When to use Historical Domain Character vs No Celebreties Were Harmed?

I've been wondering about this for a few months, and decided to ask here. When writing a story set within the last century and a half, and you get to a part that includes a real person of note, is there some sort of guideline—based on notability or deadness, or some combination of the two, or something else entirely—for when you should treat that person as a Historical Domain Character, and when you should opt to cover your proverbial ass by using a No Celebrities Were Harmed version of them instead (or at least go out of your way to avoid mentioning them by name)?

I doubt there's a hard-and-fast rule, but it'd be helpful to at least have a general rule of thumb to work with.

edited 9th Jul '16 6:20:11 PM by BrokenEye

It depends entirely on what kind of story you want to write and who you think your audience will be. How much historical accuracy do you want?

Up to you, really.

Well, it's a conspiracy theory series, so it'll be relatively accurate to a certain version of history, but... well, you know. A lot of real people show up in conspiracy theories, some of whom are still alive, and they're usually not depicted in a very flattering light. Many of the people involved in these theories are wealthy and powerful, innocent, and/or mentally unstable, and though I'd prefer to use the actual people wherever possible, I also really don't want to get sued and/or shot.

edited 9th Jul '16 10:22:31 PM by BrokenEye

Stick to people who're already dead for quite a while, such as Adolf Hitler (okay maybe a bad example), Abraham Lincoln, Albert Einstein , and other famous characters already played with enough times that you don't come off as offensive or weird?

So how about famous (for want of a better word) clans such as the Rothchilds and the Rockefellers? Some of them are dead, some of them aren't, and it would be kinda weird if the dead ones had fictional descendents instead of their real descendents.

Don't worry too much. Generally speaking, you can't get sued for 'defaming' people who are dead, so legally you should be fine. Someone who died yesterday is fair game in that sense, although obviously people might then say "Too Soon".

Honestly, I don't think that's weird. But I guess if it's a real family where living members are involved in your story idea, it might be easier to just make a fictionalised version.

You really can't get sued for defaming a person in fiction unless you do something really weird.

It also depends on how public a person is. Politicial figures are always fair game. Other public or famous figures, it more depends on how active a role they play in the story. Private individuals you should avoid, dead or alive.

edited 10th Jul '16 9:42:33 AM by war877

Public figures yea, regular everyday people nay. Got it.

"Too Soon" is a whole other challenge that I have to find my way around.

edited 10th Jul '16 3:42:58 PM by BrokenEye

Not in a legal sense, presuming you are in a country with a generic Western legal system. Dead people can't sue.

If you're worried though, one way you might research the specifics of this is to try to find a defamation case in your jurisdiction and look up the specific legislation used in that case, which is often accessible online. That might give you a more concrete idea.

Dead people can sue. There are several structures present specifically to allow that. The reason defamation won't apply in fiction writing, is defamation laws apply only to non-fiction forms of communication.

If there are such structures, they don't exist in my country so I wouldn't know.^note Also I just meant in the context of defamation.

Well, yes. Sorry, didn't mean to give the impression I disagreed.

I guess the distinction I brought up is more useful for non-fiction, my bad.

Maybe not defamation then but, like, rights to their likeness or something? They must sue over something, otherwise No Celebrities Were Harmed wouldn't be a thing.

edited 11th Jul '16 3:12:57 AM by BrokenEye

You are correct. A person's likeness is an entirely different matter. This is in fact a major reason why you should avoid real people if they are private citizens. There are roughly three overlapping categories:

Voluntarily public figure. They gave up their rights to privacy, so you can do what you want with their details, including likeness.

Branded public figure. This one is basically just for actors. As their face is their product, you can get sued if you steal it without paying using cg or whatnot.

Non-public figure. You can rely on precedent here. The unseemly thing to do is to release details that have not already been released. Giving out someone's digits for example is a rather extreme violation of privacy. Giving out their likeness or political opinions depends on if they have given permission first. Them giving the same info out freely can be considered tacit permission. Them actually giving permission is better, though.

A historical character is one where some historians have made the decision for you. If you get sued, you can simply point at the historians and say, you forgot to sue them, and get the case thrown out.

If the dead can sue, usually it will be done either by the state or by the estate on behalf of the dead. However, a person who's dead benefits less from their reputation, so courts are less likely to consider the case.

Could the dead's family benefit though?

Yep. But that would be incredibly unusual in the case of reputation in western culture. Western culture is individualism based.

edited 11th Jul '16 5:55:25 AM by war877

So how about people who are known only for involvement in a very specific historical event, and then really only by aficionados of that particular event? Are they historical figures? I'm pretty sure conspiracy theorists don't count as "historians".

Also, is there a rule of thumb to know whether a public figure is voluntary or branded?

edited 11th Jul '16 3:48:38 PM by BrokenEye

Rule of thumb: Politicians (but not those by birth) are all voluntary. Actors are all branded. Everyone else, is harder to figure out.

I really don't know if it is safe to use someone who is private but known among conspiracy theorists. But the less you use them, the safer. If you just mention their name, that is almost certainly fine. If you describe their appearance and their job, hobbies and habits, you are almost certainly going too far.

Okie dokie