Friday, May 08, 2020

What is the legal line between reality and fiction?

What is the legal line between reality and fiction?

Thinking about the The Morning Show featured on Apple TV, it is clear who the piece is actually about coughMattLauercough.

Let’s talk legalities. Say a person has had a deeply personal experience and wants to pen a novel on said topic, which I believe is how 95% of novels are born. How much detail on persons, places and things (specifically persons) can you get away with before the people/ characters you’re writing about are recognizable to that person and they can sue you? What are the boundaries of this? Can superfluous details be changed (hair color, location, career) or is that not enough?

The story is going to be told with fictional details, dialogue and events that aren’t factually accurate (just pieced together from emails and texts) and of course an ending that is entirely and wildly fictional. But the scenario in which the story happens is real. How far can an author go?

If you mean how far can someone go and not get sued, put down your pen.
Anyone can be sued for just about anything these days.
I think of Devin Nunes suing a parody Twitter account cow for example.

If you mean how far can you go and LOSE in a suit for libel, that's much much trickier.

You can say almost anything about a public figure (Hilary Clinton kills her pets) and be ok.
You can say almost nothing about a private person with deep pockets and a thirst for revenge.

What's going to define how far you can go is the warranties clause of your contract which will say you can not knowingly libel someone.
The Work does not contain any material that violates any right of privacy, that is libelous or that violates any personal or other right of any kind of any person or entity.
So, what's libel?
It depends.
And you don't want my opinion on this because it's not my area of expertise.

You want to dig around and research what constitutes libel.
Here's a place to start: NOLO Press.

Libel is often in the ego of the beholder.


Mister Furkles said...

"...a person has had a deeply personal experience and wants to pen a novel on said topic, which I believe is how 95% of novels are born.

You may believe that if you wish but it isn't true. You need to read more novels. What you're talking about is memoirs. Try fantasy novels, romance novels, disaster novels, dystopia and others.

CynthiaMc said...

I heard once at a conference about an author who wrote unflattering things about her therapist, who sued. She had changed everything about this person, who in the meantime had a sex change and hair color change and ended up perfectly matching this character. I don't know if the story is true or not (no names were given) but the story stuck with me.

Ellen said...

It's hard to know if a person will see themselves in your novel. But it's a good idea to change their appearance and as many life details as possible. This has the added benefit of allowing your imagination to kick in, and the character to take on a life of their own. You'll find yourself less chained to the actual facts of the story, and will probably write one with more drama and better structure. (Real life can be fussy about fitting into a story structure.)

But my favorite advice on this topic comes from Anne Lamott. In Bird by Bird, she advises writers who are basing a character on a real man to "change everything that would point to him specifically," so he doesn't sue you. And the best insurance: "Give him a teenie little penis so he will be less likely to come forth."

Good luck!

nightsmusic said...

First off, I completely agree with Mr Furkles. You either haven't read enough or you're reading memoirs and biographies, neither of which constitute 'fiction' though I would imagine in those two genres, there's a lot of made up stuff because memories are fallible.

And for what it's worth, you can write a story about a three eyed, six foot, 400 pound mercenary who wields a whip and pitchfork and someone will come forward to claim you wrote the story about them. You can't get away from it. In a litigious society like ours, there's always someone out there waiting to sue. So make sure you have an iron clad contract and hope it doesn't happen, but even with said contract, it won't stop someone. It might make a difference in the outcome, but the suit will most likely still happen.

AJ Blythe said...

What Mister Furkles said. I'm sure that people I know and experiences I've had have helped shape my book - but that's because those things have helped inform me on how characters might react in a reality. I've certainly never wanted to write anything directly about a personal experience.

Sounds like you are treading a fine line between fact and fiction and for that I have no advice. I'll leave that to the experts and just wish you luck, OP.

Ann Bennett said...

Wow, 95 percent of novels are born of personal experience. True, chance encounters and overheard conversations are part of the fodder. But there is a lot of fantasy and alter egos in what creative people write. I think the number should surely be much lower, like five percent.

Some pretty boring stuff has been written based on personal experiences. For me and my family, it would aptly be titled the "tater chip chronicles". We are as exciting as an unadorned baked potato.

You really need to write a memoir if it is a personal experience of your life. If what you say is true, it is not libel. Now whether the person you out has a right to privacy, you need to consult a lawyer.

I hate the idea that people assume so much of what writer's write is true about their life.

NLiu said...

Well, I like to write about dragons. Sure hope none of them sue me. Deep pockets? Try deep hoards. And as for grudges? Hoo boy.

Better hire me a flameproof lawyer.

Kitty said...

I write fiction, but I stay clear of using family stories for this reason. And trust me, some of our family stories are real doozies.

John Davis Frain said...

It's interesting how a throwaway line can completely pull a reader out of the narrative. Like others, I was distracted by the 95% line. Totally stopped me. Tainted everything else I read in the question because that line was so far from accurate, so now I'm thinking that everything else in this question might be similar.

A good lesson.

I'll have to go back and read again to get the actual question because I've forgotten it. Maybe there's a lesson there too.

And Ellen, I read Bird by Bird -- how in the world did I not remember that piece of advice? That's filarious! Maybe she was talking about me and so I've chosen to erase it from my mind instead of suing and suffering the publicity of winning.

Jennifer R. Donohue said...

Another component of somebody suing you over how they perceive you as having rendered them on the page is they have to, in theory, be reading your work to begin with. Now, I don't want to be uncharitable regarding my friends, family, and acquaintances but...well some indicate to me that they are reading/have read and others do not.

Katja said...

OP, this could have been me asking a few years ago. I had exactly the same problem.

And maybe I still have it. Maybe not. Hopefully not.

I changed ALL names of persons and ALL names of 'identifying' places. Plus I changed some looks of characters. But: I did not use a pen name, and I didn't do it because *I* needed/need the world to know *I* wrote what I wrote.

Via my proper name, theoretically, I suppose, the characters in my first book could be 'identified' in real life. Unless I claim it's fiction.

Maybe one day I will be sued. Because of a thirst for revenge. Then I would have to find my own way of how to sue - for emotional, domestic mistreatment maybe... resulting in a mental illness that has disabled me to a crippling point.

But I'm hoping not to be sued.

Good luck to you, OP!

Kae Ridwyn said...

"Libel is often in the ego of the beholder." - I love the way you sum things up so perfectly, my Queen :)
Thank you!

Brenda said...

Hence the phrase ‘is based on the novel xyz’.

Android Astronomer said...

Craig Sanders of 1243 Virginia Drive in Lancaster, Idaho: "Is it true you named your villain after me in your most recent novel?"

Me: "So what if I did? It's just a coincidence."

Craig Sanders of 1243 Virginia Drive in Lancaster, Idaho: "I should sue you. That's slander."

Me: "I think you mean libel. And it's fiction. Did you read the disclaimer?"

Craig Sanders of 1243 Virginia Drive in Lancaster, Idaho: "You're just trying to get back at me because I threw you under the bus and got you fired for a mistake I made that cost the company $10 million."

Me: "Loser who just confessed on tape says what?"

Craig Sanders of 1243 Virginia Drive in Lancaster, Idaho: "What? Oh, crap..."