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Celebrities Bite Back! Using Real People in Fiction

from The SFWA Bulletin #160, Winter 2004

Using Real People in Fiction

    The Legal Watch column in the Fall 2003 Authors Guild Bulletin reported on two recent court cases that took nuance to new levels, albeit in opposite directions.

    Eileen Connor warned that "Although celebrities may not trademark their names, case law increasingly recognizes celebrities' property interests in the commercial use of their names, likenesses and personas, and has upheld their right to prevent unauthorized use."

    This is true even for celebrities whose names are ineradicably part of history. A single by the rap group Outkast has the title of "Rosa Parks" even though her name is not mentioned in the lyrics. Her historic fame, however, is referenced in the line, "Everybody move to the back of the bus." In addition, the album, Aquemini, was released with a sticker advertising the "hit single" "Rosa Parks."

    Reversing a district court ruling, the U.S. Court of Appeals, Sixth Circuit ruled in Parks v. LaFace Records, et al. that the package made it clear that OutKast had used Rosa Parks' name for commercial, rather than artistic, goals. "[C]hoosing Rosa Parks' name as the title to the song unquestionably enhanced the song's potential sales…," the court wrote. "[T]he First Amendment cannot permit anyone who cries 'artist' to have carte blanche when it comes to naming and advertising his or her works."

    Even more questionably, from the writer's viewpoint, the court used the profane content of the rest of the lyrics to judge that "this is a song that is clearly antithetical to the qualities identified with Rosa Parks."

    The federal trademark statute popularly known as the Lanham Act had previously been interpreted by the Second Circuit Court to mean that "a work's title is protected under the First Amendment unless it has no artistic relevance to the underlying work, or – if there is artistic relevance – the title explicitly misleads as to its source or content." The Parks case was sent back for trial to determine whether the song title is indeed "artistically relevant."

    The letter of California law may be even more severe, but is being interpreted more loosely, as Elizabeth Zirker discovered in a review of the California Supreme Court decision Winter, et al. v DC Comics. "California law provides that the knowing use of a person's name or likeness in any manner, for economic gain and without permission, creates an action for damages by the injured party. A defense against a 'right of publicity' claim requires proof that the use made of a person's likeness is sufficiently 'transformative' to provide First Amendment protection," she wrote.

    Seeing a comic book series titled Jonah Hex: Riders of the Worm and Such, the well-known albino rockers, brothers Johnny and Edgar Winter, thought that the long-white-haired, red-eyed villains known as the "Autumn Brothers" were clearly created in their likeness.

    Nevertheless, the court ruled that the comic books had not "merely" used the brothers' fame, but had in fact transformed their images to a new form that was sufficiently original in its half-man/half-wormedness.

    "Prominence invites creative comment," the court proclaimed, implying that different rules may apply to celebrities. Any economic loss incurred by the appropriation of a celebrity's likeness, explained Zirker, must be balanced by "whether or not the creativity in the work outweighs the literal or replicative use of the likeness." What's more, "In applying this 'transformative' test, neither the relative sophistication or crudeness of the work nor the degree to which the work is or is not a parody has any bearing on whether the work is protected by the First Amendment."

Sex Is In

    If you hadn't yet noticed, the newest trend in SF is "sexy fantasy." So says SF Book Club editor Andrew Wheeler, quoted in the Fall 2003 Authors Guild Bulletin. The cause of this frenzy is "cross-pollination with the romance genre – romance readers are sometimes moving into the SF/fantasy area, and vice versa, so bits of the genres are influencing each other… Science fiction is between revolutions at the moment. Now that cyberpunk has turned into the real world, it's hard to say which way it will jump next."

Too good not to be shared

    If Fay Weldon can accept money from Bulgari to write The Bulgari Connection, why shouldn't all writers be similarly gifted? Stephanie Bond, in the September 2003 RWR, noted that Canadian author Jim Munroe is striking a blow for writers everywhere. He sent $10 invoices to Hershey's, UPS, McDonald's, Nike, Starbucks, and others for fair compensation for mentioning their products in his novel Everyone in Silico. Sadly, as of her writing, all invoices were past due.

    From the Fall 2003 Authors Guild Bulletin: Ilse Owren, of Norway's Tanum bookstore, reported a distressing trend among Norwegian bookstore browsers: "Certain books, and the pornographic classics in particular, disappear sooner than they should according to sales records." Most frequently stolen? The Story of O. Kagge, the book's Norwegian publisher, is turning lemons into lemonade, reported the Aftenposter tabloid. O's first page now enticingly exclaims, "Norway's most stolen book"!


    Libby Hall provided the annual "ROMStat Report" of romance-publishing sales statistics for 2002 in the October 2003 RWR. For comparison she appended sales for the total popular fiction market (hardcover, trade and mass market paperbacks), a market that reached 652,101,000 units in 2002, a 6% increase.

      Genre Total Units % of Total
      Romance 225,799,000 34.6%
      Mystery/thriller 151,119,000 23.1%
      SF/Fantasy 41,331,000 6.5%
      General fiction 156,897,000 24.1%
      76,955,000 11.8%
      *includes religious, occult, historical, western, male adventure, adult, and movie tie-in

    Note on e-publishing: As part of her search to capture all romance titles published in 2002, Hall checked 279 sites that claimed to e-publish romances. She found that of the 279, "only 25 sites appeared to be legitimate publishers. (Some obviously published only one writer's works or were subsidy publishing or provided links to other sites or hadn't been updated in months or years.)"

Organization, Publication, Address, Web Address

Authors Guild, Bulletin, 31 E. 32nd St. 7th Floor, New York, NY 10016, www.authorsguild.org/

Romance Writers of America, Romance Writers’ Report, 16000 Stuebner Airline Dr., Suite 140, Spring, TX 77379, www.rwanational.org

Copyright 2004 by Steve Carper

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