Can the Truth Get a Writer in Trouble?
Basing a fictional character on a real person or including family secrets in your memoir could land you in court.
What are the legal issues if I use real people, or characters based on real people, in my writing?
We've all seen the disclaimer: "Names, characters, places and incidents either are the product of the author's imagination or used fictitiously, and any resemblance to actual persons, living or dead, is entirely coincidental."
Slap that on your story and dish away, right? Not so fast. It's a good start—but not enough protection for fiction writers, and, of course, inapplicable for memoir and other nonfiction writers. Writing about real, live people—famous or otherwise—can lead to a lawsuit. Changing names is not sufficient. If someone can prove that he or she is identifiable to a single reader by the setting, physical description or other characteristics, that person may be entitled to sue for defamation or invasion of privacy.
Defamation
You may be sued for defamation if an identifiable character or real person in your work claims that his reputation has been injured by the false way you have depicted him. "Injury to reputation" is defined as that which "tends to bring the subject into public hatred, ridicule or contempt, or to injure him in his business or occupation."
In a case that made the publishing world tremble, author Gwen Davis Mitchell was sued over her novel, Touching, in which the main character conducted nude therapy sessions. (Hey, this was in the '70s.) She had attended similar sessions conducted by Paul Bindrim, who sued her for defamation. Although her psychotherapist character differed in many ways from Dr. Bindrim, the court ruled for the doctor, finding that the character had been based on him, that the public would be able to identify him, and that certain of the character's traits injured his professional reputation.
Other courts have not followed that ruling. In a New York case, the judges found that similarities such as the plaintiff's first name, physical appearance and neighborhood to that of a book's character were "superficial." While the author and publisher were vindicated, they had to defend a lengthy and expensive lawsuit.
Invasion of privacy
One reader asked, "Isn't truth the best defense? Don't I have the right to write about my life and what happened to me?" Yes, truth is a defense to defamation charges; if a statement is true, it is not defamatory. But you also must be aware of invasion of privacy claims. Two types are relevant here—"public disclosure of private facts" and "false light."
Public disclosure of private facts is the publication of private and embarrassing facts that are not related to a matter of public concern. They must be considered highly offensive to the average reader: Sexual issues, criminality and physical and mental ailments are the usual examples. Ask yourself: "Is this story newsworthy?" If so, it is protected by the First Amendment.
Even if something is literally true and not private or embarrassing, if it creates a deliberately misleading impression about a person, she may sue under a false light claim. For instance, a model recently sued after her photo was used in an article about a girl who was drunk and promiscuous.
None of this is to suggest you should trash that thriller or make mincemeat of your memoir, but be aware that most publishing contracts hold writers responsible for suits arising from their works. If your material is questionable, you may want to consult an attorney or your publisher's legal department.
Want more legal advice? Consider:
Legal Issues Affecting Writers
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Amy Cook is an attorney who has focused on intellectual property and publishing law issues for more than 20 years. She is on the board of directors of Lawyers for the Creative Arts and serves as the Managing Editor of the Chicago Bar Association’s magazine, The Record. She is a frequent seminar leader, most often at Chicago’s Newberry Library and also has been a presenter at the University of Chicago’s Graham School of Continuing Education, University of Illinois at Chicago, and Depaul University, among others. Cook is proud to have a long association with Writer’s Digest magazine, having written numerous feature articles on legal issues affecting writers. Connect with Cook here.
