Two interesting cases caught my eye this week.
The actor Scarlett Johansson has successfully sued a French novelist, Grégoire Delacourt, for writing her as a character into his novel, La Première Chose Qu’on Regarde. Johansson argued that the portrayal constituted defamation and that Delacourt’s book ‘fraudulently exploited her name, her image and her celebrity’.
But, according to the Guardian, this wasn’t a huge victory for the actor.
The Guardian quotes Delacourt’s publisher, Emmanuelle Allibert of J-C Lattès:
All of Scarlett Johansson’s demands were rejected except one thing that was seen to be an attack in her private life over two relations that she never had.
All her other demands, including damages of €50,000, were rejected, notably that there should be a ban on the book being translated or made into a film. We just have to cut out the bit about the affairs, which is just four lines[.]
Delacourt himself claims that the Johansson character is not really Scarlett Johansson, just a model who looks like her. But he implies that the character is modelled on Johansson because Johansson for him is ‘the archetype of beauty today’.
So – it appears – Delacourt lost his case only because he based a fictional character on Scarlett Johansson and his fictional character had committed adultery. The charge that the author ‘fraudulently exploited her name, her image and her celebrity’ does not seem to have been reflected in the judgement.
Which brings me to the case in New York where actor Lindsay Lohan is trying to sue the makers of Grand Theft Auto for ‘allegedly using her image, likeness and voice without permission.’
Lohan’s case is that GTAV features a character called ‘Lacey Jonas’ in a mission included in GTAV. You can read the full complaint here. Lohan’s argument is that, even though GTAV didn’t use Lohan’s name, Lohan is the ‘intended referent’ because ‘her likenesses, portraits and voice’ were used ‘to advertise the game for trade purposes’ and the mission narrative is ‘substantially similar to places, locations and events’ in Lohan’s life and that Lohan’s right to privacy was violated ‘by including her portraits and ‘screen persona’ in the game. The complaint also says that GTA explicitly advertised the ‘Lacey Jonas’ character as a ‘Lindsay Lohan’ lookalike in its promotions, although I haven’t seen this online. (I’m not a lawyer: I’m feeling my way along here.)
The violation of a ‘right to persona’ is an interesting angle. The idea that an image of yourself can become a commodity that criminals can unlawfully trade off. That we have a right not just to the exercise of self expression and individual freedoms but to a unique and self created image.
As I understand it, if I self publish a series of hack novels called ‘The Russell Brand Time Machine Adventures’ customers would potentially buy my product purely because of the Russell Brand name and because they made a wrong assumption that the books were by Russell Brand or authorised by him. I could then be said to be unlawfully profiting off Russell Brand’s name recognition and therefore leave myself open to charges of ‘right to persona’ violation or even defamation (depending on what I had Russell Brand doing in the books).
Lindsay Lohan’s complaint even argues that ‘Multiple people in the general public have reached out to the Plaintiff [Lohan] believing the character was the Plaintiff, creating consumer confusion in the market place.’
However I think to the general public Lindsay Lohan although she has big name recognition, she doesn’t have a unique persona in the same way Russell Brand does. GTA’s attorney says that the character is just a ‘generic troubled starlet’. Lohan has become the generic sexy but screwed up celebrity, just as Johansson has become the archetype of the beautiful and sophisticated actress. It’s not fair, but it’s how people’s perceptions are shaped. Journalists, presenters, gameswriters, PRs, spinners, propagandists, and also hack writers, screenwriters and dramatists, exist to turn human beings into archetypes. That’s why good writing is so rare, and so important. But by the same token Lohan’s case (at least if it was heard in the UK) could open the door to any writer guilty of lazy characterisation being sued into the poor house.
Novelists have featured real people in their books since the form begun. Don DeLillo’s Cold War song Underworld has famous historical personalities wandering in and out of his narrative like confident ghosts. And who could forget Princess Margaret’s turn in Edward St Aubyn’s Some Hope? Fiction should be able to intersect with the real. Some characters just happen. They walk into our lives more or less fully formed. It’s a spooky and remarkable thing. But also like most people, writers become people through constant exposure to other human beings. And so most writers will consciously or unconsciously base fictional characters on real people. Contra Philip Roth, when a writer is born into a family, it’s not just that family that’s doomed. It’s anyone and everyone that writer meets.
However most novelists tend to avoid putting real people in novels who are identified explicitly with that person or too perfunctorily disguised. Anthony Burgess was sued after his 1961 novel, The Worm and the Ring, after a secretary at Burgess’s old school saw herself in its pages: the book was pulped, and revised editions had passages removed. Scarlett Thomas, in her masterful Monkeys with Typewriters, writes that ‘Again and again I see students trying to write the actions of someone whom they know in real life. It’s limiting, embarrassing and also, of course, morally dubious. So let your characters develop as a part of you. Ask yourself what you would do in this situation if you were this person.’
The doubt I have about this is that it turns characterisation into thought experiment, because not everyone reacts to similar situations in the same way. The characters in, say, Ishiguro’s Never Let Me Go react in realistic ways, but they cannot be said to have persona. You don’t physically see them. The characters with persona are inexplicable spectres, and you know them better than your friends.
(Image via Dazed Digital)