Lots of discussion online and a million websites to give you hints, but I just found a new one (new to me, anyway). At my son-in-law's graduation from law school yesterday I was browsing the list of the 300+ members of hiss class, and there you have it: a ready-made list from which you can pick and match to your heart's content. Plus, names from all over the world for whatever flavor your character has.
bb
There is another thread that has some useful suggestions about where authors get their character's names. One issue with this approach is if it is advisable to name a character after a real person. It may depend on how distinctive the name is and if there is anything actionable about what the character does in the story. I am not a lawyer, nor do I play one on TV, but it might be awkward to defend a suit against an author who deliberately picked the name of a real person.
it might be awkward to defend a suit against an author who deliberately picked the name of a real person.
Right, that's always part of the discussion, but absent some really really odd situation, the whole "any resemblance is entirely coincidental blah blah" disclaimer language will take care of that. And then there's always the parody defense ... etc., etc.
Now about the novel I'm thinking about, the one where the serial killer is Donald Trumpet, we might be able to test the proposition ...
bb
Now about the novel I'm thinking about, the one where the serial killer is Donald Trumpet
Try Donald Drumpf (The Donald's grandfather changed the family name from Drumpf to Trump) if you really want to create a test case. Fewer people will recognize it, but it has a stronger connection to Donald Trump.
You could write a story about Bridge players and one character named Donald Notrump.
(After considerable thought, almost a minute or two) Other characters could be Sam Spade, Gary Heart, Neil Diamond and Club Soda.
The key to names is targeting them, which you've done for the elusive teenage/early adult demographic, and getting names which fit well as a whole (i.e. Not Demona Jones!). Your method works well on both counts, though I'm not sure I'd advice every 60-year-old author to start hanging around high-school graduations hoping to score a graduate list (it'll give us even more of a bad reputation!). 'D
@richardshagrin
There is another thread that has some useful suggestions about where authors get their character's names. One issue with this approach is if it is advisable to name a character after a real person. It may depend on how distinctive the name is and if there is anything actionable about what the character does in the story. I am not a lawyer, nor do I play one on TV, but it might be awkward to defend a suit against an author who deliberately picked the name of a real person.
Someone might take personal offense, but they don't have a legal leg to stand on. No one owns a copyright on their name, and for good reason, because then they could sue someone else who held the same name for the last 80 years.
I had a friend (friend of my fathers) who took an infamous TV show to court because he had a very distinctive name (T.J. Hooker). Despite his being only one of 3 men with that name in the entire U.S., the judge tossed it out of court in no time.
Someone might take personal offense, but they don't have a legal leg to stand on.
Actually, they might. California has a personal right of publicity that gives individuals a property right in their name and image.
The Minnesota state legislature is currently considering a similar law that would
An individual has a property right in the use of that individual's name, voice, signature, photograph, and likeness in any medium in any manner. The[se] rights are freely assignable and licensable and do not expire upon the death of the individual so protected, whether or not the rights were commercially exploited by the individual during the individual's lifetime. The rights are descendible to the executors, assigns, heirs, or devisees of the individual so protected by this section. …
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/11/the-prince-protection-act/
Actually, they might. California has a personal right of publicity that gives individuals a property right in their name and image.
That means that the media (i.e. internet and pseudo-news 'celebrity' organization) can't run disparaging photos of people just because they can be observed from outdoors. But again, proving that you, John Smith, have an exclusive right to your name, and that no one else can use it in any manner, simply won't hold up in court. After all, in writing fiction, you're not writing about any particular John Smith, but a purely fictitious character.
But really, how many people use the name "Prince"? If you write a story about him, everyone knows who you're talking about. But change it to "The Paisley Prince" and you're fine.
But again, proving that you, John Smith, have an exclusive right to your name, and that no one else can use it in any manner, simply won't hold up in court. After all, in writing fiction, you're not writing about any particular John Smith, but a purely fictitious character.
For John Smith, your probably right, but John Smith is a rather common name. Someone with a more distinctive name might be a different matter.
And as to the law it self holding up, several commenters on the article I linked to who are familiar with CA law say the proposed Minnesota law is nearly a carbon copy of the CA law and the CA law has been held up in court.
There are some recognized fair use exceptions in the law, but fiction isn't among them.
It is deemed a fair use and no violation of an individual's rights if the use of a name, voice, signature, photograph, or likeness is in connection with a news, public affairs, or sports broadcast or account.
Oh, you should know that the author of the article I linked to is a law professor and an expert in intellectual property law.
David G. Post taught intellectual property and Internet law at Temple and Georgetown Law Schools, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford). He is currently is a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.
While he criticizes the law on policy grounds, he does not make an argument that the law is likely to be overturned.
And as to the law it self holding up, several commenters on the article I linked to who are familiar with CA law say the proposed Minnesota law is nearly a carbon copy of the CA law and the CA law has been held up in court.
Again, we're referring to two different laws. My theoretical issue is the right to publish using a fictitious name (i.e. not a well-known celebrity). The law you're referencing regards posting photos and the identity of celebrities on celebrity websites and newspapers. I doubt there's any crossover between the two because one's real and the other is entirely made up.
I'm not worried about this law being applied to fiction. What I'm more concerned with is the law that Donald Trump proposed. It's unlikely he could ever get it passed, but if he does, most Newspapers would go out of business because it's focused on libel--long an issue that politicians love to censor!
The law you're referencing regards posting photos and the identity of celebrities on celebrity
You are incorrect. It applies just as much to John Doe as it does to the best known celebrities.
whether or not the rights were commercially exploited by the individual during the individual's lifetime.
In other words, there is no requirement that the plaintiff has commercially exploited his name, the plaintiff need not be a celebrity.
I doubt there's any crossover between the two because one's real and the other is entirely made up.
An author of fiction who is deliberately selecting the name of real people to use for his / her stories could well run afoul of this law if either the author or the person whose name the author uses lives in California.
ETA: I know you don't do this, but at least one other author who posted on this thread mentioned doing so.
An author of fiction who is deliberately selecting the name of real people to use for his / her stories could well run afoul of this law if either the author or the person whose name the author uses lives in California.
With the exception of a name such as "Prince," I'm having trouble imagining how the living person with the same name as a character in the novel would have any claim at all against the author. He'd have to show the use of the name referred to him, and not to a fictional character with the same name.
As far as my original comment goes, there's 330 or so names on that commencement list, and if you take a first name from here and a family name from there, it's hard to see how anyone would know where the new name came from. Plus, of course, it would be a *new* name, and not the name of a real individual.
Full disclosure: When I start to post Redemption in a week or so, at first glance you might think several of the characters represent real people. For the record, I can assure you they don't. They are fiction.
bb
He'd have to show the use of the name referred to him, and not to a fictional character with the same name.
The way the law is worded I wouldn't be so confident of that. The CA law gives anyone a proprietary right to the use of their name for any purpose. Using the name for a fictional character not otherwise based on the real person may still count.
As far as my original comment goes, there's 330 or so names on that commencement list, and if you take a first name from here and a family name from there, it's hard to see how anyone would know where the new name came from.
That would likely be safe but it's not the way I read your original comment on the matter.
The way the law is worded I wouldn't be so confident of that. The CA law gives anyone a proprietary right to the use of their name for any purpose.
Since this is all latrine lawyering, I'll just add this: "John Smith," or "Candace Rose DesBaillets" (one of the names on the commencement list) do not have the right to control the use of those words everywhere. In the case of "John Smith," the proposition is absurd, given how many people have that name. "Candace R D" may be more rare.
I know, laws can be absurd or illogical, but in this case I'm not troubled by any possible legal or other claim by someone with the same name as one of my characters.
Finally, would it be too embarrassing if I pointed out the chances of any of our works reaching a wide enough audience for this to matter are pretty slim? (Unless, of course, you mail out targeted copies.)
bb
I know, laws can be absurd or illogical
Especially in CA.
Finally, would it be too embarrassing if I pointed out the chances of any of our works reaching a wide enough audience for this to matter are pretty slim?
No. The risk may be low, but it is real. The safest course is to avoid using the full names of real people for fictional characters unless the name is common, such as John Smith.
You are incorrect. It applies just as much to John Doe as it does to the best known celebrities.
If that's the case, it will never hold up on appeal. There's a huge demand for protection from overly aggressive sellers of personal information, but there's also 200+ years of legal protections for literature. If the legislatures were careful, they'd create latitude for the one while crafting legislature for the other. If not, then the entire legislation will eventually go down the tubes.
In other words, there is no requirement that the plaintiff has commercially exploited his name, the plaintiff need not be a celebrity.
If that's the case, then there is NO legal basis for either works of literature or fact based reporting. Either everything is a fluff piece or it's flat-out against the law.
If I have to get legal authorization for every single John J. Smith in the entire continental U.S., or anyone who has ever visited or lived there before I can legally publish a book, then no books will ever be written in the future. Somehow, as ineffective as most politicians are, I doubt any of that are that ignorant of the existing legal precedents!
I know you don't do this, but at least one other author who posted on this thread mentioned doing so.
No, I very much use 'real names' if it fits a story, however, none of those characters are based on anyone, either real or imagined. Instead I pick names arbitrarily, and I create characters from a variety of characters to highlight certain characteristics.
I understand why there's a need for such laws, but if this law is as broad as you're insisting it is, it won't last longer than a year or two, at the utmost.
Actually, they might. California has a personal right of publicity that gives individuals a property right in their name and image.
You're confusing the right to personal privacy with copyright law, assuming that anyone can copyright their names without first having to convince a judge there's a legal basis to grant a copyright in the first place. Again, there's ZERO basis for such a law in legal precedent!
@Ernest
I'm not too sure, but I think it may have been in Canada, and the laws were such that the local firm's registered business name was close enough the international firm couldn't use their name in the anywhere in the province because the local guy had the name tied up.
It doesn't really matter where it was as those are standard copyright restrictions. Apple is currently fighting for the name "iPhone" in China, because another company copyrighted the name years ago in a local province--despite "iPhone" have NO meaning of any kind in Chinese! But you can't demand the retroactive implementation of copyright over existing legal businesses. But again, that's copyright law and not privacy law (which is an entirely new field). In such cases, existing law always takes precedence over new, largely undefined laws!
Frankly, DS, I don't care what you read on the 'internet', but you're conflating different laws which have no basis on each other. Privacy concerns individuals access to their own information, while copyright restricts who can use corporate names. You don't seem to understand the limits of either law, so until I can read the bill once it's officially the law of the land, I'm skeptical of your supposed claims.
I understand why there's a need for such laws, but if this law is as broad as you're insisting it is, it won't last longer than a year or two, at the utmost.
Nope, the CA law has been around for decades, and it has been upheld on appeal.
You're confusing the right to personal privacy with copyright law, assuming that anyone can copyright their names without first having to convince a judge there's a legal basis to grant a copyright in the first place. Again, there's ZERO basis for such a law in legal precedent!
No, I am not. CA has a law separate from either privacy or copyright that gives people proprietary property rights to their names.
Again, their is a legal basis for it, because it exists and has been upheld on appeal. There are exemptions for news coverage and issues of public concern, but that's about is.
Frankly, DS, I don't care what you read on the 'internet', but you're conflating different laws which have no basis on each other. Privacy concerns individuals access to their own information, while copyright restricts who can use corporate names.
I am not confusing either of those things. I am talking about different law separate from either of those things you think I am confusing.
The information comes from a blog written by a group of law professors.
You can read the CA law here: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3344-3346
The Minnesota bill is here: http://www.rightofpublicityroadmap.com/sites/rightofpublicityroadmap.com/files/pdfs/minnesota_pmrop_bill.pdf
No, I am not. CA has a law separate from either privacy or copyright that gives people proprietary property rights to their names.
Here's part of the first sentence of the section of law cited in your link:
3344. (a) Any person who knowingly uses another's name, voice,
signature, photograph, or likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods or services,
without such person's prior consent ...
I'm betting that using a name that is the same as the name of a living person for a character in a work of fiction does not constitute advertising or selling or soliciting, etc. stuff.
But I bet you'd have a hard name persuading anyone if your novel starred a singer named Beyoncé who just produced an album and a song titled---wait for it---"Tomato Juice."
bb
I'm betting that using a name that is the same as the name of a living person for a character in a work of fiction does not constitute advertising or selling or soliciting, etc. stuff.
The " on or in products, merchandise, or goods" is completely separate from the "for purposes of advertising or selling, or soliciting purchases of" any both may be separate from the "in any manner".
A book that you are selling, whether in hard copy or a e-book would certainly qualify as a "products, merchandise, or good" and using the real persons name for a character would certainly be using the name in any manner in the book.
If any only if you are only giving it away for free would you have a valid argument that the book is not a "product, merchandise or good".
A book that you are selling, whether in hard copy or a e-book would certainly qualify as a "products, merchandise, or good" and using the real persons name for a character would certainly be using the name in any manner in the book.
"Using the real person's name for a character" and using a name that a real person also has are two different things. I'm betting, if the law has any applicability here at all, that in the spectrum between "Beyoncé" on one end and "John Smith" on the other, you've got a lot of room to play. You're going to be using a name that a real person also has rather than "using [a] real person's name," and the closer it gets to "John Smith" the safer you are.
I'm not disputing the existence of the law or that it has been upheld, but I think its applicability here is limited.
bb
I'm not disputing the existence of the law or that it has been upheld, but I think its applicability here is limited.
Common names are probably safe. Unusual names however would be much riskier even if the person isn't famous.
I am not a lawyer or legal expert in any way, shape, or form. These comments are my opinion and interpretation only.
The " on or in products, merchandise, or goods" is completely separate from the "for purposes of advertising or selling, or soliciting purchases of" any both may be separate from the "in any manner".
Looks to me like it is all part of the same paragraph, therefore it is not 'completely separate'.
A book that you are selling, whether in hard copy or a e-book would certainly qualify as a "products, merchandise, or good" and using the real persons name for a character would certainly be using the name in any manner in the book.
I think you forgot the middle part of the law that was cited:
or for purposes of advertising or selling, or
soliciting purchases of,...
Unless the character is 'advertising or selling, or
soliciting purchases of' the book, it wouldn't seem to apply.
Looks to me like it is all part of the same paragraph, therefore it is not 'completely separate'.
Nope, you are not parsing it correctly.
, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods or services,, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services,"
That or means it does not have to be both "on or in products, merchandise, or goods" and "for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services"
3344. (a) Any person who knowingly uses another's name, voice,
signature, photograph, or likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods or services,
without such person's prior consent ...
Okay, so basically it could read:
"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, without such person's prior consent ... "
and mean the same thing. But then there wouldn't be all the legal mumbo-jumbo gobbledegook in there to confuse people.
Okay, so basically it could read:
"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, without such person's prior consent ... "
and mean the same thing. But then there wouldn't be all the legal mumbo-jumbo gobbledegook in there to confuse people.
Yep, but that confusion is how lawyers make their money and most legislators are lawyers. If the law were actually comprehensible to normal people, there would be little need for lawyers.
Okay, so basically it could read:
"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, without such person's prior consent ... "
and mean the same thing. But then there wouldn't be all the legal mumbo-jumbo gobbledegook in there to confuse people.
Except that your restatement omits the purpose for which another's name, voice, etc. is used. It's the use for certain purposes that counts.
I'm all for bashing lawyers---I mean, it's a national pastime, right?---but in fairness legal writing can be complicated and nuanced, and yet be clear and logical.
Convolutions are often, not always, the product of competing political purposes. The tax code, which everyone loves to bash, is the way it is because lots of people had their hands in and it attempts to do everything. Sure, you could put it on a postcard, as simple-minded politicians say they will ... right. Sure. Good luck with that. All those interests will just roll over and play dead, no question.
But I digress ...
bb
(Who owns his home and owes the bank a zillion $$ and thus likes his mortgage interest deduction. A lot.)
-but in fairness legal writing can be complicated and nuanced, and yet be clear and logical.
Sure, it can be, but it very rarely is.
is the way it is because lots of people had their hands in and it attempts to do everything.
No, usually it's to get themselves some kind of payout or tax break at everyone else's expense. This is in fact a very good reason for bashing the tax code.
All those interests will just roll over and play dead, no question.
And yet, you are telling all the people who object to the way it is that they should roll over and play dead, no questions.
No, usually it's to get themselves some kind of payout or tax break at everyone else's expense. This is in fact a very good reason for bashing the tax code.
All those interests will just roll over and play dead, no question.
And yet, you are telling all the people who object to the way it is that they should roll over and play dead, no questions.
Yes. Everyone who can uses the tax code to get a tax break. This is not a surprise and it is not illegal and I was not suggesting it was. It's no secret there is a wide disparity in wealth and access to power in this country, and guess who has most access to the tax code? I'd like to see things evened out a little.
As to roll over and play dead, I'm not suggesting any action to anyone. My comment was to highlight the obvious: any politician who tells you he or she is going to simplify the tax code in a fashion to permit you to file on a postcard is a liar or a fucking idiot or both, and thinks we are as well. Idiots, if not liars, that is.
In other words, how about solutions that are more than bumper stickers? I was keying off the discussion about legal language to point out the problem with oversimplification. And stupidity. What those solutions should be is a topic for a whole other discussion. One which I'll pass on, unless you can work writing sex stories into the discussion.
(Fucking on a stack of copies of the tax code? Uncomfortable.)
bb
I was keying off the discussion about legal language to point out the problem with oversimplification.
Over complicating things causes exactly the same kind of problems as over simplification, with one major difference. There is a fixed finite limit to how simple you can get. there is no such limit on the other end.
Actually, they might. California has a personal right of publicity that gives individuals a property right in their name and image.
Of course, you'll variations on this in different legal jurisdictions.
I remember reading a news item many years ago where a fellow had a business that was just the family name, started by his great grandfather or something, but been around for over 100 years. About 50 years or so back it was registered with the local authorities as a registered business name. Anyway, another firm, an international firm started in another country, was using a name similar enough to cause confusion between the two operations in the same business field. When they set up in the same region as the older firm they tired to force them to change their name using the country's trademark and copyright laws. In the end it cost the international mob a fortune in legal fees and then they had to pay out a few million to buy the local guy's business name off him so the international mob could operate in that region. I thought it was funny at the time. I'm not too sure, but I think it may have been in Canada, and the laws were such that the local firm's registered business name was close enough the international firm couldn't use their name in the anywhere in the province because the local guy had the name tied up.
For last names, an atlas. Really. Take a look. Street names on a city map work also.
For first names, pick a year your character was born, then Google: baby names [year].
Get some baby naming books and a set of dice, if you want to be organized, otherwise pull then out of your hat, like I do.
Note: This re character names, I haven't read the thread so I have no clue where drift might have taken it.
Lots of discussion online and a million websites to give you hints, but I just found a new one (new to me, anyway). At my son-in-law's graduation from law school yesterday I was browsing the list of the 300+ members of hiss class, and there you have it: a ready-made list from which you can pick and match to your heart's content. Plus, names from all over the world for whatever flavor your character has.
Type in teldir.com on your browser and this will take you to another site (the name of which I can never remember).
Choose your target continent /country and then choose individuals names rather than businesses (often "white pages" as opposed to "yellow pages"). You then have that country's telephone directories laid out for you with umpteen names. A few larger countries want closer data - states in Australia and the US for example. I was even able to read the Panmunjon directories at one time!
Type in teldir.com on your browser and this will take you to another site (the name of which I can never remember).
Thanks for the link. I often use ethnic names for characters, and I want to get 'authentic sounding' names. Using a regional guide of actual names would be a wonderful addition. Up till now, I've either been using actual names taken from the newspaper, or used Census data based on birthdate and race. Neither is an ideal solution, though picking actual names give more 'realistic' name combinations. (I wish that Marvel's Stan Lee used such a tool instead of always using the same letter for every name combination!)
The Social Security Administration has a listing of the most popular baby names, both current and broken down by decade. I have found it to be very useful.
https://www.ssa.gov/OACT/babynames/
Somewhere -- I've lost it now -- I ran across a list of the most popular last names. Also very useful, and ought to be easily googled.
The Social Security Administration has a listing of the most popular baby names, both current and broken down by decade. I have found it to be very useful.
That's useful, but they keep changing where they store that list online, so it's hard finding it over time. They also provide a 'top 100' list for each group, and a separate 'top 1000' list, which is much more useful for uncommon or ethnic names.
Somewhere -- I've lost it now -- I ran across a list of the most popular last names. Also very useful, and ought to be easily googled.
There are about a dozen names, many divided by country in different languages, that list baby names. However, it's limited in that they only list common names for new babies, rather than common names for 50-year-old Jewish women (or whichever group you're looking for). However, those lists are better for picking ethnic names based on meaning (such as "Vlad the Impaler!")
However, it's limited in that they only list common names for new babies, rather than common names for 50-year-old Jewish women (or whichever group you're looking for)
The Social Security lists are broken down by year, so you could find the popular baby girl names for the Jewish woman's birth year, although I don't think "Jewish" is one of the ethnic categories broken out. But you might guess from the name anyway.
bb
That's useful, but they keep changing where they store that list online, so it's hard finding it over time.
http://www.baby-names-and-stuff.com
This site has the most popular baby names by year (1880-2012) and by ethnic/national/language origin. They don't list Jewish for origin, but they do list Hebrew which would be close enough.
They have more current popular name information as well, but not broken down by individual year.
Correction, they do list Jewish as well as Hebrew.
