I’m often asked by writers and producers if it’s okay to talk about real people in a book, film, or other creative project - if the names are changed.
Changing the Names Is Not Sufficient
“Do the names need to be changed?” is not the best question. The more relevant question is whether the real people mentioned in your creative work are identifiable. You can identify someone even without using the person’s real name. For example, your readers or viewers might be able to identify the person through your mention of a nickname, geographic location, physical description, personality trait, or real-life events in which the person was involved.
If readers and viewers can identify the person discussed in your work, there is potential risk for defamation, privacy, and related claims. You should assess that risk and make your best efforts to minimize it.
Calculating the Risk of Using Real People
Your risk assessment will depend on several factors such as
- How did you acquire the information about the person?
- Are you adding fictional elements to any of the real-life events discussed?
- Are the portrayals flattering?
- Are the portrayals accurate?
Your risk assessment also depends on whether the people in your story are public figures or private individuals. Public figures have fewer privacy rights but stronger publicity rights. Also, to make a successful defamation claim, public figures must prove you made the false statement with actual malice. In contrast, a private individual need only prove you were negligent in making the false statement. While the distinction between actual malice versus negligence may sound like legal gobbledygook, the distinction often plays a pivotal role between winning and losing a defamation lawsuit.
My book, The Permission Seeker’s Guide Through the Legal Jungle, offers an in-depth discussion of defamation and privacy issues from the perspective of authors and other creative producers who want to stay out of trouble. The book also offers guidelines for minimizing the risk of defamation, privacy and similar claims through the use of annotated manuscripts, disclaimers, releases, and life story rights agreements. You can view the full table of contents for The Permission Seeker's Guide Through the Legal Jungle here.
