With three former classmates suing film-maker Richard Lindlaker over his cult classic, 'Dazed and Confused', Anna Carey warns on the dangers of mxing fact and fiction
When Richard Linklater's film, Dazed and Confused, was released in 1993, his hometown of Huntsville, Texas, quickly recognised itself on the big screen. Set on the last day of high school in the 1970s, the film showed a bunch of Texan teenagers celebrating their freedom as riotously as possible. Over the decade since its initial release, the movie has developed a cult following, especially in the place where it was set.
"The kids that really were cool knew someone who was portrayed in the movie, and you were a god if one of your parents was depicted in it," Jared Wells, who was in high school in Huntsville in the late 1990s, recently wrote in a Texan college newspaper. But not everyone thinks that being captured on film is so cool. Last month, three of Linklater's former classmates filed a lawsuit against the film-maker, claiming his use of their surnames and "likenesses" in the film has subjected the men to "relentless harassment, embarrassment and ridicule".
Bobby Wooderson, Andy Slater, and Richard "Pink" Floyd say the film's portrayal of their namesakes as wild-living stoners has led to constant mockery and has made them, in the words of their lawyer, "celebrities against their will". The case has yet to come to trial, and when it does, Linklater has the US's First Amendment, which guarantees freedom of speech, on his side. Under Irish law, however, they might have a good case.
Just the fact Linklater used their surnames and identified the district in which they lived could be enough to make a charge of defamation in an Irish court. If the person on whom a fictional character is based claims that at least one other person can identify them in that character, and if this fictional character "tends to lower that person in the eyes of right-thinking members of society or tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right-thinking members of society", there is a case of defamation.
And the fact that this character appears in a feature film or a novel is no excuse. If you produce a thinly-veiled version of a real person or real events, says James Hickey, a lawyer at Matheson Ormsby Prentice and one of Ireland's leading media law experts, "that's just not fiction".
As far as the law is concerned, if a character is easily identifiable as a real person, you might as well have just used their real name. In fact, film-makers are usually advised by lawyers to go through scripts carefully to make sure there's nothing potentially defamatory. Any event or character which is based on a real person should be checked with that person to make sure they've given permission for their "likeness" to be used, and even if the story and characters aren't based on real people and events, research should be done to make sure there aren't any coincidental resemblances to reality.
THIS ISN'T A legal requirement; it's a preventative measure. When the producers of Fight Club discovered that there just happened to be a real person with the same name as the film's anti-heroine, Marla Singer, they asked her permission to use her name, just to be safe - if they hadn't, she may have had a case for defamation (and what a court case that would have been!). However, when author Chuck Palahniuk published the original novel, such name checking wasn't really an issue. While books are, of course, just as likely to contain inadvertently defamatory material, the defamatory potential of a major film is usually considered greater. But is all this fair to artists? Novelists and script-writers have always drawn on their own lives for inspiration, and that often means drawing, albeit inadvertently, on other people's lives as well. So do authors have the legal right to appropriate other people's lives for their own art? The answer is yes.
"No one owns the copyright to their own life story," says James Hickey. And as long as a novelist sticks to the basic facts of someone's life, the subject of a novel can't do anything. If you write a novel whose hero goes to a comprehensive school on Dublin's Malahide Road, forms a rock band which becomes hugely successful and becomes a vocal supporter of many humanitarian causes, plenty of people will be able to identify the character's inspiration as Bono. The inspiration himself may be irritated, amused, or just not care, but whatever he thinks, he can't really do anything about it. If, however, this pseudo-fictional rock star is shown to be selling drugs to pay for guitar leads or behaving in a fictional way which might "lower his good standing", that could be defamatory. But if you stick to basic facts of public record and don't present a person in an inaccurate light, you can write novels about fictionalised-versions of anyone you like without fear of repercussion.
THERE'S THE ISSUE of privacy, of course, but privacy law in this country is in, what James Hickey calls, "a developmental stage". The ruling in the British case of Naomi Campbell vs the Mirror - Campbell successfully sued the Mirror for infringing on her privacy - may pave the way for stricter privacy laws in the UK, but the Republic has yet to follow suit, although that may change in the future.
Of course, everyone has the legal right to write and publish a novel featuring easily indentifiable people getting up to all sorts of dreadful and untrue things. It's up to the subjects to take legal action if they want to, and few of them ever do - such defamation cases are very rare. But writing unpleasant things about real people is seldom trouble-free, whatever the legal situation.
Orson Welles found this out the hard way when he made Citizen Kane, the story of Charles Kane, an ambitious newspaper owner who bore an undeniable resemblance to publishing mogul William Randolph Hearst. Although Welles was untouchable under US law, Hearst used his influence in Hollywood to attempt to suppress the release of the film, and, when that didn't work, he successfully turned it into a commercial flop. Some claim that what Hearst really objected to was the film's portrayal not of himself, but of his lover, showgirl Marion Davies, whose on-screen equivalent was shown as vulgar and talentless. Even Welles thought he had been unfair to Davies in the film. "We had somebody very different in the place of Marion Davies," he later admitted. "And it seemed to me to be something of a dirty trick, and does still strike me as being something of a dirty trick, what we did to her. And I anticipated the trouble from Hearst for that reason."
Even when writers mean no harm to their fictionalised subjects, they can still cause them pain. A. A. Milne's son, Christopher Robin, never quite got over being fixed in the public imagination as Pooh Bear's companion. Christopher Milne said that sometimes he felt his father had "fliched from me my good name and had left me with nothing but the empty fame of being his son". Milne Junior later opened a bookshop, where he was often accosted by customers who just wanted to shake hands with the original Christopher Robin, something which, he said, "fills me with acute embarrassment".
Would-be writers may be reading this with horror, wondering what on earth they can write about now. Perhaps the safest thing is to write about real places, not real people. E. F. Benson turned his hometown of Rye into the eccentric village of Tilling, and Rebecca's Manderley is really Menabilly, the Elizabethan mansion in Cornwall which author Daphne Du Maurier lived for 30 years. Although even this may not be safe - when popular teen drama The O.C. depicted the California town of Chino as crime-ridden and run-down, the Chino city officials took offence. "This is a callous way of looking at a city without thinking about the people who live there," said city manager Gelm Rojas.
It seems more likely, however, that writers willjust keep putting in their friends and acquaintances and just hoping for the best. After all, they've been doing it for years - and few of their subjects ever actually complain. "We all like to pretend we don't use real people," said the novelist E. M. Forster. "But one does, actually."