Basing Characters On Real People: Fair Game?

by Will Viharo

​Every writer needs inspiration for his or her work. Many of us draw from our own life experiences.
 
This may mean friends and family may provide fictional fodder, whether they know it – much less like it – or not.
 
Your creative decisions may also create unnecessary tension with loved ones (or even unloved ones). But does it cross any ethical or legal lines?
 
Depends on who is standing on the other side of that line…

Pop legend Carly Simon’s 1972 hit “You’re So Vain” was not only popular, but it was also controversial, since many listeners and critics avidly speculated exactly which one of her former flames was the secret subject of the song.
 
Mega movie star and notorious ladies' man Warren Beatty publicly assumed she was referring to him, and while she didn’t exactly deny it, she didn’t confirm it either. Obviously this guessing game provided perpetual gossip fodder, keeping the song alive in the public, pop cultural consciousness long after it final fell off the charts.
 
After denying rumors it was about her famous ex-beaus James Taylor and Mick Jagger, while promoting her memoir Simon finally confirmed that the second verse – “you probably think this song is about you” – was actually directed at Beatty.
 
However, the rest of the song’s dedication remains her secret – except, reportedly, to Taylor Swift, who said Simon once confided in her the song’s actual mystery man.
 
Other famous cases are not so much fun.
 
The Scarlett Letters
 
In 2014, actress Scarlett Johansson actually sued a French novelist, Grégoire Delacourt, because he allegedly based the main character of his book La Premiere Chose qu'On Regarde (The First Thing We Look At), a vain super-model, on the star. While the author and publisher made it clear the similarities were purely imaginary, and not meant to be interpreted as thinly disguised pseudo-documentary or parody, or even a tribute, Johansson took formal offense and acted accordingly.
 
The judge in the case ultimately ruled against the actress on all but one point, wherein a certain section was deemed defamatory and too obviously a reference to her personal life. Instead of blocking the book’s publication, it is being translated into English for American release very soon. It may even become a movie. So there’s nothing she can do about it. She will not be “avenged” after all. The author is cleverly exploiting her lucrative reputation for his own professional gain, and apparently getting away with it.
 
If it were me, though, I’d hate having Scarlett Johansson hate me. It just wouldn’t be worth it. I’m too big a fan of hers.
 
Keep That Mirror Clean
 
The moral of both these stories? If you’re going to base any of your characters on actual people –  no matter how low your authorial profile may be, much less the notoriety of these unauthorized doppelgangers – you need to tread carefully.
 
Unless you’re openly using a public domain fictional character, you should always post a disclaimers on the copyright/credits page of your book. The actual wording can vary somewhat, but the meaning should remain crystal clear as a matter of self-protection.
 
For example:
 
Memoir/Historical Biography
This is a work of creative nonfiction. The events are portrayed to the best of  the author’s memory. While all the stories in this book are true, some names and identifying details have been changed to protect the privacy of the people involved.
 
Fiction
This is a work of fiction. Names, characters, places, events and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.

That addresses the legal aspect. And whatever you do, do not base your character on Scarlett Johansson. In fact, though celebrities are fair games when it comes to most instances of satire, in fictional portrayals any qualities considered unflattering or damaging to their brand name may result in a lawsuit, depending.
 
Better to stick with dead celebrities that have no current legal representation. Or fan fiction, which itself walks a tricky border between “fair use” and copyright infringement - which can backfire on anyone, even you.
 
Sometimes a Right Can Be Wrong
 
Morally speaking, when it comes to basing characters on ordinary non-famous people in your everyday life, from your childhood, etc., it’s always wise to treat them with the same respect you would someone that could actually wind up suing you. Because for one thing, they just might.
 
But beyond that, no one wants to read something that seems more like a sustained grudge than a work of art. There is a big difference between a diatribe and a narrative. And any savvy reader can spot the difference instantly.
 
Whatever you write, make it true, not only to yourself, but also to the people and incidents that influenced it, even if you’re tweaking it beyond recognition.
 
Especially if it’s someone whose respect you’d like to keep.

PHOTO: ALAN LIGHT