Questions about real people and fictional characters in novels

Question

I was wondering if any legal experts can give me any advice about how much freedom a writer has to refer to real people and places in a fictional work and in what situations it's best to get permission or avoid it altogether.

I do know that the chances of these people/place representatives even reading the reference are very slim, but in theory, let's say you ended up writing a best-seller, what would happen in these situations:

1. Can you reference the name of a real hotel in a novel such as the Plaza, NY. without asking for permission? Nothing negative is written about the hotel. We just know the scene takes place in front of it. Should you get permission to mention them first, or is it not necessary?

2. People: I know you can mention a famous person in a novel, but what about if you added a negative spin to that person:

E.g. You're acting like Oprah Winfrey on crack.

He looks like Bruce Willis without the creepy stare.

She looks like a Rosie O'Donnell before she put on the pounds.

Could those people sue in theory if they thought you were depicting them negatively? I'm thinking in particular about the Winfrey on crack line? Are they fair game as being in the public eye?

3. You can't put a fictional character like Chewbacca in your book obviously, but can you just reference such a character.

E.g. My ex-wife looks like Chewbacca after a good shave. Or how about: He did a Sherlock Holmes on the filing cabinet. Could the company that owns the rights to the Sherlock Holmes/Star Wars franchise have a problem with such a line or is that just extremely unrealistic?

I know that the chances of a book being successful enough for the parties in question to even know about the reference to them are very slim, but any feedback from anyone with knowledge of such matters would be greatly appreciated!

Answer 1

Pretty much anyone can sue, at any time, for any thing. In some cases they win and in others they don't.

So when I am writing a book, the safest case is to avoid including real persons or businesses, and certainly avoid saying anything untruthful, trying to take advantage of publicity rights (e.g. naming my book after a celebrity or including a famous hotel name in the blurb on the back without permission), using trademarked terms, quoting copyrighted works, etc...

It gets safer as you get toward major political figures. For example, talking about Donald Trump's hair or Barack Obama's ears is not going to get you into trouble. Political speech lies at the core of protections on free speech.

And it is all fine with permission. If you are writing a self-help or business skills book, for example, you may find plenty of people who are happy to talk to you and give you permission.

If the question is only when do you win the lawsuit, then read up on defamation law, trademark law, copyright law, and publicity rights. But realistically, it's better to just avoid mentioning a real person or business.

I would also point out that unless you are amazing at writing in a particular style, there is a high probability that a fictional work will be more accessible and timeless if you describe events without extensive contemporary pop culture references. Look at your favorite books and see how often they are used.

If you ever get a contract with a major publishing house their legal department will review the book and decide what should be changed, etc... And if you ever self-publish you will be making a contract with Amazon, Lightning Source, Ingram, or others that you own or have permission to use all of the Intellectual Property.

Bottom line: writing most books is something writers do for fun. (Or to boost a resume or client confidence if it's a book in a field they work in.) We should enjoy the storytelling, but shy away from the legal stuff that adds risk, expense, or time unless there's profit potential.