Wednesday, June 10, 2015

Query question: my novel is based on someone's life

 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:


1. General provisions
It 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. 


Lance said...

Is this similar to a model release form used by photographers? I understand the need for the lawyer, but prior to this morning, I had been considering adapting one for use of a person's name in a work of fiction.

Pharosian said...

Hmm. It sounds like Lance plans to use a real person's name for a fictional character. I've heard of authors that hold contests for fans, in which the prize is getting a character named after the winner.

But what if you choose a name for a very unlikeable character, and someone who really has that name claims defamation? Is the author safe as long as the character isn't a public figure? But what if I accidentally choose the name of a state congressman I've never heard of? What are the guidelines here?

Sam Hawke said...

Just seconding what the QOTKU said here. Definitely, definitely get legal advice on this one. Specific legal advice from an IP law specialist. No-one can really afford the financial and emotional strain of a lawsuit. And no matter how peachy things seem between you now, you just do not know what would happen once the book was written and out there. Things can turn ugly really fast.

Kitty said...

How does this apply when writing your memoir? Do you suppose Frank McCourt had to get permission from his brothers and parents to write about them? (I've read all three of his memoirs twice and love them.)

S.D.King said...

Hmmm...I included the name of a hockey great in my kids'book, since my MC is a big hockey fan. Don't think I would have to worry about that, but this is good information. Seems like name dropping is done a lot.

That part about the heirs? No kidding - any happy feelings can vanish with the next generation.

DLM said...

It does sound like there's verbal consent at least - "she would like me to use her real name" - but oh my yes, this could be so difficult.

Glad everyone I write about has been dead for a millennium and a half.

Anonymous said...

Whoa. That sounds like something that could go very bad, VERY quickly. Second, Third, and Fourth what Janet said.


Lance said...

Yes, several characters are named after real people, but used fictionally. Thank you for the reinforcement, but Ms. Janet's advice has its own weight, gravitas, thing.

french sojourn said...

"It's easier to ask for permission then to beg for forgiveness"

I used this constantly when a client wanted something gray when dealing with the Department of Building and Safety in Los Angeles. The building inspectors I worked with respected my track record to the degree, I could usually get a lot of "spirit of the code" approvals in lieu of "letter of the code" requirements.

The answer to the opie's question has made me re-evaluate using a friends fathers name in one of my wips.

As usual a great informative post.
Cheers Hank.

Susan Bonifant said...

Anne Lamott said:
"...As I’ve said a hundred times, if people wanted me to write more warmly about them, they should have behaved better."

Today's post is fascinating. It seems basic that a collaborating subject should give permission that covers as many contingencies as possible (the heirs closing in for example), but how about when a work of fiction is "loosely based" on another's (not very nice) life/deeds?

Can an author ever release themselves from liability via the "any resemblance to actual persons, living or dead is purely coincidental" disclaimer?

DLM said...

It's funny, I just had to change the name of a character who turns out not to be where I thought she was from. In learning she's actually from Carthage, I also learned that Carthaginian feminine names are THIN on the ground - Dido, Zenobia, and Jezebel almost entirely cover what I was able to find - and I did not want to name this character for any of those. I looked deeper into the name Zenobia, which may well have been the original root of the name Zainib (and several spelling variants), the name of several members of the family of Mohammad. Zenobia herself, predating Islam by quite a bit, is said to have signed her own name as Zabbai.

As it happens, I have a friend named Zinab (pronounced zay-nib). Though I am not using that spelling, I actually did reach out to her to see what she thought of the variant I chose (none of the above). She loves it.

I would say, given the provenance and the fact that I'm not using her name exactly, there should not be a legal issue here. But it's a fascinating question.

Also, the bit about recipes is rather attention-getting. The world we live in.

Sam Hawke said...

Susan Bonifant said...

I am not an expert in privacy or IP laws in the States, but my guess is no, that disclaimer probably doesn't do much. If a person is identifiable (even if not named), I think that's probably going to be your issue if it comes up against privacy or libel type claims.

Donnaeve said...

This is one of those situations where the story must be absolutely mesmerizing in order for the OP to want to 1)write about it, 2)seek out professional legal help in order to CTA(cover their asterisk) given Ms. Janet's advice.

What's curious (at least to me) is this: "The woman says she would like me to use her real name in the book, which takes place in a now-defunct culture."

Why? If the rest of it is fictionalized, what's this thing with using her real name? Maybe b/c even if the OP used a fictional name, this person could still come back and claim the story as theirs and all the other hoopla which might/could ensue listed by QOTKU and the others.

And like Susan mentioned, I would have thought the same about the standard disclaimer for story, characters, situations "is purely coincidental"

Off topic: Julie W - read your comment from yesterday's post where you were discussing the term "I swan." I know it as "I swannee," meaning, as you said, "I swear." My mother picked it up from my aunt and peppered her conversations with said aunt, with that very expression. I used it a couple times in my first book. And get this..., b/c I had it in my first book, I bought a t-shirt a while back and guess what it says on the front? Yep. "I swannee!"

I notice we haven't heard from Julie Hoover lately. I hope her pancreatitis isn't the issue. That's some serious illness. She mentioned something about her enzymes being sky high.

Anonymous said...


"...As I’ve said a hundred times, if people wanted me to write more warmly about them, they should have behaved better."

I have the opposite feeling. For the most part if I use people in my books, it's people I feel warmly about. I'm not going to empower people I think have treated me poorly.

There are monsters in life and the monster keepers who allow them into our lives. I'm not giving either of them one whit of notoriety.

I see those cutesy tee-shirts that say "Be nice to me or I'll write you into my next book." and I want to ask the writer why they would make famous who was mean to them? What a horse crap attitude. Give power to the people who lift you up and let the others whistle in the wind.

There will always be a Rose or an Ovina in everything I write from now until the day I die for an aunt I lived with whose name was Rose Ovina.

Trust me OP, the minute money is involved, all good thoughts will go out the window. The woman may just want her story told now, but if money comes in later, Usul, there will be lawsuits the likes of which even God has never seen.

Trust Janet on this. Get a lawyer and have the woman sign everything, preferably with blood. A little hair included in a wax seal on the contract wouldn't be amiss.

If money is involved people will slice your throat nine ways from Sunday with a dull butter knife and not think twice.

DLM said...

Julie, the hair should have a follicle too, for the best forensic opportunities. :)

Dying of the Dune references. WORM SIGN!!!!!

I really don't write about people I know; I gave Queen Saint Clotilde the slender, small hands of my best friend, but there the similarity ends. Indeed, the idea of knowing anyone like ... most of my characters, is enough to give a shudder! I have issues.

Donna, have heard swanee - but more often in reference to a river in a certain song. Most often heard it as "I swan" myself.

Thinking of the "purely coincidental" disclaimer - that only works if it's TRUE. In this case, we have it on Teh Intarwebs, there is a specific person on whom this character is based. You can't really say "oh no, my character Felicia Buttonweezer is not THAT Felicia Buttonweezer" after having said in public, "I'm writing about someone real and she wants me to use her real name and the story is true but fictionalized."

There are cakes, and forks, and opportunities to eat the one with the other, but there's no guarantee against indigestion - like an attorney.

Dena Pawling said...

Janet Evanovich set her Stephanie Plus series in Trenton NJ, an actual city. Michael Connelly used Los Angeles. But Sue Grafton set hers in Santa Teresa, which is fictionalized Santa Barbara.

If your MC “goes by McDonald's for lunch”, you're probably safe. If your MC finds maggots or broken glass in the burger, you need to use a fictional restaurant. And then there's always a chance that the specific named place is highly protective of its mark [Disney comes to mind], so many times you're safer going with a fictional name, even if your MC gushes all throughout the book about how wonderful said place is. I use several real places like this in my WIP, none negatively but you never know, and one of the things I'll definitely be doing is discussing this with my agent [I still love that term] and I might change them just because of this issue.

In my WIP I use actual courthouses, altho the city my MC lives in is fictional. Most of the hearings and trials I wrote about are based on real hearings and trials, or are composites of several real hearings and trials. Trials are open to the public, they're not secrets, but I've also changed enough details that if someone reads the book and actually was present at that hearing or trial [or one similar], they may think “I had a trial like that once” but they're not exact duplicates of what actually happened.

One of my judges is based on a real judge, with a few changed details. It is possible that people may suspect which judge I used as my model, altho the judge in my WIP isn't exactly the same. Other judges are composites. Some of the other people in the story are based on real people, with certain details changed so it's not an exact description.

It always makes me wonder, tho, that I might have unknowingly described a real person. This can happen to any author, tho, either in the description or in the name. I believe that's the reasoning behind the “this book is a work of fiction” disclaimer you see at the beginning of all books, if you made up something that coincidentally sounds similar to a real person or situation. If our stories make sense, it's always possible that the people and/or circumstances really did exist, even if you didn't know it when you wrote it.

And Janet is absolutely right. The cost of litigating is generally much higher than the outcome [IP lawyers are expensive, not like eviction lawyers lol], whether you win or lose. You don't want to go there. And the more money your book brings in, the more likely someone will want a piece of the pie. See the 50 Shades lawsuit just settled in Texas
And this “interesting” one here in my lovely state of California

My E&O carrier would look unfavorably on me [understatement] if I made any attempt whatsoever to give legal advice in the comments section of a blog, so I'm not doing that, except to say “get thee an attorney.”

Megan V said...

Like Dena, I can't give legal advice either-for much the same reasons!-except "get an attorney." There are plenty of IP specialists out there. Better to face the fee-size bite of the lawyer-shark than risk losing your entire asterisk from the lawsuit-size bite of a pissed off inspiration-shark.

Don't even think that a lawsuit can't happen to you. is a good resource to start your search for attorneys.

Craig F said...

It is obviously a pretty large problem. If it wasn't that disclaimer on the copyright page of novels would not be there. It is also true that any name you pick probably is attached to someone somewhere. It does not necessarily make you libel. You must, however, CYA as much as possible and do not think you understand the motivations of other people. Money is a great aphrodisiac and it, or the thought of it, can make strange things crawl from the woodwork.

I dislike lawyers almost as much as prologues but the difference is that I retain three lawyers. I still try not to deal with them often. I do not invite my lawyers to dinner for example. What is more important in this instance is setting a timeline. You can not ask permission after you query. It is just another duck you have to line up.

I say that you can not understand the motivation of others. In my regular life I design a particular type of sporting equipment. I recently designed something really radical. I offered it to a friend who manufactures those kinds of things. He refused it and said it was too radical. It would fail.

It is now the buzz of the industry. People are not buying his products and are waiting for this product to reach the retail market. Somehow I am to blame for this state of affairs. Our friendship fell apart when he demanded I design something to repair his market share. I am a lot of things but I can not work miracles. This is how I ended up talking to a gaggle of reporters yesterday about running for President. There is another guy with the same name as me who has tossed his name into that particular hat. My ex-friend led the media down a gilded path that led to me. Do not underestimate how strange the world can be.

What a disgusting reCaptcha. It asked for food and had a picture of a guy using a plunger on a toilet.

S.D.King said...

This makes me think of the book "The True Meaning of Smeck Day", where the main character is a lovable alien named J Lo. Not sure how he got away with that - it was changed for the animated movie, which coincidentally used the real J Lo as the voice of the mother.

BTW - it you have not read that book - get it. Yes, it is a Middle Grade book, but it is laugh out loud funny and definitely not just for kids. One of my all-time favorites. (I am afraid to see the movie - I just fear that they wrecked it.)

Susan Bonifant said...

And there's this expression: Knowing a writer is like hugging a pickpocket.

I agree with Julie's point about "done-me-wrong" writing (I would add that I value my mental health too much to spend that kind of time at the page with someone I don't like). Still, I can think of not-very-nice people from whom I might want to steal a line or experience.

But Dena's point around accidentally slandering someone made me think. It never occurred to me that characterizing a city/street in a way that is conventionally accepted - but not happily - might come back to bite me in the asterisk. See? I stole that.

I think I got me some names to fix.

Laura said...

I can't speak for books, but when I worked in TV, the legal department vetted names for every single character. It didn't matter if someone had the exact same name -- there is a Harry Potter, living in Florida, I think -- the problem was when they had the same name AND other identifying features of our character - same or very similar job was the most frequent problem, and also a level of, yes, people might think we were riffing on them, which is unquantifiable. It didn't happen often, but it did happen, and never once was it other than pure coincidence.

Memoir is a different animal; you may be saying rotten things about a specific person, but if it's TRUE, that is a complete defense against libel. You should be careful, though, about casual assertions that aren't necessarily part of your personal story. American Sniper lost a massive defamation suit on something like that.

Definitely see a lawyer, one who has done this before. Murky grounds.

angie Brooksby-Arcangioli said...

Here is website I found that sheds some light. I think this is where I found the brand name discussion.

Rights of Writers

Steve Stubbs said...

Margaret Mitchell was sued eleven times in the first six months after GONE WITH THE WIND was published and refused to write again. Michael Jackson’s estate is being sued by folks who claim they wrote all the songs and Jackson was a fake. I’d better stop. Who knows whom they are going to sue next?

If you writer anything that sells, you WILL be sued. So can you recommend a company that sells author insurance? I was not able to find one searching on google.

Try entering any combination of proper names into and you will likely conclude that someone is using just about every name you can think of.

Also how do you find an honest lawyer? Isn’t that an oxymoron?

Marc P said...

The bones of her story 'as narrative' are not going to be original. Stories are never really original in some ways - what makes the bones of the narrative original is the authors take on things. Their voice. CS Lewis wrote in his preface to Paradise Lost that Art lies in the Universal expressed through the Individual to the Universal. So in a bizarre kind of way it is the opposite of what is unique is important. It is what is universal that hits home and resonates with people. If it is to be her story in a biographical sense then draw up a contract as advised with the legal beagles. As a writer my advice to you is look at the heart of what it is you wish to write about and write your own story. Ideas aren;t copyrighted like people are.

So take the essence and use that would be my advice like I say. Unless you wish to do this as a kind of ghost writer and then let her hire you or go splits etc on profits. There is a huge amount of precedence on this kind of thing and the Legal Gals and Boys will show you the kinds of deals/contracts etc. But like I say... write your own. remember George Bernard Shaw never sued the Pretty Woman people. And the Greek original never sued GBS.

Karen McCoy said...

I'd like to echo Kitty's question and Dena's follow-up. I've partially drafted a fictionalized version of my experience in libraries--some stories are true, some not, and the library (and the people) have been renamed to protect the guilty.

So I'm wondering if these legalities apply to memoir, or fictionalized versions of memoir. I'm guessing they probably do.

ReCAPTCHA gave me cakes, and it isn't even my birthday.

Stacy said...

If you live in a major city--or even if you don't--you might be able to find a creative rights organization that can pair you with an attorney who will donate his or her time pro bono. Chicago, for example, has Lawyers for the Creative Arts. I found a link that might a good thing to bookmark:

The LCA is listed, so it looks legit. (I have used LCA's services so I know.) At any rate, you can google your state and "creative rights organization" or something like that and see. Often these organizations will extend their services beyond the city where they're physically located. Good luck!

angie Brooksby-Arcangioli said...

he other option might be to co-sign. Or write a contract where she get's a percentage. She might be 'peachy' but family can be vipers. If the story hits big and she did not have a percentage she might sue anyhow. Laws are made to be interpreted. I'm sure Dena can say somthing about that.

Is there a place to find basic manuscript DOs and DON'Ts regarding intellectual property?

I read on AgentQuery that using real brand names is murky water. On person made a point why JK Rowling was smart to invent a brand for her beans. She has total control over that brand. I also listened to a talk by Stephen King where he said his neighbor accused him of using their story.

I think what it boils down to is the loss of control over your book, your characters and your success. People will interpret what you write, what you say and what you did not say. Especially when money is involved.

I suggest OP use a different name and ask for the person to sign a release, state in the book jacket that it is a work of fiction. It sounds like the person has a vested interest already. Sounds already very complicated.

But if you did offer a percentage then the person might be a boon to marketing the manuscript.

Good Luck.

Donnaeve said...

Craig - thank you for your congrats, and I wanted to sy, that IS a VERY strange story. How did you find out it was your ex-friend? (Either way, talk about sour grapes)

Yay, ice cream!

Anonymous said...

Well, I had this huge long thing written up... then the power went out. I've been told it may go out again yet, so let's see if I can make this short and to the point.

Number one point, which Janet and several others have mentioned is: consult with a lawyer. If you don't think you can afford one, you'll find that some writers' organizations like the Author's Guild (in the US) or the Saskatchewan Writer's Guild (my provincial writer's organization) have lawyers you can consult.

I was looking to see what other organizations had lawyers, and found this on the SFWA site (Writer Beware section). It talks about what to do if you're defrauded, but it also has a nice list of places to turn to for inexpensive or free consultations:

Legal recourse and other remedies

Now, my understanding of legalities is: it's up to the accuser to prove their case, whether it's libel or invasion of privacy or whatever. However, as others have mentioned, just going through the process of defending yourself (no matter how right you are) can be devasting emotionally and financially. The more you do to cover your butt, the less problematic a law suit becomes.

That said, the more successful you are, the more looneys are going to come out saying, "You used my idea" or "You used my name" or "You used my life" or "You used me". Look at all the lawsuits Rowling, King, and others have had to face. Of course, it's probably less problematic, too, for them, since they can hire the lawyers.

As for the names of nasty people who wind up in novels: Often they're used for the deceased, who may have died in any number of horrible ways. That's the idea behind using these people: the chance to exact revenge by hurting them and killing them off. And sometimes its hard enough to come up with a new name, so it might be easier to remember this person's name.

"Who's this?" the ME asks the police officer in charge of the crime scene. The victim has been impaled in the worst possible way, as defined by Gary Corby.

Police officer replies, "Jack Smith, no good fraudster. Not in any way related to the customer who stiffed the wannabe writer waiter. Of course."

ME nods. "Of course."

Anonymous said...

Nuts. The link didn't work. Let's try again:

Legal Recourse and Other Remedies

Again, this leads to the Writer Beware section of the SFWA. Some resources to look at if you need to consult a lawyer.

Anonymous said...

Angie: Thanks so much for that link to that blog!

Anonymous said...

Criminy, now I wonder, should I change the names of my horse trader Jetreid and my renowned madam Tawana F'Enske?

I think they've already been compensated. If I remember correctly, those mentions involved coffee or donuts, perhaps both.

"Your honor, Julie Weathers wrote me into a book as a high priced madam and spy in one of her books."

"I see Ms. Fenske. I understand why you're upset."

"I certainly am! I told her specifically, I didn't want to be in a fancy brothel!"

Being a writer is hard. Being a writer who doesn't take good notes is harder.

Colin Smith said...

Late to the party on this one (thanks, work!), but here's my 2 cents for what it's worth.

If you don't have to base your story so tightly on real people, places, and institutions, DON'T! It's fiction, not memoir, not history. People expect fiction to play fast and loose with the fact. Fiction is, well, made up. J K Rowling says she based Gilderoy Lockhart on a real person, but she has never said who. Sure, she doesn't want to be sued--but there again, who's going to admit to being her inspiration for Gilderoy Lockhart. On the other hand, she has publicly acknowledged her childhood friend who was the inspiration for Ron Weasley. The point is, these are fictional characters based on real people, but not closely enough that anyone's going to sue.

Another thought: think how many novels have been written over the past 20 years. What's the probability that one of them has a character called Colin Smith who's an ex-pat Brit? Out of millions of books, there's always the chance. Am I going to chase down that book, that author, and claim royalties? Of course not. Just because one of your characters happens to be called Charlie Windsor, the Prince of Wales is not going to come looking for you (unless, of course, Charlie is married to Camilla and his mother lives in Buckingham Palace).

I wrote a novel that was set in a town based on my home town. There were times when I would get so caught up with trying to describe details of the actual town, finding the correct words for certain landmarks, colors, etc. One day it occurred to me: this is FICTION! No-one's going to fact-check, and if they do, they need to get a life! Fiction is about taking reality and making it fit the story.

So, if your novel hits too close to home, names real people that can be identified, etc., then get the lawyers in for sure. For historical fiction, perhaps--and that's an interesting angle. What are the rules when you're writing HistFic set in the recent past when the people in your story are still alive? For example, a story set in the White House during the Clinton or Bush years?

OK, enough of my vomments. Back to work! :)

NotaWarriorPrincess said...

How on earth does this not wreak havoc on memoir?

Julie said...

Hi. It's me. :)
Went in a week ago; worst acute pancreatitis I've had maybe since 2009 or so. And my kidneys shut down while I was there.

Was discharged still ill and have been fighting to stay out all week.

Went to see MD today and had labs drawn. My own MD is attending at hospital this week, so this was someone else.

I have peritonitis. The pancreatitis appears to have worsened. And the kidneys are hanging in, which is what allows me to be posting now.

We're waiting for labs. MD called my usual doc, who advised that I was competent in managing my own care when ill and would likely do better at home as long as we could keep the symptoms under control and the kidneys working.

So the labs will be important, and if I can get the peritoneal and pancreatic pain under control without becoming completely blotto (and therefore in need of someone else managing it), that would allow me to drink and thereby bring my kidneys back online. If not, I'll be readmitted. Balance of probability has me back in the hospital by this weekend. (To answer questions - I have a congenital malformation called pancreas divisum; for many people, it's no biggie. In me, it's severe enough to force me from medicine and onto disability.)

More about OP when I get home - it has to do with patient stories.


Pancreas fish.

Pls come visit me on FB. I miss you.

Anonymous said...


Sorry to hear about all this. How scarey. I hope you're feeling better soon.


Sam Hawke said...

Colin - it saddens me to say, but boy, there sure are readers who will. If you write about an identifiable place and you say the milk bar is opposite the post office but it's not, you'll get people writing in telling you so. This is true even if you call it something different, as long as people decide it's supposed to be the town they know. In fact it's true even if you're writing secondary world fantasy, for that matter! My friend has received plenty of mail along the lines of 'X wasn't invented until Y date, so your world is WRONG' or 'historically THESE people were treated like THIS' and she has to very politely bite down and refrain from pointing out that IT IS A MADE UP WORLD.

Of course, you are perfectly correct that these people need to get a life. :) And you certainly don't have to pander to them.

Julie said...

Thanks. I feel crummy and I'm anxious, which is unlike me. It's all in God's hands, but I've been able to avoid hospitalization for a year and a half by being very, very careful, and one tiny thing changed and got me very sick very fast. I was writing, in the zone, back and forth with you guys as my word count ballooned (now at 122K and I'm in trouble!). 2:00 I was fine. 2:30, I texted my husband, "Pain." By 4:30, I knew beyond a shadow of a doubt that I had pancreatitis. By 6, we were discussing admission and I was scared - usually, it takes days for me to admit to it, and I almost never actually go in. When I do, it's for dehydration because I don't eat or drink because it hurts too bloody much. And then, I go to the ER and say, "2 L of saline

Anonymous said...

Sam and Colin,

"Colin - it saddens me to say, but boy, there sure are readers who will. If you write about an identifiable place and you say the milk bar is opposite the post office but it's not, you'll get people writing in telling you so."


Zach Recht and I were friends before he became the hot new thing in horror. He was getting rave reviews on his book PLAGUE OF THE DEAD. I was talking to him in a game one night and he was kind of quiet, so we went to whispers.

"What's wrong."

It took a lot of poking and prodding, but he finally told me he got a review that was really bothering him. The guy ripped him up one side and down the other for being so stupid because he had given the wrong directions to a town in Africa. He knew the town was north. He'd been there in the army, he just wrote it wrong.

I tried to point out how many sites are set up just to spot mistakes in movies and how many people comb through books looking for mistakes like that so they can be the one to "take down" a popular writer. I tried to make him look at all the people that loved the book.

He was having a tough time getting past that review because it was a stupid mistake and he knew better.

There's always one in the crowd.

People like that are the reason I've put off writing the Civil War story for years. I have hundreds of Civil War books. I'll research it to the best of my ability, but someone is going to challenge me on something. I've already had several people tell me a confederate spy wouldn't act that way. Sorry, that particular scene was based on a true event.

You just have to do the best you can. If a person is very charming, they might even be able to turn that person who wrote into a resource.

"I know for a fact that bridge was blown up on July 5, 1862 because my great, great uncle lost his arm while planting the explosives there. Your dates are off."

"That is absolutely fascinating. What else can you tell me?"

It's amazing what people will tell you with the right prompt. That was always the best part of working for the magazine. I had one owner who refused to speak to me after his horse won a race. I did three interviews and that was it. I never wrote anything embarrassing, but he said he just couldn't shut up when he was talking to me and was pretty sure he'd give me the combination to his safe at some point. After that it was interviews with his trainer only.

Maybe I'm off, but that's how I'm going to try and handle people who find holes. We'll discuss them over virtual sweet tea like civilized people

Julie said...

Stupid phone. Just lost whole comment.
Please come visit me on my FB-carkoon equivalent. I don't want to annoy anyone, esp Carcharodon.

1) There's a book I need to write. I'm the only one who can write it. I've collected stories from patients, nurses, MD's, nutritionists, ministers... All needing to tell their tale. But with Janet's advice, can I write this book? It needs to be written. American medicine isn't broken because the system is broken. American medicine is broken because its heart is broken. And this, more than any congenital malformation, is why I did not scratch my way back in. I can teach ignorant; I can accomodate stupid and relieve weary; I can pacify angry and mentor juvenile. But I can't do a bloody thing about apathetic, and it just grew increasingly worse as time went on.

2) And as for me, I'm worried. When you're at home with peritonitis because you are the only MD in the state who understands what you have - that's a problem. I'm in pain. I feel crummy. I haven't had to cope with this for a year and a half. I don't have time for this.

I have a series I have to query, a new MS to clean up for possible pitch in August, a Reacher book to read and an Elizabeth George book on craft. I can't do weeks of messing with my pancreas.


Thanks for listening.

Terri Lynn Coop said...

As someone who spent 7 years in intellectual property litigation, trust me, you don't want it. You are looking at $15K minimum retainer to get an IP litigation specialist to even take your calls. Had I been paid for the work I did, I would have no student loans.

Most IP attorneys will do a free or reduced cost consultation, usually around $50. Instead of Avvo, see if your area is covered by an arts council. One of my friends in Kansas City works with local artists on things like trademark, copyright, licensing, contracts, releases, and such. Another is the Bar Association for the county where you are located. They should have a listing. This is not a time to stint, you want a consultation with a top drawer IP-Publishing lawyer.

The fact that she wants you to use her name gives me pause. She is feeling invested in the story, even though it is fictionalized. Make sure any contract doesn't give her story approval since you are fictionalizing events to make the story flow.

Not only are you at risk if it makes eleventy-seven-million, you are equally at risk if it gets panned. "Writer has skill, but story is unbelievable and insipid, 1-star." Can she handle that? It seems to me like she may be seeking some sort of emotional validation from having her story told. Is the writer ready to deal with that?

And, yes, what if it were to go nuts and a movie company want to pick it up?

So, you did the right thing by reaching out and asking the question, but this is more complicated than a forum or a net search.

Writers only have the "rights" that a judge gives them if they are sued.

The disclaimer page helps a bit if someone gets it in their head the book is about them or OMG THERE'S NOT A GAS STATION ON THAT CORNER IN THAT CITY - WRITER IS STOOPIT - ONE STAR.

I took a few liberties with Austin, Texas (oh please, like I'm the first) and turned the town of Livingston Texas into the fictional Cochinelle so I could put stuff where I needed it to be to make the story work. I copied Lee Child's disclaimer, hey, if you're going to steal, do it like a BOSS.

If the writer does consult with an attorney, I hope she'll come back and share the wisdom with us here in the shark tank.


Katie Loves Coffee said...

Julia, I hope you feel better soon. As for this whole thread - eek! Thanks all for the resources. Sounds like something important to learn (and fret over before sending my query letter). I wonder, do agents point out any potential legal/copyright issues that the author didn't think of? Or the publisher?

Anonymous said...

Julia, that really, really sucks. I do hope you feel much better soon. It's hard enough being sick without being your own doctor.

As for your book about hospital apathy... I think it would really depend on how you see the book. If you want it to be fiction, you can probably fictionalize the stories told to you enough to avoid problems. If you want it to be non-fiction, you may need to get some consent forms, if only to say 'I'm going to use your story - no names, no places, no worries'.

But I would definitely talk to a lawyer who knows about these things, first, to see what you need to do to make this book happen.

DLM said...

Julia, thank you for catching us up. I join the chorus hoping you will feel better soon.

Hot tea?

Julie said...

Thanks, all.

@DLM, I'll take a raincheck. Thanks. And if we're in the south, maybe sweet tea? LOL. Up here, I'm sort of an Earl Grey girl, and even down there, I take it unsweetened as I order it and then put in a couple packets of sugar and some lemon.

Meanwhile, somehow my 80K MS now has 122K words. Not sure how that happened.


Unknown said...

One of the things I love about you, Janet, is that you're smart enough to know when someone is asking the wrong question to the right person and asking the wrong person the right question.

Patricia Harvey said...

OP, here. I'm reading your comments with great interest. (Sift, stir, repeat.) My thanks to Janet for posting my question today. Since this is my very first rodeo, I'm taking note of your advice. I don't want to have my asterisk bitten, kicked, etc.

Patricia Harvey said...

OP, here. Reposting as myself this time, instead of my blog (just had to do a quick profile change). I'm delighted that so many of you took the time to put your ideas together in response to my question. My main character is a lovely person. But I will not cave in, even to her sweetest assertions that she would never in a million years sue me. Not after today, thank you very much.

Anonymous said...


We had a "friend" of my father's come up to the nursing home and get him to sign a contract to lease his gold mine after he'd been told I was handling all the business with the mine. Three year lease, no royalties, $25,000 buy out at the end of 3 years with no over rides. Mining contracts always have over rides meaning whatever the mine produces, a percentage goes to the original owner.

I contacted the man. Oh no, just a straight lease, nothing to worry about, Julie. He never mined it in three years, just waited for the lease to run out and swooped in to buy a mine with proven reserves for $25,000.

When it comes to money people will stop at nothing. This man had been my father's friend for years.

Patricia Harvey said...

To Katie Loves Coffee: You might think so, but I have my doubts. Last year I gathered the courage to email an agent who once expressed an interest in my MS. I asked if she might point me in the right direction on the very question I sent to Janet. She responded that in no way could she advise me on the matter. Therefore, I'm thinking that it pays to do one's due diligence.

Patricia Harvey said...

Julie, Money can make monsters of people. Sorry that happened to you and your dad.

Anonymous said...


Just warning you, even if this person is a longtime friend, please, please, please, take Janet's advice. Get a lawyer. Do everything by the book. Don't take anyone's word for anything.

Not everyone is as sweet as I am. *innocent smile*


Patricia Harvey said...

Steve Stubbs - from the OP: You wrote, "Try entering any combination of proper names into and you will likely conclude that someone is using just about every name you can think of."

To complicate matters, many of the names in my book are Chinese. And some of those are from a subculture. That could be lucky for me. Or not.

"Also how do you find an honest lawyer?" In the past, I have called my local Bar Association and requested the names of several members in good standing who specialize in a particular area. Lacking a local Bar Assoc., you would contact your state Bar Assoc. They normally provide a short list of lawyers who will give you a half-hour consult for a small fee. This gives potential clients a sense of who might be a good fit. If it works for real estate, it might work for intellectual property rights.

Patricia Harvey said...

OP, here - Donnaeve said...
"This is one of those situations where the story must be absolutely mesmerizing in order for the OP to want to 1)write about it, 2)seek out professional legal help in order to CTA(cover their asterisk) given Ms. Janet's advice."
Yes, well, if not mesmerizing, then perhaps fascinating. (There is a bit of the mystical woven through the story.) I have made a huge investment in this project in terms of time and effort. I even contacted an anthropologist who did field studies in the area. So it is well worth it to me to go after professional legal help.

"What's curious (at least to me) is this: "The woman says she would like me to use her real name in the book, which takes place in a now-defunct culture.

"Why? If the rest of it is fictionalized, what's this thing with using her real name? Maybe b/c even if the OP used a fictional name, this person could still come back and claim the story as theirs and all the other hoopla which might/could ensue listed by QOTKU and the others."

Let me just say that my book delves into key events in her life, with some changes for the sake of story. The dialogue and many details are fictionalized, but remain true to the culture. Without the cooperation of my subject, the main character, I would not have a book at all. But it's complicated, I think, as to why she wants me to use her real name. As a child, she belonged to a persecuted subculture. "Coming out" in a book would be an acceptable way to "tell" people about it - people she knows, but have no idea. In other words, she's coming to terms with her past. Still, I need to protect myself. It would be so much better for the book if I could use her real name, and her sibling's names. They are so great. But I need to protect myself. And I need to keep saying that until I have the contract in hand.

Patricia Harvey said...

Colin Smith said...
"For historical fiction, perhaps--and that's an interesting angle. What are the rules when you're writing HistFic set in the recent past when the people in your story are still alive?"

Colin, OP, here. I think you deserve the genre award. That's what I have here: HistFic. It's recent enough that the MC and other characters in the story are still alive. From the beginning, my purpose has been to help preserve the memory of an amazing, self-sufficient culture, which for primarily political reasons, is now defunct. I have actually not found any fiction about this particular culture by people who were actually part of it. With the exception of anthropological studies (and I was fortunate enough to acquire one from a professor), there's not a lot out there. But because my MC is still alive, I can "borrow" her voice and explore the conflicts and challenges her world presented as she was growing up. According to my MC, most young people from her culture were not well-educated, if they went to school at all. The families lived a hand-to-mouth existence. Prior to her mother's generation people were completely unschooled. So yes. I think it's HistFic!

Patricia Harvey said...

Sam Hawke said...

"If you write about an identifiable place and you say the milk bar is opposite the post office but it's not, you'll get people writing in telling you so. This is true even if you call it something different, as long as people decide it's supposed to be the town they know."

Sam, you're absolutely right. I've heard authors say that the residents of towns they've written about are proud of being "in" a book. But that drug store, the one on the corner, is not McGowan's. It's Murphey's.

Patricia Harvey said...

Julie.M.Weathers said...

"People like that are the reason I've put off writing the Civil War story for years. I have hundreds of Civil War books. I'll research it to the best of my ability, but someone is going to challenge me on something. I've already had several people tell me a confederate spy wouldn't act that way. Sorry, that particular scene was based on a true event.

"You just have to do the best you can. If a person is very charming, they might even be able to turn that person who wrote into a resource."

Julie, look at it like this: Your Civil War story is a castle. Something tangible that you will build from the ground up. And that takes real talent and tenacity. Nit-pickers are just a bunch of castle-bashers. They have nothing to show for all their nit-picking. So you're right: "You just have to do the best you can."
And turn amiable critics into resources.