Writing about a real person

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• June 14, 2008 @ 5:22pmMonaco says:

  Hi everyone! I'm new on this board. I'd like to ask you a question, but first, I need to give a little backround.
  
  I want to write about a real person who died some 100 years ago. This person has no direct living descendants (there were 2 children but they didn't have kids; there are no nephews/nieces either). This person did not leave any works. There is no organization looking after this person's legacy. And the story will not defame this person (rather the opposite). This person was not a public servant but was well-known, perhaps too well (numerous articles in the papers, rumors, tales, etc). I want to embelish things that already occured in this person's life. In other words, those are known facts anyway, whether good or bad.
  
  So, the question is:
  
  Do I still need to obtain rights/permission to write about this person, and if yes, then from whom? Can I also make some things up about this person? How much latitude would I have in fictionalizing the reports concerning this person? How historically correct do I have to be about this person? In other words, can I change some things or dates of this person's life?
  
  Thanks!
• June 16, 2008 @ 5:18amksmith says:

  This is not a copyright question at all, since no person can claim any copyright in the facts (or myths) about his or her own life.
  
  In fact, what you want to do is done all the time by novelists. To take a recent example, "The Dante Club" by Matthew Pearl uses Oliver Wendell Holmes and Ralph Waldo Emerson as major characters. All of the "events" in which those characters figure in the novel are wholly fictionalized.
  
  Most states have some legal protection for privacy; "public disclosure of private facts" is one typical tort action, but their are others. In most states, however, these causes of action do not survive past the death of the person in question.
  
  In short, my opinion (not legal advice) is that you do not need to get anyone's permission to do what you suggest.
  
  I should add, although you do not suggest that you intend to do this, that you should not write something that infringes the protected expression (remembering that facts are not protected) about this person's life found in biographies written by others that are still subject to copyright, if any such works exist.
• June 16, 2008 @ 1:44pmRuthDukelow says:

  To add to ksmith's point in the last paragraph: "you should not write something that infringes the protected expression..."
  
  A good example of a situation where a description of an historical event can be infringing on an existing copyright is the lawsuit filed by author Chase-Riboud against the Amistad movie. Ms. Chase-Riboud had written a fictional account of the Amistad event and claimed that Dreamworks based its movie script on her fictionalized account and not completely on historical facts. See: http://www.law.cornell.edu/background/amistad/plaintiff.html
• June 16, 2008 @ 3:11pmksmith says:

  It should probably be noted that in the case about the "Amistad" that Ms. Dukelow cites, the only court decision was a denial of the plaintiff's request for a preliminary injunction because Chase-Riboud could not establish that she was likely to prevail. The court held that the bare outline of characters and events was not sufficient to establish that a copyright that could be infringed even existed. After that ruling, Chase-Ribaud withdrew her suit, apparently as part of a settlement agreement.
  
  See 987 F. Supp. 1222

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