Use of famous person or character in a novel.

'Is it legal', 'can I do this' type questions and discussions.
Post Reply
MrPunch
Regular Member
Regular Member
Posts: 11
Joined: Thu Mar 22, 2018 6:49 pm

Use of famous person or character in a novel.

Post by MrPunch » Tue Dec 18, 2018 1:21 pm

This is a bit different inasmuch as I'm not including the person as an actual living, breathing character. Think more of a museum full of statues of famous people living or dead, AND recognisable fictional tv characters.
For example: Bruce Forsythe, Two Ronnies, Del Boy from fools and horses, Basil Fawlty and so on.
Would I need to seek permission from the people (for the celebrities) , or rights holders (for fictional characters)?
Full disclosure, although the statues are really set dressing for the story, some may fall down and crush people :)

Secondly, am I allowed to use the personalities short -but well known- phrases such as "nice to see you, to see you, nice", and phrases from fictional characters, such as "Rodney, you plonker" or "Don't mention the war" ?

User avatar
AndyJ
Oracle
Oracle
Posts: 2079
Joined: Fri Jan 29, 2010 12:43 am

Re: Use of famous person or character in a novel.

Post by AndyJ » Tue Dec 18, 2018 4:49 pm

Hi Mr Punch,

I'm not entirely clear about how you intend to 'use' these people (apart from statues of them falling on other people). Let's deal with real people, both living and dead first, then fictional characters.

Real people. In most cases we in the UK are really only concerned with the rights of living people, such as privacy rights, defamation, passing-off etc. So if you named one of your characters Boris Johnson, you would need to ensure that you did not defame the real Boris by libelling or slandering him, or by intruding in unjustifiable way into his private life. However given Mr Johnson's public role you would be able to get away with a great deal more satirical material about him than, say, your next door neighbour (assuming Boris doesn't live next door of course). You can quote Boris and to a certain extent you can misquote him (due to the fair dealing exception for parody); you should avoid appearing to have him endorse a commercial product unless this is obviously satirical, as this might lead to a claim of passing off (see the Eddie Irvine case). However none of this applies to dead people. The dead can't be defamed, and their personal data is no longer protected. The only thing which remains protected (in the UK*) is anything which they wrote or composed during their lifetime and which is still in copyright.

Fictional characters. Here we are more properly in the realm of copyright since fictional characters are created by human authors and so, provided that their characteristics are sufficiently original, such characters will be protected to a degree for the normal copyright period (the author's lifetime plus 70 years). Thus quoting Del Boy at very great length might exceed the fair dealing exception for quotation and so amount to infringement of John Sullivan's copyright. If your Del Boy statue evoked enough of the Del Boy character as written by Mr Sullivan, that might infringe, but it could well be that the parody exception would protect you, even if the staute said nothing. The degree to which non-speech charatcteristics are protected is something of a grey area: clearly some will originate from the pen of the writer, but many others will be down to the performance or physical appearance of the actor.The yardstick by which to judge these things is usually the 'fair' bit of fair dealing. What would a reasonable person say was fair or unfair in the circumstances? On the other hand you can't defame a fictional person, nor can you invade their privacy by anything you, or they, say or do. And the law in UK does not recognise an association between a fictional character and the actor who plays that character. Thus if 'your' Basil Fawlty is made to say something outrageous about the Germans and World War II, John Cleese has no grounds for bringing a complaint. This doctrine does not always apply in the USA (see this case for instance).

I hope this answers your question.

* In some States of the USA and a number of other countries, some so-called publicity rights continue to exist for up to 70 years after a celebrity's death. And in some countries such as France an author's moral rights (eg the right not to have their work or honour treated in derogatory way) exist in perpetuity.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

MrPunch
Regular Member
Regular Member
Posts: 11
Joined: Thu Mar 22, 2018 6:49 pm

Re: Use of famous person or character in a novel.

Post by MrPunch » Wed Jan 02, 2019 2:49 pm

Thanks for your reply.
Fictional characters seems too much of a grey area so the safest approach all round is for me to stick to famous 'dead' celebrities.

You appear to suggest a dead celebrity could endorse a commercial product - did I read that right? Would there not be some cause for complaint from their estate/next of kin? (I'm not going to do this, just curious!)

User avatar
AndyJ
Oracle
Oracle
Posts: 2079
Joined: Fri Jan 29, 2010 12:43 am

Re: Use of famous person or character in a novel.

Post by AndyJ » Thu Jan 03, 2019 6:57 am

Hi Mr Punch,

I suppose that, theoretically, if a deceased celebrity was known for endorsing a product (or products) during their lifetime, then using their name in connection with another unauthorised product after their death could give rise to a passing off claim, since goodwill (one of the ingredients of a passing off claim) would continue to exist for a short time after death. But I'm not aware of a case in the UK where this has ever been argued.

In several states in the USA and a number of other countries, the protection of personality rights continues after death, for example in California it lasts for a further seventy years.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

MrPunch
Regular Member
Regular Member
Posts: 11
Joined: Thu Mar 22, 2018 6:49 pm

Re: Use of famous person or character in a novel.

Post by MrPunch » Mon Jan 07, 2019 4:34 pm

On a related note regarding this question and social media, or more specifically Instagram.

I would like to promote a new novel - a work of satirical fiction. In this fictional future, various TV shows and songs have been banned by the government - and the story refers to old (real life) tv shows and songs that have fallen victim to this law. So, for example, the BBC show 'Open All Hours' is banned because of its mockery of physical impairments. (Ronnie Barker had a stutter)
Or 'Walking On The Moon' by The Police - banned for cultural appropriation (its heavily reggae based)

Question one: I -think- I'm okay using these properties like this in the framework of the novel - I don't go into any further detail than what I've written above, they're all just background insight to the world. Is this okay, do you think?

Second question: Can I use a photo or screenshot of these shows on Instagram, with a quote from the book alongside? Or maybe a photo of a VHS cover of the show and a book quote? Likewise a photo of the cover of The Police single and a book quote alongside. There would be no lyrics mentioned anywhere or actual quotes from the shows.

User avatar
AndyJ
Oracle
Oracle
Posts: 2079
Joined: Fri Jan 29, 2010 12:43 am

Re: Use of famous person or character in a novel.

Post by AndyJ » Mon Jan 07, 2019 7:33 pm

Hi Mr Punch,

I don't think the ideas in your book will pose any copyright problems, firstly because your references to relatively trivial aspects of copyright works (eg the fact that Arkwright in Open All Hours had a stammer) go nowhere close to infringement of the programme, and secondly even if you did directly reference something which was protected by copyright (eg a snippet of the lyrics of a song) this would almost certainly be fair dealing for the purpose of satire/parody.

However the use of Instagram to advertise your book does concern me. I don't think the posting of a still taken from the TV programme, or the photograph on the cover of a single could be justified by either the parody exception or the older section 30(1) use of a copyright work in connection with criticism or review of that or another work, since the Instagram posting does not appear to contain any element of criticism of your own work. Similarly the quotation exception (section 30(1ZA)) also seems inappropriate in the circumstances, although to date we have no caselaw on which to judge how broadly the courts are likely interpret 'quotation' in this context. And of course, for any of the section 30 exceptions to be valid as fair dealing they would need to be accompanied by acknowledgements of the source work. This wouldn't apply to section 30A (parody).
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

MrPunch
Regular Member
Regular Member
Posts: 11
Joined: Thu Mar 22, 2018 6:49 pm

Re: Use of famous person or character in a novel.

Post by MrPunch » Tue Jan 08, 2019 12:24 pm

Ah I kind of came to the same conclusion as I was typing the question, to be honest. I think for the purposes of social media I will stick to something like a generic photo of a vhs tape with a hand scrawled 'Open All Hours' scribbled on the label. Can't see that being controversial.
Thanks for your help as always.

Post Reply