How do you Represent the Deceased in Fiction?

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Q: In a work of fiction, what restrictions exist on using the names of the dead, e.g., JFK, J. Edgar Hoover, etc.? —Thomas W.

A: When writing fiction, it’s generally OK to use the names of deceased people in your work and even create events that didn’t actually happen (Forrest Gump is a good example of this). A person’s right to privacy expires when he dies, and you can no longer be sued for libel.

That doesn’t mean there aren’t other potential obstacles, though. If you write a story about the deceased person that involves other people who are still alive, you open yourself up to litigation. For example, if you write a fictional story about John Lennon (deceased) and invent fictional interactions with his wife, Yoko Ono (still alive upon the writing of this column), and she doesn’t approve of it, you could get sued. Be sure to make the other people in the story fictional, or heavily disguise them so no one can tell who they are. If they have short dark hair, give them long blonde hair. Change their ethnicity. Switch their gender if you can. You get the idea.

Also, if you write about the deceased in a negative light (inventing stories that could damage their reputations), you could get sued by their estates. They may not have much legal ground to stand on—depending on the issues at hand—but such a lawsuit could be very, very costly to you in terms of time and money.

The other legal hurdle you might cross is the person’s right of publicity, which is her right to control the commercial use of her name, likeness and persona. The publicity laws vary from state to state, so you’ll need to contact an intellectual property attorney to get the blow-by-blow on what will and will not fly.

My recommendation is to avoid making any famous person (alive or deceased) a major character in your novel. If you do use famous people in your fiction, keep their parts small and avoid putting them in situations that show them in a negative light. And always make it clear to agents, publishers and readers that your work is indeed fiction.

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