Let’s say you and I date (I’ll apologize now, prepare do be disappointed, even in the hypothetical).
Let’s say you’re an artist, and in the course of our romance you ask if I’d be willing to pose nude for a painting. And I agree. Again, prepare to be disappointed.
You paint me naked. And you flatter me a little bit because, you know, we’re dating, and I’d appreciate an extra inch here, a subtracted inch there, some hair removal. Lots of hair removal. Butt area, primarily, for hair removal.
You’re extremely proud of this painting, and you busted your ass on it (while shaving mine). It’s your best work to date. Others who see it agree, the painting displays your talents and evokes emotion in the viewer.
Then we break up (again, I apologize. There’s only so much apologizing I can do before you need to start taking some responsibility here). And we’re dividing possessions.
Who owns that nude painting?
On one hand, it’s a depiction of me. I might be embarrassed by it. So It probably should go to me.
But it’s not as simple as a saucy Polaroid I gave you for your birthday (for the last time, so, so sorry). You made it from thin air. Well, not AS thin as it would’ve been if you’d painted it of a 22 year-old Pete, but you know what I mean.
I think we can both make a good case for ownership of these images. I’m depicted, but you did the work.
By the by, if you’re upset by my hypothetical question regarding the ownership and potential commodotization of my own fictional relationship and nude image, please read this column on Hot Dudes Reading, which is actual sexualization and commoditization of highly-recognizable people in images, provided without consent, and once we’ve addressed that, we can come back to how angry you are about a hypothetical.
Writers
If you’re a writer, you’ve probably encountered a situation like this on some level. You’ve written a book or a story, maybe even non-fiction, with someone at the center, someone from your real life, and you question who the real owner of this story might be.
Let’s explore some of the criteria you can use to decide whether or not you’ve got the right to tell a story.
Legally
I am not a legal expert. I’m just going to say some things that shouldn’t be used as a basis for a court case because that would be a terrible idea. I also started this column talking about my ass hair, in case you needed a reminder of the context here.
Mostly, courts rule in favor of artists on stuff like this. If your depiction of someone is “highly creative,” then you’re likely in the clear, and a piece of creative writing is generally considered highly creative.
We’ll move forward to talk about personal ethics instead of legal considerations.
Recognizability
A close-up photo of someone’s face and a faraway photo of them in a crowd are two different things. A picture of the back of someone’s head is different than a picture of their face.
When it comes to photo, recognizability kinda works like this: If you take a photo of me, and people who do not know me and see me in real life come up to me and say, “You’re the guy from that photo!” then you’ve depicted me in a highly recognizable way.
Someone is always going to be recognizable to their friends and family, even if they’re a face in the crowd. So someone intimately familiar with a person will, of course, be able to recognize that person from just about any photo, so it’s unreasonable to say that a depiction of someone is “recognizable” because their mother recognizes the mole behind their left ear.
Likewise, in your story, a depiction of someone will probably be recognizable by their friends and family, but if it’s a depiction that wouldn’t make them recognizable to an average person, I think you’re on solid ethical ground.
This is a little more complicated in modern times. If I wrote a memoir in 1985, I could probably talk about someone in great detail, and you couldn’t just jump online and find a picture of the person I depicted. Today you can jump on Facebook and see who someone dated, who their friends are, and you can probably put the pieces together. However, let’s remember the rule: The person depicted isn’t being recognized when they’re out and about because of the book you wrote. They’re being recognized due to internet sleuthing, which you, as the writer, aren’t in control of. The sleuths were prompted by the book, but that’s not what triggered the recognition.
I think, as the writer, the ethical thing to do is depict the person, but you should change details that don’t change the nature of the story. Name, maybe some aspects of personal appearance, job, stuff like that.
Also, be mindful that your social media presence might make someone more recognizable, so perhaps it’s a good idea to remove some of those old photos and posts for the sake of their privacy.
Humiliation: Go with You Guts
You know Chuck Palahniuk’s story “Guts”? The person who bought the ingredients for cramming a carrot cake up his ass? That’s a real story.
Everyone in “Guts” is more or less real.
You can honor a person by telling their story. Which gets weird when you’re talking about a humiliating story. But by my estimation, there are two factors at play here:
Factor One: Humiliation that’s not connected to a person, where 99% of people wouldn’t know who the story is about, that’s humiliation designed to connect and make other people feel good, not to make the original actor feel bad. Telling a humiliating story about someone while they’re in the room is a dick move meant to make that person feel shitty. Telling a humiliating story about someone that nobody knows gives people the chance to see that it’s okay to do something dumb. It prompts them to be more open about their stupid moments. It’s what makes us human, right?
Factor Two: Something humiliating used artistically, a story told with craft and care, honors the story. It does right by the person and by the material. If you put hours and sweat into a humiliating story, rather than just tossing it off as a quick 15-second video? That means something.
You Can Ask
The surest way to secure the rights to something? Ask. It’s not always the easiest way to get the rights to something, but it’s the most rock solid. Show the person the material, ask how they feel about it, and if they give the thumbs-up, you really can’t go wrong.
However, I’d put up three reasons why this may not work for you:
One, if you go this route, there’s no unwinding. You can’t really go ahead and publish it anyway when you're 100% certain you’re going against someone’s wishes. You can’t unring that bell, as they say. Once you get turned down, moving forward anyway has a different meaning.
Two, it’s possible that a person you wrote about is not generally in favor of you and your future activities, so they may say no because, well, they have their reasons, unrelated to the depiction.
Three is more complicated. When you write, you’re supposed to kick certain people out of the room. For example, I couldn’t write anything if I was worried about what my mom would think. Please do not send her this column with my discussion of my own ass hair. If you’re depicting someone, you can’t depict them accurately without kicking them out of the room. Unless you’re like Alex Ross and you have your dad figure model for Superman, chances are you’re going to show some warts.
This brushes up against the ideas of consent, and I recognize that. It’s very imperfect in that way, and I’m guessing this’ll cause some people to have strong opinions about it. Like I said, asking is the most rock solid way, and it's not always the right way in this very specific circumstance of depicting someone in a piece of writing.
Having never had sex against my will nor having never been depicted in a piece of art without my consent, I can’t say that there’s a huge difference or what that difference is. But my suspicion is that if you're feeling like they're the same, you should ask someone who experienced both of those things, and they’d probably be able to illuminate the differences pretty thoroughly.
Who Will Tell The Story?
This part is a little weird because, well, it goes against the idea of Own Voices a little bit. So I apologize in advance.
You might, through a relationship with someone, have insight into a world that you’re not part of, but adjacent to. And although it’d be best to have a novel about, say, an adult woman struggling with a serious eating disorder BY an adult woman struggling with a serious eating disorder, that might be a false choice.
Unless your loved one is a novelist, you’re not really taking away from that person’s novel by writing your own. Because their novel will never exist. I'll even go so far as to say that if you both wrote a novel about the same thing, the same single day, they'd be two very different novels.
It’s my opinion that a choice between reading the multiple available versions of that story is a choice that should happen on the part of readers. I also think publishers need to be mindful about the ways they’re publishing and promoting first-person narratives and experiences versus adjacent ones.
But I don’t think this should stop you from writing the story you feel you need to or want to write. Don't stop yourself from writing the story. Make the thing before you decide how you feel about it.
Commerce
Really, the ownership question only starts to feel icky when you try and make money.
And all I really have to say about that is the same thing I say about just about every aspect of writing: Selling and writing aren’t the same thing.
Write your book now. Worry about the ethics of selling it later.
Chances are, by the time you get the thing finished, it’ll go directions you didn’t predict, and it'll present results you feel differently about.
Really, all of this is of no concern when it’s a document that lives with you and only you. There’s no ethical question, in my mind, of whether or not it’s appropriate to create something. It’s when you present it for public consumption that things change.
Who Gets to Decide?
You do.
Some of you need to be empowered. Some of you need to tell stories.
Some of you need to recognize that your fear in telling a story might not be about ownership. It might be about something else.
Some of you need to take the truth and tell lies with it. As Tom Spanbauer says, “Fiction is the lie that tells the truth truer.” Maybe your truth is that you dated someone with an artificial limb. And you have stories about it. And it’s part of your life. Maybe you can tell that story without talking about a prosthesis. Maybe that’s not really what the story is about. Maybe the lie you come up with tells the truth truer.
I’m not here to police who owns which stories. And really, while many others have tried, they don’t get to decide, either. The decision they get to make is which stories they’ll buy, read, and support, not which stories you'll create.
If you leave with one thing, leave with this: If you’re not sure a story belongs to you, figure it out by writing it. Just make sure you knock it out of the park.
Get U.S.!: Songs and Stories by Chris Bachelder at Amazon
Get Lincoln in the Bardo by George Saunders at Amazon or Bookshop
About the author
Peter Derk lives, writes, and works in Colorado. Buy him a drink and he'll talk books all day. Buy him two and he'll be happy to tell you about the horrors of being responsible for a public restroom.
