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Writing About Historical Figures

by Jacqui Lipton

A number of authors have asked me recently about legal issues involved in writing about historical figures, whether the project be fiction or nonfiction, and whether there are any intellectual property or other rights that need to be cleared by an author to do so.

The good news is that the answer to this question is generally “no”.

If you’re simply writing a biographical story, even a somewhat fictionalized version of a biographical story, you’re not likely to be infringing any copyrights or trademarks owned by anyone else, unless you copy images or text about the historical figure created by someone else. In those cases, you need the permission of the copyright owner of the earlier work to reproduce their work.

You don’t generally need any permission from the family or estate of a deceased historical figure to write about them, although it’s generally a good idea to try to let them know what you’re doing as a professional courtesy. You never know—they may have valuable insights or information that help you with your work. Even if they don’t, their support may be a plus in terms of marketing and promoting the project.

The United States does have some law that prohibits making a commercial use of a famous person’s name or likeness without their permission (in fact, we also have similar laws for non-famous people). The “famous person” version of the law is generally referred to as the “right of publicity” tort and the non-famous person version comes under the rubric of individual state privacy laws.

Technically, a commercially published book, whether traditionally published or indie published, would be a “commercial use” under these laws. However, when you’re writing about a deceased public figure, you’re less likely to have any legal problems. In most states, the right of publicity laws don’t extend to deceased persons. (They do in some states so you may have to be a little careful about that.) So if you’re writing about someone who’s already dead, you may have less to worry about.

Also, most states allow you to write about public figures regardless of the right of publicity laws because of First Amendment protections. I’m simplifying here, but you can take this as a general rule of thumb, and if you’re worried about a particular project, seek an agent’s or attorney’s advice. The law makes some distinctions between political public figures and celebrities like actors, singers, and sports stars, providing greater leeway for writing about political figures than other celebrities. Of course, some public figures span both categories, creating challenging legal questions, like the current president, or previous California Governor Arnold Schwarzenegger.

The general takeaway is that if you want to write about historical figures, you’re generally safe to do so without seeking anyone’s permission. You’re unlikely to be infringing any legal rights. However, if you are considering using work other people have written or created about the figure in question (say, earlier books or photographs), you may have to obtain a copyright permission from the creators of those earlier works. Additionally, it’s wise to check in with the family of the deceased person, if there are any surviving members, or the estate, to let them know what you’re doing. That’s the safest way to avoid a right of publicity lawsuit, although, as noted above, these lawsuits are rare in practice and typically don’t apply to public figures of historical note. Additionally, if you get the family or estate onside, they may be able to help you with your research or marketing. Apart from anything else, it’s a professional courtesy to let them know what you’re planning, if it’s feasible to do so under the circumstances.

And my usual disclaimer applies to this column as always: Nothing here is intended as legal advice, merely as information and guidance. If you have a particular problem relating to a work about a historical figure, check in with an agent or attorney.

A bit about the columnist:

Jacqui Lipton is a law professor and the director of Authography LLC, a company dedicated to helping authors and artists with legal and business issues. She writes fiction and law books, and holds an MFA in fiction writing from Vermont College of Fine Arts as well as a Ph.D. in law from Cambridge University. She loves reading and writing speculative fiction and is the mother of three children and (apparently) three cats. Visit author page