I dislike the law and I have little interest in ethics. So here’s a post about the ethics and legality of using real characters in fiction, as I do in my latest novel MOZART’S LAST ARIA. It’s the one time I’ll bother to write about either subject.
In a Fringe Magazine review of MOZART’S LAST ARIA.
, reviewer Scott Wilson notes how much he enjoyed the book. (“This story was extremely well-written and up there with many other great whodunit books. The narrative is both beautiful and historically accurate, as are many other elements of this crime novel. It is obvious that Rees did some pretty extensive research in developing the foundation for this book. I found the pages of the book turning themselves with the ripping read and sense of urgency that the author created with the plot.”)
Thanks, Scott. Reviews don’t get much better than that.
But my novel also touched off a thought in Scott that’s worth looking at in more depth. Here’s what he wrote:
Mozart’s Last Aria is one of those books that amazes me. I don’t know how you can write a fictional novel based on a real person without being sued for slander or defamation etc etc. I mean the concept of using a real, historical figure and adding elements of fiction to make an interesting story has some merit to it and in some cases, such as this book, it makes a great read. But I just don’t understand how you can get sued for plagiarism by using someone else’s song lyrics or stories, but to take a person’s life and write what every the hell you want about it is okay??? Don’t imagine being able to write a novel based on Han Solo or Sherlock Holmes and being able to make millions without it being an issue to anyone else? I’m going to have to do some research into the legalities of writing a fictional novel based on real people for my own curiosity now.
There are a few issues raised in this paragraph. The first is: what’s legal? My blogmate Christopher G. Moore will be able to add more detail on this, as he’s a recovering lawyer. However, my understanding, in very blunt terms is: as long as the person is dead, they can be fictionalized.
That’s how you come to have real Hollywood actor Sal Mineo as a gigolo in James Ellroy’s novels. Or Lee Harvey Oswald in Don de Lillo’s “Libra.” Or Virginia Woolf in “The Hours.” If they were still alive, they might’ve sued. Or Mineo would’ve had the mob knee-cap Ellroy, Oswald might’ve assassinated de Lillo, and Woolf may have attempted to beat Michael Cunningham to death with the enormous false nose Nicole Kidman wore in the film version.
But they didn’t. Because they’re dead. Like Mozart. (In fact, my novel is about what really caused his death, so that’d have to be the point.)
So let’s get to the ethics. A fairly silly “outraged” blog on The Guardian a couple of years ago suggested that “increased” use of real dead famous people by novelists was an ethical issue and that it was the result of the decline of privacy and private space in the age of Twitter, Facebook and My Space (thus revealing that the blogger wasn’t really up on the latest developments with My Space, which has been called the “abandoned theme park of the internet” for years now.) By going inside the heads of famous dead people, novelists reveal themselves to care not a jot for privacy, he writes.
Actually, I agree that the privacy of dead people is an issue of little importance, in a world riven by war, rapine, and investment bankers. There are bigger fish to fry.
I note that The Guardian post also included the strange qualification that “This needs to be sharply distinguished from Tolstoy musing on (or through) General Kutuzov, or Dumas making a (splendid) villain of Richlieu, or even Shakespeare’s Tudor propaganda.” It struck me that the blogger was trying to anticipate the obvious counter-argument that much great literature has claimed to give us insight into the minds of “great people.” Instead of saying that “Richard III” was a historical travesty against a man who was only as nasty as his opponents, the blogger would no doubt have us believe that Shakespeare’s poetry is exempt because back then privacy was easier to maintain – and therefore ought to be somehow easier to invade – than it is today. If someone wrote “War and Peace” today, the Guardian blogger would be appalled by its invasion of General Kutuzov’s private musings.
I have a simple answer to The Fringe reviewer’s query. Historical novels can be built around people we’ve never heard of and thus shine a light onto, let’s say, women’s role in a male-dominated era. But when we take a real historical person and go inside his/her head, we’re able to take a new look at history, politics, and — in the case of Mozart — music. We aren’t recasting history as conjecture; we’re refining a new prism for seeing a historical figure, translating them into contemporary language, if you like.
Personally I think ethics have nothing to do with fiction. I say this as a former reporter who spent 20 years listening to sniveling discussions of journalistic ethics from editors who ultimately had no principles except to sell magazines. Neither am I a historian: if someone mistakes my novel for a history book, then my writing must be duller than I think.
A figure who was compelling as an artist, performer or leader when they were alive remains compelling in death, and writers oughtn’t to avoid them.