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."