I am trying to determine whether I need a contract with the woman whose coming-of-age story I'm turning into a middle-grade novel. I wish to compensate her for her time and cooperation. But am I also obligated to contract with her for her story?
The woman says she would like me to use her real name in the book, which takes place in a now-defunct culture. However, in crafting the story I've had to fictionalize dialogue and various details surrounding key events (all the while fact-checking). Since I'm not calling this non-fiction, should I also fictionalize her name?
You're missing the one thing you're really going to need from her: permission.
Here's what the National Writers Union says about the warranties and indemnities clause of a publication contract:
VI. WARRANTIES & INDEMNIFICATION1. General provisionsIt is not unreasonable for the publisher to ask that you promise that the work you are submitting is original, that it has not been previously published (unless it is a reprint), that it does not infringe on someone else's copyright, and that you are free to grant the specified publishing rights.Most standard contracts will also ask the author to promise that the work is not obscene or libelous, that it does not invade anyone's privacy, and that it does not contain recipes, formulas, or instructions that may be"injurious to the user."All of this is known as the author's warranty, and it is usually presented together with what is known as an indemnification clause, which makes the author responsible for any legal expenses and damages resulting from lawsuits that involve violations of the above promises.
If you are writing a book, using her name and story, you need her to sign a contract that says she gave you permission to do so, that she won't sue you for payment if the book hits the jackpot financially and that this permission applies to every other use or license deriving from the book (ie film)
In other words, you need an intellectual property lawyer here, and this is something you really do not want to mess around with.
It's not the outcome of a lawsuit that will kill your bank balance, it's the cost of defending one. And for something covered in the warranties and indemniities clause you are ON YOUR OWN for litigtaion insurance coverage. The publisher is not obliged to help you at all.
Get legal advice here. Do NOT rely on an agent or editor's advice. This can come back to bite you in the asterisk many years later, particularly if your subject dies and her heirs take exception to you cashing checks and not cutting them in.
The lawyer will advise you on other things you'll need in the contract as well.
Please don't mess around with this or think "oh it won't matter" cause this is not a problem you want to find yourself dealing with.