I was wondering 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:
Designer Brands. I image that "she wore a Gucci dress" is clearly not an issue.
How about if your hero drives a Mercedes that has engine failure. In theory, could Mercedes have an issue with that or is that just highly unlikely?
I imagine referring to public national parks is not an issue.
How about if the Plaza Hotel in New York is the perfect back-drop for a scene. Nothing negative is written about the hotel. We just know the scene takes place there. Should you get permission to mention them first, or is it not necessary? Is it best to just not give the name of the hotel to play it safe?
Imagine your character is a university professor at NYU. He teaches English Lit. and Gender Studies. Let's imagine that NYU wouldn't allow a professor to teach two subjects like that. Could they take issue with the idea?
I imagine mentioning Google, Google Map, Hotmail and things of that nature is perfectly fine?
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 skinny Rosie O'Donnell.
OR:
All these Hamptons housewives are on Ritalin. All these Wall Street bankers are on coke. (not famous but about a set group of people)
How about if a character has "had way too much Botox and looks like a frozen mannequin". Could Botox take issue, even though this is a common complaint about how certain people look?
How about if a character takes a prescription drug like Ketamine or Oxycodone "which turn him into a lazy, dysfunctional asshole". Could the pharma company that owns the drug take issue?
Yes, 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 writers/copy-editors with experience in this area would be greatly appreciated!
Answer
I am not a lawyer, this is my non-professional opinion on the matter, and while the information is true and correct to the best of my knowledge it should not be relied upon in legal matters.
In the United States (Which I assume you're writing about as the question is in fluent American English and your references are very American), quips like you illustrate are pretty safe, for a combination of several things:
- In all cases, there must be a "tort" or harm caused for a lawsuit to be valid. If the plaintiff cannot put a dollar value on the damage your actions caused, then there is no damage, legally.
- This isn't a 100% complete or accurate statement as is; there are situations in which an action is subject to punitive damages by law even if the plaintiff has suffered no calculable monetary harm. Lawsuits can also seek "unspecified damages" and provide evidence of the extent of the harm, and let the jury decide a dollar figure. This is the main reason I'd run your statements and their context past an actual lawyer.
- Hustler Magazine, Inc. et al. v. Jerry Falwell. The Supreme Court, in reversing a lower court's awarding of damages for emotional distress stemming from a satirical publication, stated that in order for a "public figure" to prevail in a libel or defamation suit, the plaintiff must show that the publication contains a false statement of purported fact made with actual malice, that is, with knowledge of its falsehood or with reckless disregard for the truth or falsehood of the statement. This was established law dating back to 1964 with New York Times v Sullivan.
- Fiction, by definition, is nonfactual and therefore the inclusion of potentially disparaging information or references are understood by the courts to not be an intentional or reckless attempt to discredit the referenced entity in real life.
- De minimis non curat lex. Literally "of the smallest, no care from the law". In more modern parlance, "don't sweat the small stuff". It's a legal doctrine forming the basis for things like minimum damages required to file a claim in various courts (inflation's made most of these meaningless, but the fastest way to piss off a Federal district judge is to file a $50 claim in his court). A small quip like the examples in the bottom half of your question are unlikely to be seen as causing sufficient damage to the possessions, means or reputation of the person you name to be worth the expense and further negative publicity involved in hauling you in front of a judge.
- References to brands by name as a symbol for their product, even in disparaging terms like a Mercedes breaking down, are considered fair use in most forms of literature, and in most situations the business considers it free publicity that you used their brand name, e.g. Gucci, over others like Coach, DKNY, Prada, Louis Vitton, etc.
- Parody and satire, or the humorous use of references to people, places, or things in a potentially disparaging way, is generally protected speech, shielding against both disparaging speech and use of copyrighted or trademarked intellectual property (it's how South Park and The Daily Show get away with, well, practically everything they air).
- Disparaging comments about weight, physical appearance, personality etc. are subjective and thus opinion-based, which anyone may freely express about anyone else under the First Amendment. You'll get in trouble if you venture toward gender, race, religion or other "protected statuses", however if the intention is to poke fun, it remains satire.
- The truth is not libel (or slander) in the United States. Rosie O'Donnell recently showcased her 50-lb weight loss from bariatric surgery. Before that weight loss, it was published that she weighed 237 pounds, and her height of 5'7" places her, by most BMI charts, firmly in the "extremely obese" category. Even 50 pounds lighter for the same height, she's considered "obese". Thesaurus.com's second synonym entry for "obese" is "fat". Say what you want about the BMI system, it's used by the AMA and therefore pretty solid for you to use to imply (or openly state) that Rosie O'Donnell is fat. By the same token, Mercedes-Benz would have to prove the negative (that their cars never break down) in order to successfully claim that your fictional account of a Benz breaking down is a representative falsehood causing them damage.
- Be careful relying on this in other jurisdictions. Most U.S. states and the Federal system require the plaintiff to prove the statement is false if the plaintiff is a "public figure" (defined as "anyone who has gained prominence in the community as a result of his or her name or exploits, whether willingly or unwillingly"). However, not all states do, and fewer states require it in lawsuits not involving a public figure; your next door neighbor does not necessarily have to prove your statement was false to prevail in court for defamation. In addition, British legal precedent on defamation is that making a disparaging statement about someone else, even if true, must have some "higher purpose" than simply to defame the person. If your book contains defaming statements about Kate Middleton made for the sole purpose of poking fun, and is made available in Britain (even electronically), the Royal Family could in theory file suit against you and your publisher in British court, and win. Some U.S. states, but not all and not at the Federal level, have laws shielding you from this kind of "libel tourism", but you might find yourself unable to visit Britain or even change planes at Heathrow for some time.
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