Wednesday, October 23, 2013

Question: Defame and fortune

When writing a novel loosely structured upon events that took place in the author’s childhood (an example that comes readily to mind is “To Kill A Mockingbird”), how far afield ought one go to disguise fictional characters who are based on actual flawed people, alive, and dead, but with surviving family members?  

You can't libel the dead, so you're probably ok with everyone who has passed on to greater glory. The living ones you'll need to be careful about.  And by careful I mean not just identifying a guy as having a small dick cause who would ever claim to be that guy (which is advice I've heard more than once at a writer's conference.)

It's best to change as much as you can so people who know this character won't say "aha!"

It's novels written for revenge that can get you in trouble. There've been two cases I know of that went to trial because of thinly disguised fiction.  The key word here is thinly.

The one that caused us all to laugh is this one against AuthorHouse.
The one that wasn't too funny at all is this one.

That said: don't worry.  Anyone can sue anyone for anything these days and if you've got litigious enemies, well, nothing will dissuade them from suing or threatening to sue.  That's when you get a very good IP lawyer to send a very sternly worded letter that cuts them off at the knees.

If you're writing a novel, we all assume that you made it all up.  And if anyone ever asks, that's what you say too.

For a more comprehensive opinion,  try this post at the Digital Media Law Project on suing for defamation in fiction.


Jane Lebak said...

I laughed so hard when I read about the "tiny penis" in Bird By Bird. But Lamott was a being whimsical there and didn't intend it to be one's sum total defense against libel. In fact, she does suggest drastically changing any character you base on a real-life character.

Stephen Parrish said...

Betty Smith was sued by her cousin Sadie Grandner for $250,000 for basing the character Sissy on her in A Tree Grows in Brooklyn. (They settled for $1,500.)

Steve Stubbs said...

Whoa! Well, I am going to tell everyone I know who is writing a book defamatory of Brandewyne to libel someone dead, like Napoleon, instead. If she would sue a beloved ex husband, she would sue – well I’d better be cautious and nor speculate about what she would do. Least said, soonest mended, you know.

But I can’t help wondering what would have happened if the fake bomb the libelous ex-husband allegedly planted in front of his house and blamed on Brandweyne had gone off and blown the facade off his house. Or, worse yet, what would have happened had his divorce judge granted him a fake divorce and they were unwittingly still married. This story has lots of possibilities.

Calorie Bombshell said...

Stewart won her defamation case against Haywood Smith and St. Martin's Press (among others). However, the jury awarded her a pittance. In the final analysis, Stewart probably spent much more than that litigating her case.

Elissa M said...

This is one reason why I write fantasy. Dragons never sue. They just flambe you.

Steve Stubbs said...

@Calorie Bombshell, check out the EXODUS case against Leon Uris, one of the master story tellers of the last century. In the book he mentioned a Polish physician by name (real name) who worked in a Nazi concentration camp during WW2. Whether the doc was guilty of anything or whether he just happened to be in the wrong place at the wrong time, I am unable to say. Apparently Uris blamed him for being in the camp, and the doc took umbrage at being mentioned in the book. His behavior after the end of the war was admirable in the extreme and he was honored by the British government. Using Britain’s peculiar Chancery laws, which are designed to give the rich a weapon against the poor, the doc sued Uris for libel. The jury found in favor of the doc and granted him an award in the sum of the lowest coin of the realm, one halfpenny. They also directed that he pay court costs and attorney’s fees for both sides. Talking about a Pyrrhic victory! Uris not only paid nothing but used the incident as the basis for a riveting bestseller that became the basis for an Emmy winning TV movie, QB VII. Very fine book, by the way.

Jennifer R. Donohue said...

This is a thing I worry about/don't worry about. I need to get published first for it to matter, amIright?

But really. I can't imagine just putting not-my life story in a novel with a few other add-ons and calling it fiction, with the assumption that the real life inspiration wouldn't notice. Especially if she was my friend and lived nearby, which means she felt socially obligated to read the book (in the case of the Smith case).

Terri Lynn Coop said...

The Red Hat Club . . . all those old biddies I've seen in red hats over the years . . . WHO KNEW!

Seriously, that was stoopit. The AuthorHouse one was funny, but the other, just wow.

My nemesis does get a nod in my WIP. But just a physical characteristic I mention in passing. My betas get it, but no one else would.

"SuSu's" life story is amazing and shards of it could have been sprinkled through a dozen books. But what was done was just wrong and dumb.

I had someone file a Bar complaint on me for "misuse of my power as an attorney to intimidate and mock him in such a way as to reduce his sales of [item] from 4.2 units per week to 1.75 units per week." The Bar response was "dude, whatever."


Dr. Cheryl Carvajal said...

All I can say is, when in doubt, exercise caution. Better to change a ton of stuff so that the reader never recognizes he/she is the basis for a character.