Wednesday, June 12, 2019

Do I have to lay off the snark to avoid lawsuits?

I am wondering about the use of real people's names in my novel. I currently have 3 different references in my WIP, and only one is flattering to the person mentioned:

"That gem came from a local wannabee liberal, Latina version of Tomi Lahren."

"At the mention of a foster home, I’m struck by a squalid, Dickensian scene: crowded single-wide, chain-smoking Mama June embedded in a sagging sofa watching The Bachelor on a 72-inch wide-screen while a dozen filthy, rail-thin kids suck ketchup out of McDonald’s packets."

"He may not look like Matthew McConaughey, and he may need those thick-soled boots to reach five seven in height, but what I realize now is that Holly is oozing with self-confidence."

I find I like making reference to current people/events quite a lot. But Mama June might not love my reference above. And since we know my novel will become a global, best-selling phenomenon, I have to worry about this! (lol).

But seriously, is this kind of thing okay or do I need to keep my snarkiness more generic?

All of these people are public figures, thus any action they bring for libel must meet a higher standard: actual malice. Unless you intend to defame Mama June with this description, you're on the right side of the line.

That said, anyone can bring action for anything (see Devin Nunes).

There's a clause in most publishing contracts that says the publisher has the right to vet your manuscript for anything that is likely to subject them to legal action (like a lawsuit claiming defamation) and that you, the author, agree to make changes as they require to avoid that.

Bottom line: don't worry about this at the query stage. Your query isn't public nor is your unsold manuscript.  At such time that your book is slated to become public, if there's a potential problem, your publisher will let you know.


CynthiaMc said...

The problem with using current examples - in seconds they are no longer current or public opinion has flipped.

Yesterday's darling (Harvey Weinstein) is today's pariah (also Harvey Weinstein).

Matthew M is not an A-lister any longer. He is doing car commercials.

I think your examples works for newspapers, blogs and retweets on Twitter. As novelists, it pays to think of the long game. Will anyone know who this is in ten years or twenty?

Colin Smith said...

I had an insightful comment to make... but CynthiaMc beat me to it. Oh well. What she said. :)

julie.weathers said...

I wouldn't use current event people for the reasons mentioned. In a year people are going to say, who? Plus, it's not the most imaginative writing.

A millennial sued an ad agency not long ago for using his image in an ad. It was of a hipster with a beard, plaid shirt, glasses, etc. The ad was about standing out from looking like everyone else. Guess what, though he had a picture of himself that looked like the guy with the same get up, it wasn't him. It was a model/actor.

I guess the ad agency was spot on.

So describing your character as a guy with a plaid shirt might be nothing today, but describing her as looking like Mama June might mean nothing tomorrow.

Jennifer R. Donohue said...

A problem with references (I find) is that things I think are common knowledge and people will absolutely understand....aren't. Of course I can't even think of an example right this second, but I guess my main point is that the story/passage has to stand whether people know who Mama June is or not.

Matthew McConaughey's performance in True Detective will make him an A-Lister in my mind for the rest of his days. (Season 1, that is. Seasons 2 and 3 each have a completely different cast.)

Katja said...

First: I had to think about the headline to understand it. It was the word 'snark' - hadn't been in my vocabulary yet (I won't explain why any more).

With Fiance out of the house, I used my translation tool: the translation seemed nonsense - or Janet's headline...
So I went on and read the examples to get the meaning from some more context:

-snide and sharply critical comments.
"a worthwhile blog cannot live on snark alone"

A WORTHWHILE BLOG??? Like this one ;).

Okay, (I believe!) I got the meaning. OP, my book is FILLED with stuff that Mama June's counterpart(S) won't love. And like this headline says - I am scared of lawsuits coming my way! I have, therefore, changed ALL names. Mama June is Mama May now, and so on.

Like Jennifer said, I think it's important that people don't know who Mama June is. And that she doesn't feel she can be identified. You could then probably be as snarky as you like. For me, there is still a bit of a worry because I am using my proper name as the author name, so all Mama Junes might feel they can be identified because people know who I am and so can conclude who the 'Junes' are.

I've taken this risk; book's coming out next month; fingers crossed I won't get sued.

All the best to you, OP!

Andrew Arno said...

I had to look up 2/3 of your references. Just one more data point from the “I agree with CynthiaMc” crowd.

Dena Pawling said...

1. Everyone can sue anyone for anything, and lawsuits are expensive to defend even if you did nothing wrong and eventually win. Look at cocky-gate.

2. You risk your readers having no clue who that celebrity is, and if your snark requires knowing something about the person, your joke falls flat.

3. Possibly the scariest - three days before your big release day, Mama June throws herself in front of Michelle Obama or Tom Hanks or another national sweetheart and takes the bullet. On your release day, every major news paper and television station in running 24 hour coverage of her condition as the world collectively holds its breath. She finally survives but she's paralyzed. Obama and/or Hanks is now holding a massive GoFundMe type campaign to pay for her current and future medical bills and new life expenses. All your pre-orders are cancelled because how dare you!

MA Hudson said...

I don't know who Mama June is. I'm sure she'd come up on google pretty quick, but I don't bother with that while reading.
Usually, when I don't know the person referenced in a novel, I tend to wonder whether there's a serious flaw in my general knowledge, or if it's a character from earlier on that I've forgotten. Either way, it kinda takes my mind away from the story.

Bonnie Shaljean said...

There's also a geographical aspect to consider when using popular-culture references. In addition to the excellent points made above, will overseas readers get them - especially non-English speakers? I didn't know who Mama June is either, and even Honey Boo Boo (when I discovered the connection) only registers on my radar as a vaguely familiar name I've come across somewhere: I wouldn't recognise her if she stood up in my soup and squirted me in the eye. Like MA Hudson, I'm probably not going to bother googling, but whether we interrupt the story to do so or just miss the author's meaning, the story is what's going to suffer.

Katja, if the word "snark" is a new one to you, may I direct you to a brilliant blog, Miss Snark (now archived and inactive), which elevates that quality to a whole art form:

Jennifer Mugrage said...

I once saw an author describe a character as thin, cute in a girl-next-door kind of way, with a gap between her front teeth, "sort of like the actress Doot Doot." (I can't remember the name of the actress because I didn't recognize it at the time.)

His description was good enough already. All that the mention of the actress told me was that the author liked that actress, and possibly felt the need to justify the gap between the teeth.

Katya: what is the German work for snark? I'm sure there must be one. Schadenfreude?

Bonnie Shaljean said...

The fact that the writer had to tell us Doot Doot is an actress speaks for itself!

Timothy Lowe said...

I actually kind of disagree with some of the wisdom in the comments. I recently read "Get Shorty", and one of my favorite parts was when Chili Palmer was talking to Harry Zimm and discussing the actors they'd like for the film they were trying to make. They dropped references to actors they could never get or who wouldn't work -- among them Gene Hackman, who wound up playing Zimm in the movie (they changed that part of the dialogue in the movie of course).

Now, the actor they wound up pursuing for the role -- Martin Weir -- was Elmore Leonard's fabrication; this is key, since he was a character and not a name drop. But I think occasional name drops (as long as there aren't way too many) can be fine. If I don't know the actor, I'm going to just keep reading. They referenced an old Western in that book that I haven't seen, and it didn't bother me one bit. Actually one of the more enjoyable parts of the book, since one of the characters got it wrong and Chili had to correct him (Chili Palmer could be one of the coolest cool guys in literature).

Anyway, read Get Shorty if you haven't, especially if you write crime fiction. It's a master class.

OP, I got your references, and enjoyed them. I wouldn't fret about it at any rate. As Janet says, you can change what doesn't work later -- as long as it's not "not working" for the wrong reasons (pacing, boring, repetitive, obvious, takes us out of the story, etc.)

Casual-T said...

I had no idea who/what a Mama June is, and now wish I’d never looked it up... But, as a musician (and occasional film-composer) I know the use of contemporary sounds, or styles of music, is a surefire way to date a movie—and (almost) guarantee it won't age well.

In the 80s, synthesizers were the latest rage... Watch some of those movies now, and try not to laugh (or cringe) as cheap cheese starts clogging up your pristine home-theater speakers. Same applies to writing (minus the home-theater).

Tastes/opinions change (on a dime), and before you know it your villain turns hero, or vice versa; or people might simply say: Who the hell is Mama June?

Casual-T said...

@Jennifer... “Schadenfreude” is when you’re amused by someone else’s misfortune. A better German translation of “snark/snarky” might be the words “gemein” or “abf√§llig” which are more akin to “rude” or “mean.”

Katja said...

Jennifer, I'd say 'Stichelei' if you're looking for a German noun. It's a girl, by the way - die Stichelei. Hm, makes me think why it's female, ha ha.

Plural 'die Sticheleien'.

Or 'Spott', that's maybe the best word. Plus, it's a boy: der Spott!

What Casual-T said is okay, too, but you'd need to add 'words'/'comments', because 'gemein' is 'rude' and more in general (Gemeinheit would be the noun - oops, another girl!). Like when the groom stands up the bride without warning, that's kind of very gemein, but he might not have said a single word, so it's not snarky. Or did I get snarky wrong???

Casual-T, are you also German?

Casual-T said...

@Katja... Born and raised in the vicious concrete jungles of Vienna/Austria. ;)

Bonnie Shaljean said...

I think of "snarky" as being easily displeased and critical, but mainly in relation to fairly petty things. It's a word that won't bear the weight of too much negativity - e.g. irritable rather than cruel. Someone deserting their intended spouse at the altar is a whole different level of nasty!

Pericula Ludus said...

Does it matter if readers know who exactly a person is? I'm reading Alan Hollinghurst at the moment and have to admit two thirds of his references to artists, authors, and politicians are so far above me that I'd get an almighty crick in my neck if I tried to look up (at) all of them. I don't mind. Out of interest, I google the occasional key figure, but most of the references are fairly self explanatory to some degree. To me, references to specific people add texture to the weave of a novel's world and a sense of familiarity even if you don't recognise all the names. The art, in my opinion, lies in creating layers so the reference still makes sense to those not in the know. Using OP's examples, I have no idea who these three people are, but I could still see the vision of the foster home.

Casey Karp said...

I'm going to lean more in Timothy Lowe's direction. I enjoy finding the occasional pop culture reference. If I don't recognize it, I might look it up or I might let it slide past, depending on my mood and how critical it seems to enjoying the book.

It's a decent way to add a little color, as long as you don't overdo it.

And, in addition to what Janet said, there's also that legal disclaimer that shows up near the copyright page. The one that points out that real people and places are used fictitiously. That has to provide a certain amount of cover, or publishers wouldn't bother with it, right?

Lennon Faris said...

So I guess OP's question was answered, as to whether or not you can get sued for this/ anything.

As to whether to do it anyway... I admit I get my coffee ready and rub my hands together when Janet starts dropping the f-bomb about some injustice. But if I went to a kids' movie and they threw around the same word, it would not be fun for anyone.

I understood 2/3 references from this post. They're kind of like inside jokes - you feel clever if you get them, and silly/ annoyed if you don't.

I guess my thought is, know your target audience.

Kate Larkindale said...

I tend to try and avoid using references to real people in my work unless they can be used as a kind of shorthand to explain something else. For example, in The Sidewalks Regrets I reference Foo Fighters as being the headliners the band in the book play support for. By using the real band name, I don't have to go into a whole lot of detail about what a big deal this booking is for the band because readers will know Foo Fighters are a band with a big fanbase and the ability to sell out huge venues.

Otherwise I try to steer clear because in two or ten years, the references will date the book.

KDJames said...

OP, the more money you make, the more likely someone will find some reason to sue you. Write as if you're going to make seven figures. That is not legal advice.

That aside, what bothers me is this is lazy writing, when it's apparent you're not a lazy writer. You've already got all the description you need without the name checks dating your story. They don't add to it, they distract the reader and weaken the writing.

Take them out and compare:

"At the mention of a foster home, I’m struck by a squalid, Dickensian scene: crowded single-wide, chain-smoking [woman] embedded in a sagging sofa watching [mind-numbing reruns] on a 72-inch wide-screen* while a dozen filthy, rail-thin kids suck ketchup out of [fast food] packets."
*72-inch is already wide; do you mean flat-screen?

Snarking about the foster system, if that's your intent, comes across as less cruel/petty than aiming at a real person. Words have power. Be wary of "punching down," now that you're a million-dollar-earning writer.

As for the McConaughey reference, I had to read it three times before I realized you meant he was handsome (not in my top 10). Why not just say so?

"He may not [be movie star handsome] . . ."

I agree with Lowe and Karp (sounds like an act you should take on the road) about enjoying occasional references to real people/events. To an extent. But these examples aren't references, they're description. It feels like you're using this as a crutch to give the reader a "better" visual than your own description. Didn't Janet just write a post about over-explaining and self-confidence? Trust the reader to form a visual based on your words alone.

julie.weathers said...

I reference real people in Rain Crow because, hey, historical. There are also some real names dropped that aren't historical because hey, I like to torture people. Janet, Colin, John Davis Frain. I mention theaters and actors and popular plays because people enjoyed the theater in the 1860's and the Booth brothers were considered the finest Shakespearean actors in America before that unfortunate incident.

If a real person serves a purpose, then use them. If it's a short cut to describing someone, there might be a better way unless it's a truly well-known feature.

Sometimes an Easter egg in a film or book is fun.

Timothy Lowe said...

If I can save 200 words by saying a guy looks like Eddie Haskell, I'll do it. I don't think I could say it better than that.

Jennifer Mugrage said...

Thanks, Katja and Casual-T. I knew you wouldn't let me down. Spot sounds close, but then ... I don't speak German.

I think of snark as the attitude, or act, of verbally denigrating someone in a clever way because you don't like them and to show off how smart you are. This includes pointing out when events seem to prove them wrong, which would overlap with Schadenfreude.

I agree with Timothy Lowe, too. Of course if we are writing a book about Hollywood, we will want to weave real celebs in with our fictional ones. And some books are funny precisely because of the pop culture references (I'm looking at you, Janet Evanovich!). It all depends on the kind of book you're writing.

MelSavransky said...

More than lawsuits, what keeps me up nights is famous names signify something and that signifier can change. Saying someone "had the physique of Elvis" depends wildly on the era in question. Blockbuster Video used to mean 'ubiquitous chain store' but got guffaws in Captain Marvel because now it symbolizes the past.

Aside from death, taxes, and Shakespeare, I don't think you can rely on any reference to continue to mean what you want it to. *stares dramatically out the window*

Richelle Elberg said...

What a great discussion! Lots of valuable points made on both sides.

Terri Lynn Coop said...

I got challenged on a critique for the passage:

"She glided into the room on red stilettos. Her painted-on jeans and tank top hugged ample curves all the way up to a mass of blonde curls that Dolly Parton would kill for. Forty was in the rearview mirror, but she owned it."

I was totally defended. No one doesn't know who Dolly Parton is and they'll know 50 years from now. Same with the reference to Eddie Haskell above. Maybe not in a foreign country, but in the USA, I had an immediate mental picture.

A chapter later:

"He tapped the button and looked up as the music poured out of the speakers.

"George Strait?""

You know what they say. You can take the girl out of Texas ..."

I like evocative comp phrases but they've got to be widespread and classic. In a short story I wrote quite some time ago I made a Brad Pitt comparison. If I release it as part of a collection, I'm going to have to update that. It slaps my story right into the 1990s, which, amazingly enough, is when it was written.

But 20, 30, 40 years from now couples in southern states will still be resolving awkward romances while waltzing to George Strait.


julie.weathers said...


We went to a rodeo school once with my oldest son. There was a couple there I shall call Mom and Bomb. Mom had the bleached blonde Dolly Parton hair and Dolly Parton boobs or a close proximity, but was fat and fifty in skin tight black Wrangler, low cut tank top, a new black Stetson, black boots, and dripping diamonds off every finger.

Bomb was wearing a new cowboy outfit, new black chaps with some kind of fancy red design, black pants, black shirt, black hat and a chain drive wallet. You know the kind, a chain that loops from a belt loop and swings back up to the wallet in the hop pocket. Now, we could have called him Black Bart, but Bomb he shall ever be.

Mom and Bomb were newly weds and Bomb had convinced Mom he used to be a bullrider back in the day and a pretty darned good one, too. Mom had money and she didn't mind going to a rodeo school for their honey moon so he could be the champion he always dreamed of being.

Bomb gets his head planted.

"Don't worry, honey. It'll come back to you." She waves at the chute men. "Give him another bull."

Bomb limps back. So goes the first day. The Sankey Brothers, who are putting this on have figured out what's going on try to save him, but Mom's determined to make him a champion and keeps finding his hiding places and dragging him back for more bulls.

Second day, Dolly, I mean Mom comes back with Bomb. They are wearing matching outfits. Mom even has on matching chaps and spurs.

Yee haw!

She waves her bejeweled and Dolly Parton nailed hands in the air. "We're here and ready to ride."

Dear Lord. Surely she's not going to ride.

Nope, she's just supporting him. By now she's figured out about all his hiding places, but people are feeling sorry for him and covering for him. It's taking her longer to sniff him out and plant his butt back on more bulls.

Somehow out of shape fat, forty, and balding Bomb avoids getting cowkilled.

Years later, I can talk to the Sankeys and say, "Remember Mom and Bomb; that Dolly Parton gal..." and Lyle will remember exactly who I'm talking about and they've had thousands of students.

Now, granted we both listen to country music.

Ask me to describe Eddie Haskell and I have not a clue what you're talking about.

LynnRodz said...

I guess some people just aren't Leave It To Beaver fans or old enough to get that reference to Eddie Haskell.

Casual-T, I have to agree that most pop music will date a story, but I think jazz and classical music are exceptions. I reference a few jazz musicians/songs in my WIP without any qualms it'll become outdated.


Ellis Tandy said...

Am I alone in actually liking the time-capsule aspect of some books? Many of my favourites (from the 80s and 90s in particular) are largely my favourites because they evoke such a strong sense of their place in history - the technology/slang/cultural touchstones might be dated, but they also create a rich and immersive atmosphere.

And hello, everyone! This is my first post on Janet's amazing blog, though I'm a long-time lurker. Nice to meet you all :)

Pericula Ludus said...

Completely agree, Ellis Tandy. I love the time capsule!

I'm wondering how it could even be possible to avoid it when writing "contemporary" fiction. Eliminating all pop culture references is fine, but surely technology, politics etc. will continue to put a time stamp on the manuscript. Once all those are removed, I fear what's left would be utterly sanitised and lacking character.

I'll retreat to the 1620s now. Writing historical fiction has its advantages!

Laura Stegman said...

I've enjoyed this thread. Must say that I knew all the references, from Mama June to Eddie Haskell, but I think it's dicey putting them in a book because of all the reasons folks already said. This from a woman with a Liberace reference in her middle grade book. ;)

Bonnie Shaljean said...

The time-capsule point is a good one, and I certainly enjoy those - but only when the names cited are familiar enough to illustrate their era, rather than merely being a relic from it. I think it hinges on what the person is known for. If it's some accomplishment that acquires a life of its own and can stand independently of its creator (like Dolly Parton's wonderful songs), they're more likely to live on in the public mind. Some artists are iconic, and really do represent their times. But if they're to last as cultural references, it has to be because they did something, rather than just were something.

Terri Lynn Coop said...

Okay, that Dolly Parton gal is hilarious . . .

And, yeah, tech references can be hilarious.

To this day, one of the funniest scenes I've ever seen in a book.

The detective runs into the library.

He sees a computer has been destroyed. The monitor is broken, the case is smashed.

The detective says, "Now we'll never know what was in that email!"


Laina said...

OP, I would also suggest that you think about if everyone is going to feel the same way about these references as you. The implied fatphobia and general classism of that Mama June comment doesn't land with me. Enough of those, and I would be putting your book down.

I also am not straight. I am not sexually attracted to Matthew McConaughey. A bland white dude is not attractive to me basically ever. Also, as someone who is five two, the idea of having to be tall to be confident doesn't do much for me.

Now a lot of people would call me oversensitive, but there are a lot of books out there. What's the draw for me to read books that alienate or insult me?

AJ Blythe said...

I'm not sure if anyone else said this, but I have a huge problem with relying on current events/people to make your comparisons and humour. It only works if the reader knows of them. I have zero idea who Mama June or Tomi Lahren are.