trademarks registered, one for “Andrew Lloyd Webber” and the other for “The Music of Andrew Lloyd Webber.” But both trademarks are now “abandoned.”
This is one of those interesting questions with the growth of ‘alternative history’ novels.
At times they’ll use names plainly for main POV characters and at times hide them.
Example:
In Turtledove’s Worldwar series these people are characters used extensively:
Vyacheslav Molotov
Joseph Stalin
Mordechai Ankielewicz
Menachim Begin
Omar Bradley
Kurt Chill
William Donovan
Anthony Eden
Robert Goddard
Leslie Groves
Cordell Hull
George Marshall
Nieh Ho-T’ing
These and many others are used either as minor or actual Point-of-View characters.
Yet later, when he has G Gordon Liddy appear in a significant supporting role in the second series he only refers to him as ‘Gordon’ though giving enough clues for the on-top-of-things reader to identify him.
In terms of promotional use he’s had many historical characters appear on his covers. Notably is one of the ‘Colonization’ books which featured the Ayatollah Khomenei, Heinrich Himmler, and Dr Martin Luther King, Jr.
Now Turtledove’s legal disclaimers do often read something like ‘All characters are fictional and a product of the author’s imagination. Where historical characters are used their actions are used in a fictional context.’
I am a lawyer but I am not your lawyer, I am probably not licensed to practise in your jurisdiction, I am not qualified to counsel you in this area of the law, and nothing I say here is legal advice.
(1) Speaking generally, you can use a person’s name without permission for an unrelated character in a fictional work. People don’t own names. Most names have belonged to other people before and people are often named for famous people, either by their parents or by themselves.
(2) Speaking generally, you can use a real person without permission as a character in a fictional work.
There are some possible legal implications you have to watch out for, however. If you are seriously considering doing one of the above, you should consult a competent lawyer licensed in your jurisdiction to evaluate your potential liability for these and other causes of action that might be implicated (in general, you are on thinner ice if the person in question is not a public figure) –
Defamation (libel and slander) - a false statement about a person that causes harm to reputation
Violation of privacy through a false depiction that portrays the person in a false light in a manner that would offend a reasonable person
Violation of privacy through misappropriation of a person’s name or likeness or identity (right to publicity) without consent for commercial benefit (usually this applies to advertisements, but it could have wider application)
Violation of privacy by unwanted intrusion into solitude - in essence, unwanted publicity
Violation of privacy by unwanted public disclosure of private and embarrassing facts that would offend a reasonable person
Also, generally speaking, in the common law, a dead person has no privacy rights and cannot be defamed. So you’re on much more solid ground if the name or person you’re using in the work is dead.
It seems like all of the replies are talking about using the names of real people in fiction. What the OP is asking about, unless I’m reading it wrong, is the legality of using a fictional name in other unrelated fiction.
For example, if I were to write a novel about an Iowa attorney named Clark Kent, having no connection to the Superman story. What would be the implications in this case?
Neither of these trademarks would prevent you from naming a character Andrew Lloyd Webber or using Webber himself as a character in your work. Trademarks give very limited protection and to infringe on a trademark, you have to use it in such a way that a consumer will believe that it is an indicator of origin of goods and services.
It would be interesting to see what would happen if another composer, who just happened to have the name Andrew Lloyd Webber, tried to work under his own name and the Baron Lloyd-Webber tried to sue him for infringement. I should think that Webber No. 2 would be safe so long as there was no proof that he was intentionally trying to mislead people by using his own name.
If you were actually using the same Clark Kent character that appears in D.C. Comics, then you might have a trademark and copyright infringement problem on your hands. D.C. Comics owns the character and they own the right to publish stories about that character. One exception of this would be in the case of parody.
However, if your Clark Kent clearly had nothing to do with Superman, and you weren’t using it in a trademark situation – putting THE STORY OF CLARK KENT in big letters on your book – in a way that was likely to confuse consumers into thinking you were referencing Superman, you would probably be safe.
Interestingly enough this almost happened right here.
My name is unusual. First is somewhat unusual and last is very unusual outside a small cadre is rural Louisiana and Oklahoma. Yet there is a musician in Colorado who has acheived a certain level of fame and fortune.
When I wrote a staff report here on the Dope on the history of music at least one person here posted as if I were that musician. I was at pains to point out that it was a coincidence only. Though I played the same instrument in school, oddly enough.
It’s fairly common for celebrities to trademark their names, but in most cases it probably isn’t necessary. A trademark only prevents someone from using that name in trade (and even then, often in limited areas of the market). So I couldn’t sell Andrew Lloyd Weber brand kazoos without his permission, but I could write a novel in which a mild-mannered accountant shares his name - as long as I didn’t call it “the Andrew Lloyd Weber Story”.
Just thought of another example: the movie Office Space, in which one of the supporting characters is named Michael Bolton; since the movie frequently refers to the singer of the same name as “a no-talent ass-clown,” it’s probably fair to say that no permission was given or requested for use of the name.
More specifically, it prohibits use only in the area of trade that the trademark owner engages in. You can have Apple Records and Apple Computers. There’s no trademark problem there.
But this has nothing to do with trademark law. It’s a right of privacy issue – specifically misappropriation/right of publicity. He would have to prove that your use of the name “Andrew Lloyd Webber” is an appropriation of his identity. Sometimes it’s easy; sometimes it’s not so easy (for example, what if your name is also Andrew Lloyd Webber?). So whether or not Webber holds a valid registered trademark in his name is irrelevant to this issue.
Now, hold on there. Not so fast. There’s no reason why the title The Andrew Lloyd Webber Story is automatically a misappropriation of the composer’s identity. He would have to show that you used the name in order to get consumers to believe the book had something to do with him.
I meant to give this example myself, but it slipped my mind. One of the fictional characters is named Michael Bolton; he has no connection to the popular recording artist; but he does have an opinion about him (a negative one – other characters have positive opinions); and there’s a story about how Bolton’s popularity affected his life. There are no infringements on trademark or defamation or violations of here. They would have no reason to seek permission.
So how does the example of Todd McFarlane and Tony Twist fit in here? If I remember correctly, and I may not, Twist sued McFarlane for libel over McFarlane having a gangster in his comic book Spawn that was named after Twist.
That was a right of publicity claim, one of the potential problems I listed above. In that case, the Missouri Supreme Court ruled that there was an an unmistakable correlation between the real Tony and the comic book character and that the evidence showed that the character was not merely a creative expression but an attempt to use the hockey player’s identity in order to sell comic books (misappropriation of likeness or image).
The case was appealed to the U.S. Supreme Court on First Amendment grounds, but I believe they declined to review it.
Interestingly enough, the Missouri judge who wrote the decision was Rush Limbaugh’s cousin.
And I forgot to address this before:
You can’t copyright a name. It’s too short. You can only copyright creative works of expression. You might be able to trademark a name, under certain circumstances, as many people have done.