I am contemplating writing a mystery based on an idea that I’ve had for some time. One of the central characters is a real historical figure who has been dead for about 40 years. If I were to create a fictional account of a portion of this persons life in my story, would I be allowed to do so under the law. I know that I could create a fictional character based on this real person but I think it would detract from the story and also be pretty easy to figure out who I was talking about.
In general, anyone who qualifies as a “public figure” is fair game for such treatment (the standards for libel are extremely high even for assertions that are represented as fact, and you are presumably labeling your work as fiction).
I think you’re OK with a long-dead person. Heck, there are plenty of such books around. There’ practically an industry of writing stories in which Sherlock Holmes meets both fictional and real people from his time.
You might get into trouble with real peopl;e. I don’t think Salinger was happy about Kinsella including him in Shoeless Joe. When they filmed it as Field of Dreams they changed the character’s name. James P. Hogan wrote a science fiction time-travel story in which he actually got permission from the characters who were still alive to use them (such as Isaac Asimov). But he used lotsa dead folks without permission.
Generally speaking there is nothing you can’t do with a dead historic personage.
The one exception that might make a difference is that California law allows celebrities’ estates to register for control over uses of their images and characters. This is limited by the need for registration and the first amendment right one has of expression. I know of dozens of stories that use dead Hollywood celebrities in them without problems.
That’s mostly a nitpick, though. History belongs to all of us.
It is legally impossible to libel the dead. You could write a story about Mother Theresa felching the Pope and there’s nothing anyone can do about it. And I for one encourage you to do so.
Nothing prevents you from writing whatever you like about whoever you like. Publishing, you might have a problem with libel if you portray them in ways they (or their estates) don’t like. But simply using a character … what sort of law are you fearing that would be covered by?
The copyright notice in the front of books which have real historical persons as characters usually have a clause that states that the characters are either wholly invented or used in a ficticious manner.
As a person currently writing a novel about a historic person, I would urge you to include a small Afterword which tells where you deviated from history or speculated. You don’t want your readers thinking you are pulling this stuff out of your ass.
and if you check the case law summaries at the bottom:
This is far better protection than I had hoped to be in the language of the law. IANAL but the First Amendment is well served by this. There would seem to be no problems at all with using dead celebrities.
Parallelled, in the Bizarro universe where everything is reversed, by the use of FICTIONAL characters in works of NON-fiction. Like in that Bizarro biography of Ronald Reagan a few years ago. The author fictionally inserted himself in the past of Reagan, where of course he had not been. As I recall, the reviewers were not impressed with this new literary trick.