Using your friend’s name in a script
I was listening to the writer’s commentary for the “Cigarette Burns” Masters of Horror episode, and the writers said that when the legal team (or whoever) found out that they’d named a character after a friend of their’s, they had to give the first name to one character and the last name to another character.
Is this common procedure? I am dead-set on naming a lead character after a good friend of mine (first name and last name). Does this mean I have to lie to someone and say that none of the names are taken from people I know?
–Alex
Lying is certainly an option, but even better one would be to get your friend to sign a release permitting his name to be used.
The legal folks have a good reason for asking you whether any character is named after a real person: they don’t want to get sued for libel or defamation. But if your friend knows his name is in the script and is cool with it, all it takes is some paperwork to make that legally binding. At whatever point it comes up (probably close to production), explain the situation to the producers.
In all likelihood, it will just take your friend’s John Hancock to let the character be named John Hancock.
Articles
September 24th, 2006 at 9:33 am
How would that work if your friend’s name was also a character name in a different work? Like, if I found a middle-aged gas station attendant in Kansas that happens to be named James Bond, would it be a legal loophole to write the script about Bond, just as long as the real guy gave his permission?
September 24th, 2006 at 9:39 am
So long as the script is about a middle-aged Kansas gas station attendent named James Bond, and he’s given you permission to tell his life story, then I guess you’d be okay…
September 24th, 2006 at 10:36 am
my guess is if he’s a debonair British secret agent, that loophole isn’t gonna cut it.
September 24th, 2006 at 10:37 am
the character, i mean. though same goes for the gas station attendant, obviously.
September 24th, 2006 at 1:56 pm
What if my friend’s name was, lessay, John Smith? Would that make illigal for me to name a character John Smith, even though it’s, like, the most common name ever?
September 24th, 2006 at 2:02 pm
Basically, when you make a film there’s something called Errors and Omissions Insurance. Every single name, place, and event must be checked and cross checked in order to avoid any possible lawsuit.
As far as the James Bond question goes, creatively I don’t think you’d really want to name a character James Bond since that would immediately take an audience right out of the movie and ask, “Why the hell is that gas attendant named James Bond” and legally, expect a big fat cease and desist letter from MGM.
This is an extrememly litigious industry. No producer wants to chance an avoidable and unnecessary lawsuit.
September 24th, 2006 at 2:12 pm
“Would that make illigal for me to name a character John Smith, even though it’s, like, the most common name ever?”
No, it’s not illegal. And just for clarification, it’s not illegal to name a character James Bond either. The point of Errors and Omissions is to avoid an expensive lawsuit. You could name a character James Bond, get sued, and eventually win but do you really have the money for a lengthy lawsuit against a giant studio?
September 24th, 2006 at 3:18 pm
We just went through this with a movie we are producing. The writer gave one of the characters the name of his best friend who died recently. We had to go to the children to make sure it was okay with them… We were offering $250K simply to use their father’s name…
Our lawyers told us we were CRAZY because MAYBE… Using the name is worth about $25K… An incidental non-main character but the writer wanted each kid to get $50K. A simple gift to the children because this writer was best friends with their dad. Nothing more. A simple change and this money is GONE.
The children get wind of this and decide that they want half a mil for us to use the name.
Guess what?
A simple change.
Unk
September 24th, 2006 at 7:18 pm
Correct me if I’m wrong, but I think if it’s a common name, like John Smith for which there are five hundred in every state, you can use that name because there will be no way to prove that you are THE John Smith in that movie.
September 24th, 2006 at 9:06 pm
Unk–
You can use my name for $3.50. Seriously.
September 25th, 2006 at 12:59 am
ScriptWeaver,
I’ll keep that in mind… LOL.
What we are apparently doing NOW is dedicating the film to the writer’s best friend INSTEAD of naming a character after him as is actually in the screenplay.
Greed. You gotta love it.
Unk
September 25th, 2006 at 4:59 am
I’m not providing legal advice, but:
If you have a friend named John Smith and you, in fact, name a character after that friend you would need his consent, or risk the lawsuit.
If you name a character, a dentist, Sharon Winkelman and there happens to be a dentish named Sharon Winkelman, but you do not know her, how can you get the consent? You still risk the lawsuit, but the burden is hers to prove that you knew her and that the character is named after her.
Actually, in either case the burden is on John or Sharon to prove you knew them and named the characters after them. John simply has an easier time of it. That combined with your admission to the lawyers that you named a character after a friend makes it a risk not worth taking.
In most states the right to sue for using one’s name dies with him/her. I guess it is different in California or entertainment lawyers are really risk averse. If you name a character after a dead person, typically you don’t need to get consent because you can’t (However, consider that “Son of Dracula” post earlier. Drac is dead but can consent. I know of no cases decided in the U.S. regarding the personality rights of the undead).
Since the right of personality is a personal right, in most states it dies with the person.
I hate courtroom dramas, but John how about writing a courtroom drama about a vampire suing someone for using his name without consent? Imagine the firey dialogue
Hunky Defense Lawyer: (vehemently) I want the truth! Grizzled Vampire: (just as vehemently) The tooth? You can’t handle the tooth! Hunky Defense Layer: Um, I said “truth.” Grizzled Vampire: Oh. Sorry.
September 25th, 2006 at 5:32 am
As far as my understanding goes, I think the rarer the name the more careful you have to be. As far as naming a character (not based on anyone you know, just naming the guy) John Smith, there are so many that nobody would really be able to claim it was based on them. I think I remember reading in Cameron’s introduction to his Strange Days script book, they had to rename Vincent D’Onofrio’s racist cop during production (I think the original character was called “Burden Spreg”) because they found one real guy with that name, and therefore any film character named after him, people might actually associate with him.
How far do you check though? I’ll never forget sitting in the opening night of “The Lost World” way down here in Plymouth, Devon, the United Kingdom, and when Richard Attenborough told Jeff Goldblum that “Sarah Harding is the best paleo”…whatever-she-was, a girl behind me exclaimed “That’s my name!”. She thought it was funny, but I don’t think Universal and Amblin had called her during production to check, so how far does the net spread?
September 25th, 2006 at 9:30 am
Does anyone else know if there has been anymore development in the lawsuit between Richard Linklater and his high school friends on whom he based his “Dazed & Confused” characters on? I mean, he didn’t even use their names, just their character I guess and they’re sueing him for damages…whatever those might be.
September 25th, 2006 at 9:38 am
Oh wait, he DID use their names. Apparently only their last names though.
Here’s the news brief on IMDb: http://www.imdb.com/news/sb/2004-10-11#film5
September 26th, 2006 at 6:44 am
There have been problems in the past with shows like ‘Law and Order’.
Imagine they have a show about a dentist ‘Dr Jim Willis’ who is infected with AIDS but deliberately doesn’t tell his patients.
Chances are there is a dentist somewhere in the USA who happens to be called ‘Dr Jim Willis’ – who is going to get very worried about patients deciding the character is based on him.
Especially when ‘Law and Order’ proclaims that the shows are inspired by real events (‘Ripped from the Headlines…’)
From memory, they check huge indexes of professions to check that there isn’t really a registered dentist anywhere in the US called ‘Dr Jim Willis’. In the case I’m thinking of, they were caught out by the fact that the name wasn’t 100% identical, but close enough. Especially when other ‘facts’ about the character happened to match.
I feel sorry if a ‘Dr Jim Willis’ happens to come across this snippet while ego-googling….
Mac
December 4th, 2006 at 10:57 am
This stuff is handled by a script clearance company, who reviews the shooting script and produces a script clearance report detailing what names, etc. you should either change or get permission to use. The production attorney reviews and approves this report and the final script & film. One company’s website with more info on this is IndieClear. It has links to news articles on a lot of lawsuits over copyright/trademark/permissions issues in film.
February 9th, 2007 at 6:23 pm
What about references in a script to real, living politicians? Not as characters, but mention of them in an incidental way, i.e. Bill Cohen, former secretary of defense; and George Mitchell, former Senate Majority Leader. Obviously they are public figures. You can write just about anything you want about public figures. I’m a journalist, who got sued for libel three times. Most of the suits turned on the issue of whether the subjects were in fact public figures, and how public figures are defined. I know Stephen King has on several occasions used the name David Bright as a reporter-type character in his books. Bright, in fact, is a former journalist who went to the University of Maine at Orono with King, so I suspect consent was given.