Tuesday, September 07, 2010

No, no, no.

"This is a fictional memoir."

noooo no no.

For starters, publishers are a trifle leery these days of "fiction" and "memoir" appearing in the same sentence. Frey-tened you might say.

Second, if it's fiction, and thinly disguised, you can STILL get sued, and LOSE. Anybody can sue about anything, but until last year, we all comforted ourselves that the disclaimer "this is a novel, I made it all up" would protect us.

After the court case in Hall County, Georgia, that changed.

So, no "fictional memoirs" and no "thinly disguised roman a clefs" As a novelist you always got to make stuff up; now you really have to.


21 comments:

justwritecat said...

Hmmm....all I know is I love the phrase 'frey-tened'. Sounds UFish.

Gabriela Lessa said...

This is a good issue to mention, Janet. Could you give some further examples? Everyone gets some inspiration from their personal life. So what is the turning point? When does it go from inspiration to law suit? I've been told that as long as you change indetifying information (name, physical description, etc.) you're fine. Is that true?
I would love it if you could ellaborate on another post. It sounds like a useful discussion.

Sarah W said...

I remember a writer stating once that if you used a real-life, ex-boyfriend rat-bastard in your novel, give him teeny, tiny family jewels (I'm euphamizing and paraphrasing) so he wouldn't ever want to claim it was him.

Obviously those days are over.

So I probably shouldn't mention the writer's name, in case I misremember . .

nomad said...

I can’t believe the timing of your post. I was about to send a query to the Shark that dances along the edge of reality. I do say it’s a work of fiction, but I guess I'll be sidestepping a bit more so no one can claim to be any of the characters.
I didn’t know about Mr. Frey and his escapades until an agent (after reading a full for a series that could not be confused with reality) suggested I look up Jim Frey and read some of his work. I did. At first I thought the agent was nuts, until I realized she was referring to James N. Frey. She remains in my esteem.

Gregg Podolski said...

Okay, but what if the fictional memoir is completely off-the-wall, absurdist humor? I'm polishing off one of those right now, and doesn't your client Evan Mandery have something similar coming out next year? I understand the Frey-inspired uneasiness for a memoir dealing with addiction or some other serious subject, but humor too?

CKHB said...

I attended a "writing about real people" seminar at a conference last May, where the author-speaker talked about writing characters who were heavily inspired by real people. He said he remembered his editor talking about another writer who was being sued by his ex-girlfriend because that writer built a character on her and "didn't change enough about her."

"What didn't he change?" this author-speaker asked.

The editor replied, "For one thing? Her name."

behlerblog said...

"Frey-tened"...guffaw

Orlando said...

Wow, that's good to know stuff. That's all I'll say, but he really did blow himself up sky high. It all connected to well. Had he changed the names, and a few of the common scenarios it wouldn't have come to this. You can't link personality, but you sure can link names and events.

Margo Kelly said...

I'm wondering how AMERICAN WIFE by Curtis Sittenfeld survived unscathed... or did it?

Tom Segerson said...

It helps to cover yourself. I wrote a POD memoir about my work life. My former company sent me to Europe on a 5 year contract as a technical writer. I included a disclaimer in the contract that I could write, "novels, short stories and screenplays", etc. outside of work. They broke our work contract, so I sued them. I won, but they won't honor the judgment. So, I wrote my book. They haven't sued me yet, probably due to the judgment hanging over them and the fact that they didn't have the guts to show their faces in court during the three different trials. You want to be a writer, you better be tough.

JS said...

Margo, public figures have limited protection against libel under US law.

Romans à clef about politicians, movie stars, even magazine editors (The Devil Wears Prada, anybody?) are considered quite differently by US courts than are fictional portraits of private citizens.

Steve Stubbs said...

This is nothing new. In the 1970s Gwen Davis was sued successfully by a psychologist for her novel TOUCHING. The defamed individual had to radically change his appearance, gaining forty pounds, wearing gaudy rings on his fingers, bleaching his hair, to make himself resemble the character in the book. But for $100,000 you do whatcha gotta do. What won the case was surely not the bleached hair and the newly rotund appearance and the rings but the fact that he had marathon therapy sessions with himself and his clients NEKKID. Yes, that’s right, they were NEKKID. Apparently the idea was to keep novelists like Davis from surreptitiously taping the proceedings. As the psychologist said later, he was sure she did not have a tape recorder hidden in her clothes because she was not wearing any clothes. Novelists, like psychologists, go by the maxim that you do whatcha gotta do. She bared it all for the sake of Art. Only TOUCHING was not exactly Art. Whatever. She bared all anyway. No other psychologists insisted on seeing their clients in the buff, so it was obvious to any moron Who Was Satirized In The Book.

In another case involving a much better writer, Leon Uris was sued by a former concentration camp doctor for the book EXODUS. The fact that Uris did not say anything about the doc that was not true was irrelevant. The case was heard in Britain. If you have read about “libel tourism” you know what that means.

Uris was outraged in the first instance that a concentration camp doctor would never be prosecuted and start a prosperous new career after the war to boot. That he would sue someone for telling the truth motivated Uris to in effect do a George W. Bush and say, “Bring it on.”

The result was fictionalized in Uris’ QBVII, which is arguably a literary masterpiece. In life as in the book, the jury found for the plaintiff but handed him a Pyrrhic victory. They awarded him a damage in the amount of the lowest coin of the realm and ordered him to pay court costs and attorney’s fees for both sides. But he “won.”

SundaySoup said...

The lawyer better hope they get the lawyer's fees on appeal 'cause $100k probably doesn't even cover her bill.

Someone just told me, "I can hear your husband's voice throughout Restoring Harmony."

Uh. No, you can't. I would never do that. Not me.

Daisy said...

So what would you call a work of fiction written in the form of a memoir? (Not that I'm writing one; I'm just curious.) Or is that such a non-starter of an idea that one shouldn't bother?

Janet Reid said...

Daisy, well, one might call it "a novel"

Jan Markley said...

What about Jeannette Walls' Half Broke Horses which is described as a 'true life novel.' What do you make of that?

Scott said...

Janet,

This a timely post for me as well. I'm writing a memoir at the moment. There's nothing fictional about it, but I know if it is ever to see the light of day, I must publish under a pseudonym.

I also know I will need to change the names of the players, which will primarily be family members. But work folks will also be included. I know I will need to change physical descriptions, if they're used at all.


What's troubling or confusing to me is setting. For me, keeping the setting the same is really important. I know, with some investigation, I could completely change the settings, the towns and such.

Advice? If I keep it the same, am I a lot more likely to get my ass sued off?

Thank you!

Jeania Kimbrough said...

Is this meat of this case about writing fiction drawn from real life or defamation of character? It seems to me that it is mostly the latter:
“the jury found in favor of Smith and her publisher on the allegation of invasion of privacy and declined to award attorney fees to Stewart.”
If the slutty, alcoholic traits she’d given to this character were true, I wonder if there would've been a different outcome.

cgar said...

What about a real life situation that happened to me, my ex-daughter-in-law and my family that went national? Should I change the names since I don't want to scar my grandchildren with knowledge of what went on around them? What would you call this type of novel?

Lon said...

If a novel is written with any characters based on real people in the authors life, is there a release form that can be signed by the people the characters are based on? I would have to imagine that plenty of authors base characters on people they know without getting sued. And for the authors that want to be careful? Is there any type of form that allows for a person to be written in to a book?

College Boy said...

I don't think that the lawsuit precludes autobiographical novels. There are two characteristics of the novel in question, either one of which would be okay, but the combination of which was libel. The first is that the character matched the real person in so many details that there was no question who it was. The second is that additional details were added that, if applied to a real person, is defamatory. You have to have both and it has to be egregious to lose such a lawsuit.

I don't worry about any sort of suit from my writing because where I use real people, the DEA has the body wire tapes to back me up. (Not entirely kidding).

-Mike