-- Leslie Ayvazian
This section has been revised and expanded in the new paperback and Kindle editions of Playwriting Seminars.
Thinking about people you know – or wish you knew – can be a good way to develop characters and subjects for plays. When selecting a real person to be a central character in your play, it helps if their life has followed a dramatic arc. Is there some major event that was the capstone of their lives? If they led a relatively ordinary (even if somewhat interesting) life, it will be difficult to structure a full-length play around them that will work in production. If their life had no climax, you’ll be hard-pressed to come up with a convincing ending to the play.
What follows here on the right of privacy and right of publicity represents a conservative approach to these legal issues, one that most playwrights ignore. From a practical standpoint, they’re probably right to do so. The possibility of an aggrieved party being able to argue successfully that the production of a play besmirched their good name or harmed them financially is unlikely. There simply aren’t enough people going to see even the most successful play (musicals excepted) to have a significant impact – negative or positive – on public or private personalities. (Screenplays are an entirely different matter.) This should not be taken to mean that if you annoy someone sufficiently by how they’re portrayed that they won’t go after you out of spite. Even if they have little hope of prevailing in court, they can still cause you an immense amount of grief. If you're determined to use real people either living or dead less than a 100 years as actual characters in a play, see a lawyer, preferably one who specializes in this kind of law. Nobody needs legal entanglements complicating their writing lives.
If you’re thinking of basing a play on private individuals – anyone who’s not a “household name” reasonably well known through media coverage – the legal doctrine of Right of Privacy may apply. This literally means they have the right to protect their privacy and you’ll be flying in the face of that if you make them an identifiable character in a play without first getting their permission to do it. In 2011, this issue was demonstrated with accompanying national notice as a result of legal action brought against the author of The Help, the highly successful novel and its subsequent film adaptation. The claimant was the long-time maid of the author’s brother and alleged that she was used as the model for a central character without the author having asked permission to do so. The case was dismissed – don’t be emboldened by that – because the maid filed her claim after the one-year statute of limitations had expired.
For well-known public personalities, the legal doctrine of Right of Publicity may apply. This means they may have the right to control exploitation of themselves, especially for financial gain. Exploiting them is really what you’re doing when you create an identifiable character from a well known figure. Both of these legal issues become particularly important if you intend to shine a highly unfavorable light on either public or private individuals. If you’re writing a love letter to them – or at least a balanced letter – you may be able to get them or their estates to bless your plans, or at least leave you alone if the play is a success. But don’t count on it.
Basing characters on real people runs through at least three options, each with its own pitfalls.
Anna Deavere Smith uses the actual words, gestures, and speech patterns of the "ordinary" and famous people she's interviewed for her plays, but she gets their permission to recreate them in her scripts. If you try this approach, it’s likely that most people (especially if you know them) would think it’s a lark to be put on the stage without actually having to be there in person. If you don’t know them and this is to be your first play, you’ll either have to be a marvelous bluffer or wait until you’ve had some success as a playwright.
Tony Kushner used a version of the well known (and some would say, infamous) attorney Roy Cohn as a character in Angels in America. Public figures – people like Cohn who were or are widely talked about in the news media – are generally fair game for playwrights. It helps if they're dead. If your version of one of these figures is distinctly unflattering – as Kushner’s was – it's a good idea to add a disclaimer in the preliminary pages of your script. This won't necessarily keep the lawyers away from your doorstep, but it may help. Here's how Tony Kushner handled this in his script for Angels in America:
DISCLAIMER: Roy M. Cohn, the character, is based on the late Roy M. Cohn (1927-1986), who was all too real; for the most part the acts attributed to the character Roy, such as his illegal conferences with Judge Kaufmann during the trial of Ethel Rosenberg, are to be found in the historical record. But this Roy is a work of dramatic fiction; his words are my invention, and liberties have been taken.
While Roy Cohn (the character) was important in Angels in America, he was not the central focus of the play. A real person can be the central character and usually is for a good reason. If you’re going to wrestle with all the rights issues that may be involved in using real people, it usually doesn’t make sense to put them in service as a minor character. There’s a fascination to using real people as characters. From a PR standpoint, you may attract a lot of attention – separate from the merits of the play – from potential audiences who seldom go to the theatre, but know of the person you’re presenting and will buy tickets for that reason alone.
That added lure of celebrities works best by using an icon as a character, preferably one who’s life and work has created either a large following or at least an image of historical significance.
1. David Auburn’s The Columnist. Scheduled to premiere in New York in 2012. His play focuses on the famous mid-century American journalist Joseph Alsop and the attempt by Soviet agents to set him up for blackmail. Auburn established his playwriting credentials with the acclaimed play Proof as well as screenplays focused on fictional characters before taking on the very real Joseph Alsop.
2. John Logan’s Red. Focusing on the great mid-century American painter, Mark Rothko. Like Auburn, Logan established his credentials first with produced plays and screenplays before taking on Rothko as a character. The resulting script was the winner of the 2010 Tony Award for Best Play on Broadway.
As Edward Albee did in one of his first plays, The American Dream, though he was later dismayed that people thought his theatrical version of his mother was intriguing rather than the negative portrait he intended. It's a well-worn cliché that writers are known for miserable childhoods, but this last approach raises some tricky liability issues – issues that most playwrights who draw on their families for character inspiration ignore. As elsewhere in the Handbook, what follows here is a very conservative reading of these legal issues.
Technically, you can't expose your mother or old Uncle Joe to ridicule in your play in a way that would allow others to recognize them – and as a result think poorly of them – without putting yourself at some legal risk. No matter how much you hate them and regardless of how nasty they were to you, people who are not public figures may have a right to maintain their privacy, even from a playwright in the family. (Tracy Letts partially modeled the vicious matriarch in August: Osage County on his grandmother, but after seeing the play his mother concluded he was nice to her in his portrayal.) The same right of privacy is also true for your next-door neighbor or your roommate at school.
Accomplished playwrights and screenwriters agree on at least one thing: If they use autobiography as a source, they typically disguise the remnants to such an extent that only they can recognize the sources in the final draft of the script. If you’re still determined to take on the parents, consider writing a tell-all memoir instead. Book publishers have an insatiable appetite for nonfiction memoirs marked by family misery. Regional theatres and commercial theatrical producers seem (so far) not to share that interest. Of course, if you want to make your play a love letter to Aunt Minnie you probably don't have to worry about whether she'll call her lawyer, but it doesn't hurt to ask before you write. If this is your first venture into playwriting, you'll have enough craft issues to keep in mind without having to deal with lawyers. Go with an original fictional or well-disguised batch of characters now. Once initial recognition has come, you can think about the possibility of using real people as characters.