If I were to publish some bit of fiction wherein the villian, a serial killer, turned out to be Demi Moore, I’m certain that I would hear from her lawyers.
Likewise, a similar tale which casts the recently deceased Dr. Atkins in the role of a maniacal mass murderer would probably earn me a lawsuit from his estate.
Yet, a story which features Rene Descartes (d. 1650) as the homocidal madman would probably receive no worse punishment than the occasional “well, that’s stupid.”
So, how long ago must someone have died before I can begin lawfully lying about them?
Long enough that noone really cares anymore. I understand that there are still people who defend Captain Bligh (of Mutiny on the Bounty fame) and insist that he was really a nice, kindhearted guy and wasn’t really the tyrannical asshole that he’s remembered as. I don’t know if they could sue you if you decided to remake Bounty, but they’d probably complain.
Bligh has been seriously maligned by the films and other popular accounts of the Bounty mutiny. He was not the martinet that those stories have depicted. He was far more enlightened than most contemporary British naval commanders (he rarely used flogging and other forms of corporal punishment common at the time) and in saving his fellow victims of the mutiny performed what is arguably one of the greatest acts of seamanship in history: navigating an overloaded open boat through 4,500 miles of ocean with no charts, using only his memory of the Pacific, and without losing a single man. The cause of the mutiny seems to have been that the Admiralty failed to provide him with a corps of Marines to maintain discipline, as most other ships of the day had.
Sometimes it’s hard to libel the living. A summary from Court TV: In 1983, Hustler publisher Larry Flynt prints a satrical ad, claiming the Rev. Jerry Falwell had sex with his mother; Falwell files a libel suit against Flynt, alleging libel, emotional distress, and invasion of privacy. In 1984, Jerry Falwell’s libel suit against Larry Flynt came to trial. Falwell lost. The case is appealed and reaches the Supreme Court. It voted unanimously in favor of Flynt. In a decision written by Chief Justice Rehnquist, the Court rules:
Is it illegal to write fiction about real people? Does it help if you put a big disclaimer saying “AFAIK Demi’s a lovely person, this work is purely fiction”? How about if it’s clearly satire? Or “Demi is entirely fictional, it’s just an unfortunate coincidence that she shares a name with Demi”?
This used to be so clear-cut, but (like the other tenet of parody not being a breach of copyright) it’s being increasingly eroded if there’s someone living who’s offended and rich enough to litigate.
In Flynt’s case, he was arguing about the “right to parody,” basically the right to make fun of public figures.
Falwell countered by demonstrating that Flynt had published a picture of Falwell alongside an article claiming to be an interview with Falwell in which, IIRC, Falwell claimed to have had sex with his mother. I do recall that the article claimed Falwell had had a LOT of illicit sex.
Falwell won, hands down, in the first round, simply because it appeared to be libel, plain and simple. Furthermore, it could well be interpreted as an attack, in print, with malice aforethought – a major no-no in journalistic circles.
It got overturned because only the dumbest hicks could possibly believe that Jerry Falwell would give *Hustler * magazine an interview in the first place, much less admit to porking anything that moves in said interview.
In short, it falls under the same parodic protection that allows guys like Ben Sargent and Oliphant to make money publishing unflattering cartoons featuring major politicians.
One should point out, though, that the only reason the case made it as far as it did was because both the plaintiff and the defendant had a LOT of money to spend on lawyers… and both had a major axe to grind.
If one is going to do this, it behooves one to pick one’s targets carefully…
Libel/slander would not appear to be the correct claim, as a work of fiction makes no obvious claims about the real person, i.e., you’re not claiming Demi Moore really is a serial killer. More likely is that you’d face some version of an invasion of privacy or right of publicity suit–a claim that you’re wrongly appropriating Demi Moore’s persona for your personal gain.
State laws on such claims vary, but Ms. Moore would probably have a strong case.
There’s always The Confession of O.J. Simpson by David Bender. In the book, O.J. confesses to the murders and settles the civil suit against him. The book is prominently labeled “A Work Of Fiction”, so apparently, this protects the author against accusations of libel.
Yes, you can write fiction about real people. Example: Robert Coover’s The Public Burning, one of the main characters being Richard Nixon (still alive at the time).
You can’t libel the dead, and in the US it’s very hard to libel anyone considered a public figure. The libelled person has to show flagrent disregard for the truth, and, at the same time, there must be a false statment of fact, not an opinion. If the author says the work of fiction is his opinion of the character, it’s not libel.
For instance, in the Falwell case above, Falwell alleged Flynt made a false statement of fact. However, if Flynt had written “I think Falwell is the kind of person who sleeps with his mother,” that would be an opinion and not libellous. Note Falwell alleged Flynt printed the “interview” with him as fact, whereas Flynt was able to indicate that it was not printed as fact and that any reader would know it was fiction.
Shoeless Joe by W.P. Kinsella (turned into the movie Field of Dreams), in which J.D. Salinger plays quite a prominent role. Interestingly, in the movie version, Salinger was replaced with a fictional author character.
You can’t libel the dead, but there are ways around it. If you make a false statement, you may be held liable for torts other than libel. Under UK law, if you deliberately, or carelessly make a false statement, and someone suffers loss as a result of your statement, you can be sued for negligent misstatement or malicious falsehood. I’ll guess that the US has similar laws. Note that there would have to be proof of actual financial damage to the estate, mere loss of reputation would not be enough. This is usually used in disputes between rival traders, where one has made statements that harms the other’s business, but it has been used as a cheaper alternative to libel.