Using a real person's name in a title.....

Tue, Apr 12 2016 11:12am IST 1
GinnyBitters
GinnyBitters
34 Posts
I have a story with a protagonist who (explicitly) mistakenly believes she is the daughter of a very famous (now deceased) real person. Obviously I don't wish to court contoversy (or do I?), and certainly not legal action. I wonder where a line can be drawn in using such a name/character.

'She' does not appear in the story, a third party spins the child a yarn.......does this seem okay?

I need to get this straight before investing any more time.

All advice gratefully received.

:)

G
x
Tue, Apr 12 2016 11:32am IST 2
BellaM
BellaM
2166 Posts
I've no idea of the legalities but to use a real person's name would, I am sure, spark the interest of living relatives. Particularly if they think you are using the name in the title in order to take advantage/generate sales.

If it is abundantly clear that the third party is spinning a yearn then using a real person's name in the book would probably be fine. Probably. As for a title, I'm sure you'd be safer with something like "The Princess's Daughter" or whatever.
Tue, Apr 12 2016 11:15pm IST 3
Noodledoodle
Noodledoodle
2516 Posts
Personally, I wouldn't. If the person is dead, it may seem OK but you'd have t be certain that the content is benign - you wouldn't want any kind of slander.
Wed, Apr 13 2016 11:07am IST 4
Tony
Tony
2731 Posts
Yes, very dangerous, and the suggestion of a 'secret' child is hardly benign. I doubt any publisher would even consider it, as a title - but then they would probably want to change whatever title you come up with Undecided I'd think of something else if I were you. How about 'Fame' - doesn't matter that it's been used before, as your story would bare no resemblance to the other one.

Cool
Wed, Apr 13 2016 11:43am IST 5
GinnyBitters
GinnyBitters
34 Posts
Thank you all for these comments and the advice contained.

To be clear, there is no suggestion of a 'secret child', or anything at all pertaining to the real person. The name is invoked by the real mother in an attempt to inspire the child (who is adopted by another couple but told via a letter at 18). Telling them that the actress was their mother is a means of inspiration. This is made very explicit.

I am, I admit rather wedded to 'The Daughter of XX'

But dare I?

G
x


Wed, Apr 13 2016 01:29pm IST 6
Scheherazade
Scheherazade
577 Posts
Hi Ginny - if the person's dead you can certainly use their name - in law you can't libel the dead. Of course it may upset any living relatives, which you may not want to do. A few years ago Gordon Burn wrote a novel called Alma Coogan - about the fifties singer and her relatives were none too pleased - but there was nothing they could do.
Thu, Apr 14 2016 12:22am IST 7
GinnyBitters
GinnyBitters
34 Posts
Thank you for these very useful comments. After some thought and Googling I have narrowed the issue down a little.
I feel that the actual content of the story would be fine. The person is only talked of, and even then only in the most complimentary terms.
The issue might be in the use of the name in the title. On the one hand, I believe the name to be trademarked, but for the purposes of physical goods (cosmetics etc)...I wonder if this extends to a title.
On the other hand, I see a number of books using the name - some evidently self-published (10 page 'biographies' etc) which suggests that the use of the name in a book title might not be an issue.
I suppose it all boils down to this latter issue...what a name trademark can cover.

Does anyone have any ideas??

Thank you all once again for your help so far :)

E
x
Fri, Apr 15 2016 11:08am IST 8
Loretta Milan
Loretta Milan
162 Posts
Another option could be to create your own 'famous' star? You could write a character profile for this person, invent historic events, show how treasured this person was to society and how his legacy lives on through your story. You could write with full creative freedom then. May be worth a shot.

Loretta.
Sat, Apr 16 2016 09:53pm IST 9
Philippa
Philippa
1461 Posts
Or what about just using the star's first name, like "The Daughter of Marilyn" (Monroe)? (Or whomever)
Sun, Apr 17 2016 12:24pm IST 10
Flickimp
Flickimp
377 Posts
I like Loretta's idea of creati uyour own fanour star. That way you're not restru icted to what we know. You could go really dark and into directions without any legal backlash. No reason why you can't base it on a multiple merging of 'real life' stars - and then take it elsewhere.
Tue, Jun 21 2016 10:22am IST 11
Bruce Castle
Bruce Castle
7 Posts
2013 Defamation Act.
Remember that you are liable for reputational damage to the estate of a dead celebrity if the defamation potentially leads to a financial loss for the estate.
You can't libel the dead but you can defame their estate and heirs.
Thu, Jun 23 2016 06:34pm IST 12
Aonghus Fallon
Aonghus Fallon
58 Posts
Apparently not, Bruce - although I take your point. I can see relatives of a celebrity being legimately annoyed if they lose revenue as a result of untrue allegations about the deceased.

http://blogs.lexisnexis.co.uk/wipit/can-you-defame-the-dead/

The relevant passage is about halfway down:

'An attempt was made to insert a provision in the Defamation Act 2013 allowing libel actions by relatives of the dead, but it was defeated. Perhaps the fact that an attempt has been made to allow such claims signifies an appetite among some for change, but this will undoubtedly be opposed by the media.'
Thu, Jun 23 2016 07:37pm IST 13
Caducean Whisks
Caducean Whisks
2331 Posts
Aonghus, I wonder if that's purely defamation of the dead - which is not quite the same thing as causing financial harm to an estate and thereby curtailing the income the remaining family derive from it.
There again, you couldn't bring a case of defamation on even the living, if there was no financial detriment to it. I don't think.
MASSIVE DISCLAIMER: I am not a lawyer and have no specialist knowledge in this area. This is only my layman's musing and should not be relied upon.
Cough. Splutter.
That's that, then.
Thu, Jun 23 2016 08:23pm IST 14
EmmaD
EmmaD
3326 Posts
"Remember that you are liable for reputational damage to the estate of a dead celebrity if the defamation potentially leads to a financial loss for the estate."

I'm not a lawyer either, but it seems to me that the circumstances in which a dead person's estate could lose financially by the the dead person being defamed are fairly narrow.

So, if you say or write that -

- a certain dead writer was a hopeless drunk, then the relatives can't sue. It doesn't defame the relatives, and the fact that people now think their dead forebear was a drunk is just their tough luck.

- a certain dead writer didn't legally marry the person always treated as their spouse, then presumably the children could sue for being labelled illegitimate. Unless, of course, you are right. The truth is always an absolute defence against libel/defamation.

- if you say a certain dead writer was a plagiarist, then presumably the estate's revenues would suffer from people no longer buying the books, then the estate could sue. Unless, of course, it's true and you can prove it. But I think the estate would have to prove that sales had dipped, or there was a realistic prospect that they would: under the new, you have to prove "actual or probably harm" much more clearly-

- if you say, for example "Oh, the XXX estate is corrupt", presumably they could sue, as a company or individual can.
Thu, Jun 23 2016 08:25pm IST 15
EmmaD
EmmaD
3326 Posts
What I'm really saying is: as I read it you can only defame the estate or the heirs if you are defaming them for what they do. They can't sue for you defaming the dead writer/sleb/whatever.

Fri, Jun 24 2016 02:12pm IST 16
Bruce Castle
Bruce Castle
7 Posts
"Remember that you are liable for reputational damage to the estate of a dead celebrity if the defamation potentially leads to a financial loss for the estate."

I'm not a lawyer either, but it seems to me that the circumstances in which a dead person's estate could lose financially by the the dead person being defamed are fairly narrow.

I agree that the circumstances and opportunities may be limited but the Act is still relatively untested, and I wouldn't want to be a test case!

For example, I write dead singer X was a plagarist without sufficient proof and it goes viral. X's Cd sales and downloads plummet and it can be correlated to the allegation going viral. Son of X, the inheritor of X's rights, will sue as he has suffered finiancial loss. Even if they didn't win the case still had legs and I would be ruined financially by the legal costs.

Sat, Jun 25 2016 12:53pm IST 17
EmmaD
EmmaD
3326 Posts
Yes, as I said:

- if you say a certain dead writer was a plagiarist, then presumably the estate's revenues would suffer from people no longer buying the books, then the estate could sue. Unless, of course, it's true and you can prove it. But I think the estate would have to prove that sales had dipped, or there was a realistic prospect that they would: under the new, you have to prove "actual or probably harm" much more clearly-

- if you say, for example "Oh, the XXX estate is corrupt", presumably they could sue, as a company or individual can.
But it does have to defame things the estate owns - i.e. the works - and the estate itself. Defaming the dead person in ways which don't present actual or probable (not, since 2013, possible) harm to how the works are perceived.

And certainly the original questioner's problem isn't covered by this. If it's made explicit in the book that the character is mistaken, I don't think the dead star's estate would have a leg to stand on.

Having said that, publishers are jointly liaible with the writer for defamation, so they are understandably cautious about taking these things on, and as I think someone said upthread, would perhaps insist on the book being read for libel, or simply avoid it altogether if they're not keen enough in other ways on the book to reckon the costs and risks are worth i.
Sun, Jun 26 2016 08:48am IST 18
Bruce Castle
Bruce Castle
7 Posts
I was only agreeing with you! The "Serious Harm Test" means you have demonstrate something concrete, not just a feeling.

However… it is more complex. I found this story:
http://www.theguardian.com/media/media-blog/2014/feb/18/defaming-dead-relatives-european-ruling-right-sue

Article 8 of European Convention on Human Rights means that the family can pursue a claim based on purely emotional hurt. I probably have to point out the European Court of Human Rights and The Human Right Act have nothing to do with the EU, rather they result from membership of The Council of Europe, some 47 nations including Russia. The cited case was Ukranian.
https://en.wikipedia.org/wiki/European_Court_of_Human_Rights

To the OP: to be on the safe side you prabably need to make it clear straight away the maternity claim is a myth. Not leave it until the end as a revelation. I would guess the chances of being sued are near to zero, but publishers are risk averse.
Tue, Apr 4 2017 06:14pm IST 19
Joyful
Joyful
45 Posts
Dear Bruce Sorry I've just noticed your name so have to ask - are you from Tottenham????????? Mum used to wheel me through the park when I was a toddler. Trust I haven't busted the 'flow'.......... Joyful

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