© Hjalmeida | Dreamstime.com – Teen Shame Photo
Scarlett Johansson won a defamation suit against a French writer for creating a promiscuous character who happened to look like the movie star. A Georgia jury awarded $100,000 to a woman who claimed a character in The Red Hat Club falsely portrayed her as an “alcoholic s**t.”
Writers face three big risks when using real people in their writing: defamation, invasion of privacy, and misappropriation of the right of publicity. Yet every fiction writer bases characters on real people. Memoirists and nonfiction writers identify people by name. How can writers use real people in their work without risking a lawsuit?
First, a simple rule. If what you write about a person is positive or even neutral, then you don’t have defamation or privacy issues.
For instance, you may thank someone by name in your acknowledgements without their permission. If you are writing a non-fiction book, you may mention real people and real events. However, if what you write about identifiable, living people could be seriously damaging to their reputation, then you need to consider the risks of defamation and privacy and how to minimize those risks. I am not talking about portraying your mother-in-law as a bossy queen bee; I am talking about portraying your mother-in-law as a drug dealer.
Common sense and a cool head are key.
First, let’s start with a quick summary of United States law. (The laws of other countries are more favorable to the targets. In today’s Internet environment, you could get sued in France for a blog written in California.)
Defamation
To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (target) must prove all of the following:
False Statement of Fact.
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. Opinions are also protected because they are not “facts.” Couching something as an opinion is not bullet-proof. Courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The more specific a statement, the more likely it will be seen as a statement of fact. Parody is not defamatory if the absurdity is so clear no reasonable person would consider the statements to be true.
Of an Identifiable Person:
A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target. Typically, the target must be a living person, but companies and organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
That is Published:
One person (other than the target) must read or hear the statement.
Causes reputational harm:
The statement must be more than offensive, insulting, or inflammatory. It must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”
Made With Actual Malice or Negligence:
If the target is a public official or a public figure, then the plaintiff must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some fault or negligence by the defendant.
Invasion of Privacy Claims
Even if you publish the truth, you may still be sued for invasion of privacy if you disclose private information that is embarrassing or unpleasant about an identifiable, living person and that is offensive to ordinary sensibilities and not of overriding public interest.
The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries a camera in their pocket. Similarly, public figures can have little expectation of privacy. A movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointing her way.
The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of suits.
Even if the information is highly offensive, courts often decide there is no legal liability if the information is of public interest. Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest.
Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims. As you can imagine, judges and juries are not sympathetic when the perpetrator makes a privacy claim.
In any situation, however, writers should try to get releases from people who will be recognizable in their work.
If you cannot get a release, then consider changing the person’s name and identifying characteristics. Yes, this is permissible, even in memoirs.
Another flavor of invasion of privacy is called false light. Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture, a true fact. If the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.
Misappropriation of the Right of Publicity
Using someone’s likeness, name, or identifying information for advertising, promotional, or commercial purposes may get you sued. Whether the person is a private individual or public figure, you would be liable for damages, including punitive damages. If the person is dead, you could still get sued in some states and foreign countries.
Right of Publicity claims are limited to:
- Advertising: Using a person’s image in an advertisement. Same applies for using look-alikes or sound-alikes. Bette Midler won $400,000 from Ford after they used a singer to mimic her voice in an automobile commercial.
- Merchandise: Selling t-shirts, mugs, greeting cards and other products with unauthorized images.
- Impersonations: Impersonating a celebrity for commercial purposes. Yes, all those Elvis impersonators either have permission from Elvis’s estate or are taking legal risks.
- Implied endorsements or relationship: Wrongfully implying that someone has endorsed your work or was involved in its production violates a number of laws.
Other Limitations on Using Real People
Are you are subject to other restrictions? As an attorney, I cannot use any confidential information about a client, even if I change the name and mask the identity. Same for therapists, doctors, accountants, and other professionals. If you are a trustee, partner, or have a fiduciary relationship with a third party or a minor, you have a duty not to bring harm onto the other party by disclosing private information.
Have you signed a confidentiality agreement? Many public figures require their staff to sign tough confidentiality agreements.
If you were a party to a dispute settled out of court (including a divorce settlement), your settlement agreement probably contains nondisclosure and non-disparagement clauses. You could unwind the settlement by blabbing.
At your job, you may learn valuable trade secrets such as formulas, marketing plans, and manufacturing details. If you disclose that trade secrets, even if true, you could find yourself out of work and facing a lawsuit.
How to Limit Your Risks
Considering the hundreds of thousands of books published each year, there are relatively few lawsuits against authors. Claims are difficult to prove. Most targets don’t sue because they do not want to call attention to a matter best forgotten. To reduce your risk of being one of the unlikely few, authors should consider the following:
- Don’t say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. Instead, stick to verifiable facts and your personal, emotional responses. Remember the old adage, show, don’t tell. Let your readers come to their own conclusions.
- Be cautious about saying something like “don’t do business with xyz company.” Tell the story of your experience with the company. Your readers will get the message.
- If you base a fictional character on a living person, mask identifying features. Change physical details and life histories so the character is not recognizable. The more villainous the character, the more changes you should make. The same is true if you are using a company as an evil character, such as a polluter.
- Use parody and satire. If what you describe could never be true, then it is not a statement of fact. That’s how The Onion and other satire sites get away with headlines such as Brad Pitt Decides To Grow Out Forehead Hair.
- Keep in mind that memories are subjective and tend to evolve over time. Verify and expand your memory by conducting research and interviewing others. Retain records to support your statements. When speculating, be clear you are taking a guess. State your opinions as opinions, not as facts.
- Get written consent and a release wherever possible.
- Think about the small players. In disclosing wrongdoing, you may harm some innocent bystanders.
- Consider how important the private information is to your story. Judges and juries can be moralistic and will punish someone who discloses confidential information gratuitously or maliciously.
- Rely on publicly-disclosed information, such as court documents and news reports wherever possible. Court filings are a rich source of juicy information.
- If you are writing a “getting even” book (to get back at a parent, spouse, boss, or someone else who made your life miserable), write the manuscript with passion, then put it aside for months, or even years. Then will you be better able to mask your character and make it universal. Better yet, wait until your target has passed away.
- Respect privacy. In today’s crowded world, privacy is more valuable than ever. How important to your story is that private fact?
- Don’t assume no one will go after you because you have no money. If you peeve someone enough, you may awake one morning to a process server banging on your door.
- Don’t use anyone’s name or image for advertising purposes without express permission unless that person has been dead for 100 years.
- Add disclaimers.
- If accused of a defamatory statement, consider publishing a retraction.
- Engage an attorney to review your manuscript.
- Always reach for the truth when writing—it’s the best defense.
This post originally appeared on the IndieBRAG blog.
SORRY, EVERYONE, BUT COMMENTS ARE CLOSED FOR THIS POST. I SIMPLY CANNOT KEEP UP WITH THEM ANYMORE. WITH OVER 150 COMMENTS, THE ANSWER TO YOUR QUESTIONS SHOULD BE IN THERE SOMEWHERE!
SHARE THIS
Writer’s worst nightmare: book she’s written has a character named XX. A live human, name of xX, decides that the writer has libeled him – and files suit.
No truth in the matter – the writer never heard of real person xX. Or even: the writer thought she had completely disguised the tiny bit of person xX that was the basis, along with several other people, for the character in her book. xX files suit.
In other words, suits which don’t have any real merit, and will be dismissed or thrown out of court – but which have a huge nuisance value.
Writer HAS to deal with the matter – and it costs her a bunch of money just to fight the suit.
Is there any way to have such a suit thrown out of court (or whatever) BEFORE writer has to engage her own attorney and spend money to fight back?
Thanks. General curiosity about the law here – no case yet, but I do use something similar as an incident in my WIP.
Alicia
Alicia,
Sadly, there is always a risk someone might sue you, even if the lawsuit is baseless. If a lawsuit it truly malicious and unwarranted, you might be able to recover your expenses, but you would have to hire an attorney to fight that fight.
If you carry business liability insurance, that is likely to provide coverage for such a claim. Your homeowner’s insurance does not; you would need a business policy.
This is a great cautionary blog, with the exception of one item. Engage an attorney to review your manuscript? Uhm … I bill out at $275 per hour and I am CHEAP. Perhaps ‘consult with an attorney about potentially problematic passages’ but PLEASE don’t send authors to an attorney’s office expecting them to review their entire manuscript like an editor would unless they have a gigundo billion-dollar best-seller tell-all on their hands. Send them with a book with a few post-it notes and a carefully drawn-up list about defamation. An Attorney By Day….
An excellent summary!
I wrote a blog piece about insults and mockery, and in particular, some of the outrageous things said that get people sued. Here’s my favorite:
…the California case of Ferlauto v. Hamsher, 74 Cal. App. 4th 1394 (1999), where the plaintiff (a lawyer no less) was called “a whore’s son,” “full of shit,’” “Kmart Johnnie Cochran,” “loser wannabe lawyer,” “creepazoid attorney,” and “meanest, greediest, low-blowing motherfucker.”
I’d leave the link, but without invite, that would be rude.
Seems to me I read somewhere- ‘People in the public eye have no expectation of privacy’. Acting on that byte of wisdom I use well known television reporters to give authenticity to my works of historically correct fiction. If you write Dan Rather reading a headline. If you keep Dan Rather’s character out of the plot. Who’s to complain? (That’s my four cents) Oh, and a big thanks for such a good posting. I’m making it a pdf and saving it forever.
Alicia,
Many communities have Lawyers for the Arts organizations through which lawyers offer their services at no cost or at highly discounted rates. Also, many lawyers will work within a writer’s budget if asked. We do like to give back to our communities.
Pete, please tell us the link. It’s a great piece.
Consider purchasing media liability insurance for authors. Policies are specific to defamation, invasion of privacy, and the other issue noted in this article. Policies run around $2500 for a year with coverage in the 7 figures. Cheaper than having an attorney read a full manuscript. Check out Chubbs media and find a local broker to help.
Here it is – http://petemorin.wordpress.com/2011/12/14/you-dirty-rotten/
It’s even more enlightening (and fun) to read the actual findings of the case:
http://law.justia.com/cases/california/caapp4th/74/1394.html
Can I ask if you put in a book that the character used to watch/love a certain show for example or book and mention it, without the author or creator’s permission are you just asking for a lawsuit?
Bernadette, You can mention titles to books and shows without risking a lawsuit. Titles are not copyrightable. I would not use the titles are part of the title to your own book (since that would trigger trademark issues), but a casual mention of show or book is not a problem.
Wonderfully informative. Really Claritan-cleared my fuzziness abt lots of angles. For example, that truth has a leg up. Helen, just know that although I may never have to hire you, you are at the top of my list should I need legal help as a writer.
what about naming people in a memoir? Even if they did soemthing bad?
Hi Helen,
Thanks for this. I posted this on FB’s Binders for Women Memoirists.
I just finished reading a memoir “With or Without You” by Domenica Ruta, published by Speigel & Grau and was surprised to find so many names mentioned under least than desirable circumstances. In one description of a boyfriend, giving specifics that if not made up would identify him, she calls him stupid and tells how he rifled his friends wallets for cash. I find that hard to understand that if this is true, how can she get away with publishing it without getting sued? Or do the big publishers have lawyers who can vet the specifics?
Thanks for a reply.
Keep in mind that nothing is completely safe until a judge decides it is. But generally, you may name names in your memoir or other book. Defamation is an UNTRUE statement of FACTS which tends to harm an identifiable and living person’s REPUTATION, not ego or feelings.
When it comes to factual information, stick to the truth. The more proof you have the better.
The something “bad” needs to me more than embarrassing. Generally, it needs to be criminal, deviant, or professionally incompetent. Portraying someone as a jerk of a boyfriend, or an insulting mother-in-law, or an obnoxious boss is not defamation.
If you will be disclosing private information, then research whether that information has been made public in court documents, news reports, even family gossip.
The issues get complicated, and there is no clear line between safe and defamatory. Publishers do put their manuscripts through legal review, particularly if there is anything in the work that makes them nervous. They also carry media risk insurance.
If your manuscript has some risky material, it’s worth the investment to have those portions reviewed by an experienced publishing attorney.
I am writing a true crime novel. I was emailed a sealed court document by my boyfriend- the now convicted criminal. I never read it till after the fact, but it had (eventually sealed) legal court documents that accused him of illegal acts & accusations by his ex wife. Can I write about what I read and I have a copy of the documents?
Cathie, If information is true and otherwise publicly known, then writers may use it. If the information is available only in sealed court documents and is not publicly known, then consider whether the you are disclosing “embarrassing or unpleasant facts about an identifiable, private person that are offensive to ordinary sensibilities and not of overriding public interest.” Since you are writing a novel, you could use the information but mask the character so he is not identifiable.
I have a book that is completely fiction. I am sure I could be sued because I name real people, but it is fiction and freedom of the speech should trump anyone’s feelings being hurt.
I am going with your parody defense sense what I write is so outlandish no one would believe it; No one can take free speech away from you, not even a judge. I have less than $1,000 to my name so lawyers tend to not waste their time when they can’t get paid. I could use the publicity if they sue me also.
If I create a cartoon that presents fictional events that never happened (such as a fight with werewolves) but base the characters on real people (appearance, mannerisms. etc) with a slight twist of their names.. i.e. Dr. Pollard becomes Dr. Pillard…. can I be sued? Let’s say, for example, I portray Dr. Pillard as a drunk womanizer and a complete jerk (all of which have nothing to do with Dr. Pollard).. do I have liability, even if I run a disclaimer at the beginning of the cartoon?
Sounds like an imaginative work. There is no yes or no answer here. If your characters are recognizable as real people and you are implying false statements of fact about those people, then they may have a claim.
What you describe sounds like parody, which helps protect you. Often the events or facts in a parody simply cannot be real, so they are not seen as statements of fact. Take at look at The Onion for some examples.
It would be safer not to use character names that are so similar to the real person’s name. My guess is there is no reason to use such a similar name for narrative purposes, and that you are using it to poke at the real person. Is that really necessary for your story?
I find this position to be irresponsible.
I am writing a true fiction story about my life. I grew up negected and mentally abused. I have changed the names of everybody in the story. Am i safe? Because im being told i have to still get them to sign release forms. Please explain.
Greg, Writing about real people and real events, especially when the stories involve criminal and wrongful acts, involves some risk as I described in the blog post. But it’s important for writers to explore these issues. So let’s look at some steps authors can take to reduce risk.
Transforming the story into fiction is one of them. You should go beyond changing names. Your characters should not be recognizable as real people. Mask distinguishing physical and behavioral characteristics.
If you can get a release, then you are on even safer ground. But it is not always possible or even wise to get a release. You don’t want to invite certain people back into your life. Sometimes you have to write the truth and take your chances.
Don’t be surprised if your agent or publisher pushes you to get releases. If you don’t want to get the releases, then offer to do more work in masking the distinguishing characteristics. In the end, you may improve your story.
A true story containing actual emails sent to 1 recipient and CC to 3 others. The 1 recipient would release the emails but do the remaining 3 need to sign a release if their email address was blacked out? Also, emails contain first names, do those need to be changed?
The key question is are the other three recipients identifiable to readers. Blacking out their names helps, but if someone could still identify the recipients, and what you are writing involves allegations of criminal, perverse, incompetent or potentially damaging behavior or information, then change the names and do whatever else you need to do to mask their identities.
My former sergeant wrote a book called “carnivore”. He put a picture with me in it on the cover and my picture inside. I believe my name is listed 100+ times in this book. I actually fear for my life because of this book. He wrote a book describing our journey through Iraq and how he was the deadliest soldier or something like that. I don’t want to be put in this light, I just wanted my war past to be in the past…what can I do? He had no permission from me.
Jay, You should write a very strong letter to his publisher addressed to its General Counsel. In particular point out any inaccuracies and exaggerations, especially if they involve you. If you can afford it, get a lawyer to help you.
I think I found the book on Amazon, and it has some of the most vehement one-star reviews I have ever read. Good luck to you.
Hi, I am about to finish a book on cancer therapies and have included short reports on 3 living celebrities with a picture of each (among them Lance Armstrong) who have survived cancer and are healthy again in order to encourage the readers to keep up their faith. Everything I write about the celebrities has been published by the press/media before. The book will be sold commercially. Is this a commercial use of another person’s name and picture in the sense of your above stated advice: “Don’t use anyone’s name or image for commercial purposes without express permission unless that person has been dead for 100 years.”?
Or in other words: do the thousands of newspapers ask public figures for their express permission before writing about them or printing images that show them?
Ron, Great question.
In both publicity claims and privacy claims, courts consider whether the published information is “of public interest.” This public interest exception is very broad and undefined. It’s really up to the judge or jury. However, the fact that you are using information that has been widely discussed in the media is a strong indication that the information fits within the public interest exception.
You should not go as far as to make it appear as if any of the celebrities are promoting or endorsing your book, but reporting on and discussing information which is already publicly available and of public interest should not be a problem.
I am currently writing a book that is dedicated in memory of someone I served with. I have spoken with his family, and they have read my draft of the manuscript and have agreed I can use his name (last name only) as a character in the book. That is ok, because it is express permission correct?
Joseph, you have taken the appropriate and sensitive approach by talking to the family and getting their consent. Good for you.
As a lawyer, I encourage you to get this consent in writing. An email will do. Sometimes people’s moods and memories change over time.
may28 5am I just found out my x New book is out ..its about our life together my addiction and what came from it..I wasn’t notified..I just ordered the book..what are my steps now..mad to be a monster it’s 4yrs since are separated and it’s taken me the last four to control addiction of 25yrs..this book is one-sided…I give up how my addiction started after 6yrs been clean..I’m very happy for her success and life is wanted.not a day goes by I wish I could have overcome the demons with in me and Truly heartbreaking hell we and our family endured daily..God Bless one day at a time ..
Larry,
First, read her book. Perhaps she’s given an honest and fair account of that period and the struggles, or at least reasonably so from her point of view. If you feel statements in the book are defamatory or otherwise actionable, and you think the time, expense and stress of litigation are worth it, you’ll need to consult with an attorney to determine if you have a claim.
This must all be very painful. Best of luck to you.
I am planning on writing a book about other people’s past memories, letters and possibly pictures. They will be the ones giving me the information, so will I need a contract signed so they don’t sue me later if the book does well?
Mary, Yes, written consent is always the safest route, legally speaking.
Hi Helen. I did a lot of research on this topic before I published my memoir. I covered all the ‘safety’ rules to my best ability, yet was still nervous about publishing. So I took out media insurance. It costs me $1500 (Canadian) a year for protection, which includes being represented in court if it arises, even by bogus claims by people I don’t even know but eat up your nerves and time, without costing more for a lawyer. I also understand that the statute is two years from publishing date that a person is permitted to take action on an author. After two years they can’t file. I’m not sure if it’s the same in the U.S.
Debby, The statute of limitations varies state by state in the U.S. For defamation claims, they range from one year to four years after the first publication of the defamatory statement.
Hi there – What if I wanted to write a crazy novel called “Donald Trump And the Sex Vampire Menace” and my main character is the real Donald Trump, and throughout the course of the novel he has graphic sex with vampires and fights and kills vampires in gory fashion and says and does ridiculous Trumpy things and so forth (yes, I’m going way over-the-top here for illustrative purposes, but let’s say I’m serious and that’s my novel). I want to know if I would be correct in that Donald Trump would have no legal grounds to sue me because 1) It’s fiction, creative expression, and transformative; 2) The plot is so outlandish that even while totally offensive there’s no way any reasonable person could read it and think it’s true; and 3) It would be construed as parody (even if I can’t explain the parody) and as such is protected speech. Is there any chance in this situation I’ve described that Trump would have legal basis to sue me?
Tthanks!
Bill, I love your comment. It illustrates wonderful points.
Parody is a powerful way to make a statement about a person or issue, and the more outrageous the better. The key goal is a reasonable person should not see the parody as a statement of fact, so there is no defamation.
Another issue to consider is the right of publicity. Is using Trump is this manner piggybacking on his fame in order to sell your book? Perhaps. But you are not implying that Trump endorses your book or you are somehow affiliated. In fact, just the opposite.
Since he is a public figure, and portraying him as a egotistical clown is all over the internet, this is the sort of public discussion that the First Amendment protects.
All that being said, there is always a risk that Trump could sue. The suit might get thrown out of court, but he could still bring one. Consider that a marketing opportunity; think of the publicity and how many books you will sell.
But you might also look into buying media perils insurance or business liability insurance. That way the insurance company would pay for the attorneys. Before you pay the premium, discuss your project with an insurance agent to determine how much coverage you will get and at what price.
I have a short story in a book of fiction that’s a fake news article about a famous radio talk show host. In the fake article, people commit outrageous crimes while listening to her show. (the content turns them into lunatics.
The story is parody, ridiculous, and never alleges this person is purposely driving people to crime. It does, however, quote the criminals and their attorneys as attributing the bile from this woman’s drove them to lawlessness. The show, for the record, is shock jock material, and the fake article supports that by referring to her as a potty mouth, vulgar, etc., which well known.
(It’s a little Onion, a little SNL, and a lot farcical.)
Can she litigate for using her name in the title of the story and throughout the article?
Thank you.
Max, The sad truth is someone can always sue you. The case may be weak, or even groundless, but you would have to get an attorney to help you show that to the court.
The general rule is you may use a real person’s name in your work if your work is not an advertisement, the use of the name is related to the topic of the piece, the topic is of public interest, and what you say is not defamatory.
With parody, make sure you don’t go half-way. Make it clear that what you say cannot be taken as a statement of fact by a reasonable person.
Your concept sounds interesting and like something that should be written. There is a risk she may be vindictive and go after you. Consider that the perfect marketing opportunity. But also consider buying some business liability or media perils insurance, just in case.
I am writing a highly fictional “sword and sorcery” novel. It takes place in a world of my invention, during a medieval themed age. I often use the first or last name of some people I know to name characters, never first and last name together though. Most people whose names I use are aware and have given written permission, but I have not asked everyone. In particular there are a couple inept characters that have the same first names as people I know, who have not informed beforehand. These characters have no similarity to the real life individuals, other than the fact that they have the first names of people I have worked with.
Could I be sued over the use of someone’s first name in this type of context? Even if the story is in no way based on their life or personality? I know that anyone can choose to sue me for any reason, but it seems to me that using first names only in a high fantasy novel would keep me fairly safe.
Any feedback is highly appreciated.
Cheers!
Cece, I don’t see any problems here. You are not making false statements of fact about anyone. You may be making comments about their personalities, but those are creatively expressed opinions and not facts.
I am planning on self-publishing a memoir. Over a decade ago, my daughter was killed by a drunk driver. The case went to court and the man responsible pleaded no-contest. My book is about my journey in surviving my daughter’s death. It explores the time we had together, her childhood, my writing and hers. In this book, I recount many incidents from her childhood and use first names of her friends, mine, and family. None of this verges on defamation but rather are positive memories. Do I need to obtain releases from everyone named. To say that would be cumbersome is an understatement! I also make reference to the individual who was driving drunk (by first and last name) and the other 2 individuals he killed (all of which is public record). It would be impossible to obtain those consents. I appreciate any input you can offer.
Reanne,
First let me say I am so sorry for your loss, and I admire your bravery in writing about it.
As I mentioned in the post, the risks you need to consider are privacy claims and misappropriation of the right of publicity.
I’ll start with the right of publicity.
Using someone’s name, image or life story as part of a novel, book, movie or other “expressive” work is permitted because it is protected by the First Amendment, even if the expressive work is sold or displayed.
For instance, the family of Billy Tyne, the ill-fated skipper played by George Clooney in The Perfect Storm, sued Time Warner for using their names for commercial gain without consent or compensation. They also complained that the actual events had been so fictionalized as to portray Tyne as inept. After a protracted legal battle, Tyne’s family lost.
Courts consider the following: is the use of someone’s name, image, or life story reasonably related to the subject matter and is the subject matter of public interest? Public interest is so broadly defined it covers hard news as well as celebrity gossip. Your story would be of public interest.
Courts are also quite tolerant of fictionalizing a true story. They presume audiences understand that a retelling includes made-up elements and are not statements of fact. You should, however, include a disclaimer such as “This work is based upon real events. Certain events, dialogue and characters were created for the purposes of fictionalization.”
As to privacy claims, you need to consider whether any of the information in our book is truly private and seriously damaging. Anything that happens in open court is not private, no matter how damaging. Same with info in publicly available court filings. As to any other information, give it some careful thought.
I wish you all the best.
I am writing a book on my 25 years as a hospice chaplain. It is a collection of uplifting stories of people encountering spiritual transformations, family reconciliation, –kind of a “chicken soup for the hospice soul” book. Most stories are from years ago, none are present patients, but I have changed all names, dates, diagnoses, and many of the circumstances to avoid HIPAA privacy problems. There are no embarrassing or negative things said of anyone. I feel it would be a great addition to the genre of books on death and dying as it just shares uplifting stories. Is there a way to publish it without running afoul of legal/HIPAA troubles?
Do I need my siblings consent to use a picture of my mother on the cover of my book? My mother gave me this picture before she died.
I am writing a book about my dead aunt who engaged in promiscuous sexual behavior in her younger years. She had four children out of wedlock and never told the children the name of their fathers. The children are still alive and do not know who their fathers are. I am writing a book on this masking as much as I can. Can I still get sued for writing on a true situation?
Thank you.
Sandra Tanner
Sandra,
The problem is…who took the picture of your mother? Just because your mother owned a copy of the photo does not mean she (and you) have permission to publish it, particularly on a book cover. You should track down the photographer and get permission, if at all possible. If you can’t find the photographer, then you have an orphan works problem. You should research that term to learn more.
Regarding your siblings, you MAY need their permission. It depends on which State your mother lived in when she died. In some States, the Right of Publicity survives a person’s death. It’s a very grey area, but I recently wrote about it here: https://www.thebookdesigner.com/2015/07/tricks-and-traps-of-using-real-people-in-your-writing-part-1-the-right-of-publicity/
Email me if you need more info.
Helen, in order for me to protect my personal assets, should I consider creating a Corporation and have the Corporation named as author and publisher?
Calvin,
It rarely makes sense for writers to form corporations. I just wrote a post on this topic for The Book Designer website. https://www.thebookdesigner.com/2015/06/should-writers-incorporate/
Generally, you are better off buying business liability or media perils insurance than incorporating. And, you may not need any insurance if you are writing a book with little risk of triggering a defamation, privacy or infringement claim.
I am writing a fiction novel based on a true cold case and my own life. In my book I am referring to the actual murders, names of the victims and actual facts about the cases however they were never solved and in my book they are. Additionally, a lawyer I refer to during the trial actually existed but is now deceased. I would also like to refer to the mother of one of the victims as a witness during the trial in the book as having dated the defendant. There are many other embellishments that I use throughout but my questions are:
1) Can I use the real names, dates and facts?
2) In doing so, can I change the outcome of the cases?
3) Can I use the real attorneys name and the mention the actual past case he worked on in the book?
4) In using the real name of one of the victims, can I say that her mother dated the murderer?
5) If I misspell names, or use a slight variation of them does that help?
I’m a first time author and really appreciate your help if you can.
Thank You!
Helen, read your article and helpful. If a suit is brought against the author who resides in another state, will the Plaintiff file h/she suit in their resident state or the state for which the author resides?
Calvin, This is a question that keeps lawyers busy. Jurisdiction. They fight about it for years in many cases.
The general rule is the action should be brought where the defendant resides or where the action occurred, but the phrase action occurred has been stretched to include almost anything, including that a few copies of an author’s book sold in the state. No easy answer to this question.
Helen you are terrific. Thank you for your fast response. The picture was taken in 1959 by my father or my uncle (my mother’s sister’s husband). Mother could not remember which one took the picture. All three are now dead. I’ve tried to find out who developed the film, but have had no luck. Nothing is on the picture except “1959.” My aunt(my uncle’s wife) is still alive. She is 87 and can’t remember the picture at all. They did not have any children. I’ll do more orphan research. I may do a parody of the picture. As for my promiscuous Aunt (another one of my mother’s sisters who is also dead), I want to use her story as a backdrop to a fiction murder mystery. Is it ok to do this as long as I don’t use real names and places and do what I can to hide her identity? She was a real vibrant and likeable person.
Sandra
Sandra, Yes, you may use someone’s life story and it’s best to mask identities to avoid possible claims, not to mention awkward family gatherings.
I was wondering if you can use fictional characters like for example, Scooby Doo or Superman in your own novels?
Rumshah, Using a character created by someone else can be a problem. Distinctive characters are protected by both copyright and trademark law. You could probably get away with mentioning a character, such as having of one of your own characters call someone Superman or Micky Mouse. But wholesale use of a character is inviting trouble.
Hi Helen, very informative article.
I am presently writing a book about a guy who commited an act that put a whole nation in danger. He is presently deceased. And the act is in public records and isnt secret. However in writting im suggesting from his perspective that he was manipulated by a secret organisation. Telling the fictional story of his life and how he arrived at the act. Can i however get sued by his wife who is still alive even though i leave out her name from the entire story?
Ralph, Writers and movie makers often fictionalize real life stories. I discuss some of the issues (and disclaimers) in my recent post on thebookdesigner.com.
https://www.thebookdesigner.com/2015/07/tricks-and-traps-of-using-real-people-in-your-writing-part-1-the-right-of-publicity/
However, someone can always sue you. Even if the wife has a weak case, she might pursue you if your novel is successful. You would have to be willing to accept that risk.
Hi Helen
Can business liability and/or media perils insurance be deducted from your income taxes?
I am writing a memoir, but I am almost assured of being sued no matter how much I change the description of characters, times, dates etc., I am writing about my experience of postpartum mood disorder and being gaslighted by my ex-spouse who is a partner in a very large law firm, He lives to litigate, e.g., 6 hours over 2 words during dispute resolution. I am a counselor and would love to help other women learn about these subjects, including how to escape the abuse and protect your children. However, gaslighting, a form of very insidious emotional abuse, needs to be described, because when someone is a victim, they most likely will not realize it. Both of these subjects are of public interest. There are movies about gaslighting,for example, Gaslight, and books about postpartum, for example, Brooke Shields “Down Came the Rain”. I really go back and forth on whether to complete this book. Your thoughts would be greatly appreciated.
Allie, First the easy answer. Yes, insurance premiums are legitimate business deductions for income tax purposes.
Your memoir sounds extremely important, not just for you but for other victims. The problem is how to publish it without facing the stress and costs of litigation.
You should most definitely mask identities. Have you considered transforming the message into a collection of essays? That way you will not feel confined to the memoir genre’s dictates about keeping close to real facts. You might write it as a novel for the same reasons.
If you feel litigation is likely, then you should consult one-on-one with an attorney regarding the potentially troublesome parts of your manuscript. With an experienced attorney on your team, you will be better able to limit your risks to those most worth taking.
Hola Helen. Thank you for the amazing responses. I didn’t quite find the answer to what I’m curious about.
1. I’m writing about a women’s life and she is providing me a lot of detail. Although not a memoir, I think more like, “based on a true story”, her parents were abusive (still alive) and I’m afraid they won’t sign any release. There are other characters that were dishonest in business, part of her challenges. They are critical to the story. Your thoughts? How would you approach this? Should I just make this completely fictional?
2. How does an author typically compensate the subject of their writing? In this case, even if it’s loosely based on her life, should I be creating a contract specifying % of some $$ (assuming it ever gets to that)? Again she’s been giving me tons of ideas from her own life story, I feel obligated that she sort of owns some of it even though she isn’t a writer.
Thank you so much and blessings.
– RR
Roger, Generally, it would be far safer to write the work as a novel and mask the characters so that the real individuals were not reasonably recognizable.
In terms of compensating the woman who provided you the information, there is no set compensation formula. It’s all negotiable. But it’s always best to get your agreement in writing, especially her agreement to let you use the material. I have seen too many people change their minds about that when they start seeing actual drafts.
Hi Helen,
First, thank you for writing the article. Second, I’m well aware that lawsuits can be filed for almost any reason.
All that being said, I have been working on several novels which are memoirs, mostly about past relationships. I absolutely do not want to fictionalize my works and want to even emphasize the fact that these are true stories. I want them to be snapshots of reality. Again, the truth is the most important aspect to me. About the only compromise I’m willing to make is the changing of names, but the main persons in my works could easily identify themselves. I will be disclosing private information (not anything like birthdays or SSNs) mostly about things that happened in passionate moments shared. I’m fairly certain that although there are no famous people in my writing, the persons involved wouldn’t sign releases.
Although there is no guarantee of success, I’m considering putting half of the proceeds into a trust in the names of the persons in my memoirs. Ironically, it’s not my goal to achieve fame or fortune (it would be nice though).
I must admit, I’m very afraid of disclosing such personal and true information, but I can’t let the fear prevent me from completing my works and sharing them with the world. I feel the truth is hidden from us so much these days that I absolutely cannot compromise on telling it.
Do you have any advice? What do you think about putting half the proceeds into a trust (at least in regards to the fact that I’m not trying to profit on the other people or that anything is meant with ill intent and that I feel it belongs to them because they are half the story)?
Thank you in advance!
MW, Interesting question. While putting proceeds in trust would make you appear more sympathetic, it is not really relevant to a cause of action claiming defamation or disclosure of personal information. Those claims are based on the content of what you say, and its effect or potential effect on the recognizable person.
BTW, a person may not like it when they recognize themselves in your work, but they are entitled to legal damages only if someone else can recognize them AND the personal information is deeply embarrassing and damaging or is defamatory.
I found out today that my late husbands name is being used as a ghost character in a book schedule to come out later this year. The author is using his first and last name and also the fact that he was killed in a car accident. Can she legally do this?
Fontenot,
Most likely she can, especially if your husband’s fatal accident was reported in the news or is otherwise public knowledge.
You may have a few legal arguments in your favor. First, if your husband is a major character in the book, then you could argue that she is misappropriating his right of publicity provided you are in a state where the right of publicity survives a person’s death. Second, if the accident was quite awhile ago, you could argue that this information is no longer of public interest and her use of this information invades your privacy–not your husband’s since the right of privacy did not survive his death.
In either case, if you want to threaten or bring legal action, you should engage a local attorney to assist you.
You could also write the author and publisher and request that they change the name. They may be sympathetic and do so.
Hi! I found this post very useful. I’m in a bit of a tricky situation as I’m writing a book about my previous job as a tour leader. I travelled the world and have some stories to tell. I want to include stories that highlight what awful things can happen in the travel industry, including rape and even death. I obviously NEVER mention any names, dates or anything like that, but it would be possible for the affected people to recognize the stories and identify themselves, and for their friends and family to realize who I’m talking about.
I’m not calling anyone a criminal or putting anyone in a bad light, BUT these stories are obviously very personal. I’m telling only facts and from my own experiences, but the people they are about might not want the stories spread. Am I in the right to publish them?
Johan, There is always a risk, particularly if the information is private and potentially damaging. So what you can to mask distinguishing features and facts so that the real people cannot be recognized.
I have completed a long autobiography rich with family history and genealogy. I mention divorces and remarriages of my parents, siblings and my own as part of the family story. Such are public records and common knowledge so I presume they are are not a privacy problem. However can I discuss medical conditions of my remaining parent since that may be useful to descendants?
Secondly, a significant part of the tale is the severe emotional problems and counseling treatment of my ex-spouse 30 years ago that led to her walking out but also to my own treatment and recovery. What I learned in my own treatment (at the same facility) was important in my life and I believe of public value. I obviously cannot hide her married name, though I did her maiden name, and mention only events that occurred between us, not any diagnoses (which I can only speculate about). How do I deal with the privacy issues? Her whereabouts since our divorce are unknown to me and to her remaining family.
I am in the process of writing a Sci-Fi, can I use the words, “Military” without identifying which branch of service, and ‘Red Cross?’ Such as one of my Characters is employed with the Red Cross.
You may certainly use the word Military. It is a generic world and not “owned” by anyone.
Red Cross, however, is a well-known name and probably a tradename. There is little risk in mentioning a trademark, so long as you are not disparaging the mark or the organization, or creating the impression that your book is somehow related to the Red Cross.
You said “to include almost anything, including that a few copies of an author’s book sold in the state. Isn’t it possible to only market a book in certain states? If so does that help force the Plaintiff to file the suit in the Authors State lets call it State X. A book purchased in State X could end up in the Plaintiff’s State by way of a gift etc. Then what?
A gift probably would not give them the right to pull you into another state because you are not actively doing business in that state. But if you are marketing your book through Amazon or Ingram, then you cannot opt out of selling the book in certain states. They don’t give you that option.
If someone sues you in another state, it’s best to get an attorney involved to look at the particular facts. It’s unwise to ignore the suit and assume they can’t get to you.
Hi Helen. I am writing a memoir about my life. My father is incarcerated and I have saved his letters since I was a teenager (I’m now in my 40’s). In his letters he tells me about my grandfather, his dad, who is locally famous, and will soon be nationally famous. My grandfather has done terrible things to each of our family members over the years, including me. He says and does horrible things, and my father told me about these things in his letters . I plan to change the names, yet still write what was said in the letters. There are also several legal documents supporting what was written in the letters. Can I be sued for disclosing what my father wrote and the court documents? I know he will sue if he can, he does not put up with anything he views as disrespect, and he has the money for the best lawyers.
He has also bribed several judges. He contributes a lot of money to politicians campaigns and any lawsuit that has been filed, either by him or against him, seems to always work out in his favor.
Cara, It sounds as if you are walking into a hornet’s nest. Here are a few thoughts on how to reduce your risk.
How old is your grandfather? Can you wait on publishing this until after his death? Defamation and privacy claims die with a person.
Can you tell your story as a novel and use a pen name? That could make it more difficult for your grandfather to prove that he is identifiable in your book.
The issues and the possible mitigating steps will be very specific to your manuscript. It would make sense to have your manuscript reviewed by a publishing attorney before you release it.
Helen, thank you so much for your advice. How many details would I have to change (other than names) if I chose to turn the memoir into a novel and used a pen name?
Cara, There is no hard rule on this. You should change enough that the real people are not recognizable to others.
Ok so I just want to make sure I understand. I am writing a book based on my life so far, I guess that makes it an autobiography. I will be including much about my grandmother who was emotionally abusive and negligent. Mostly it is things that happened, my perception of her motives, and how i felt because of it. Would there be anything I should avoid. I doubt she or anyone she knows that doesn’t feel the same way i do (everyone else in our family knows of how she was and feels much the same), would ever read it or care. She is not a public figure. Would statements such as she hated me, be defamatory. It seems like I am stating a fact, which I really am, but would that be then considered an opinion. I think I am safe to write about her so long as I conceal her name, even though it is obvious being that I clearly speak of her as my grandmother. I am not giving any physical description.
I recommend that writers write their story and in the process reach for the truth, both factual and emotional. Once you have written it, then take a look back at it to determine if you are making factual statements that can be considered seriously damaging to someone’s reputation, not just embarrassing or uncomfortable. How sure are you that these statements are correct? Can you rephrase them as opinions or theories, and not facts? Don’t edit yourself too much during the writing process. Save that for later.
Great article, Helen! Thank you for the insight.
I’m a police detective, and I’m penning a novel about some of my more interesting homicide cases. Most have already been adjudicated (with convictions), and one is pending trial. Since I’m writing these from my own perspective, and as an active participant, am I covered from liability? I’m assuming that, since the information is coming from actual police files, they are a matter of public record? Can you think of any legal landmines I should be wary of during this undertaking? I was initially going to change the names of everyone involved (excluding myself).
Thank you so much!
Mark, whether something is a disclosure of private information or is defamatory is a case-by-case determination. Yes, in general, information in publicly available records is not considered private, although there have been a few cases where a writer exposed an arrest from 20 years earlier and was found liable for invasion of privacy. Also, if you expose an arrest, but fail to inform your readers that the person was eventually exonerated, you might be liable for defamation by leaving out important information. Changing names is always a good idea, since it makes it harder for someone to assert and approve a claim. At the very least, it will help you avoid nasty emails.
I am pretty far into a manuscript involving, essentially, a search for love and home. My characters (I hope) attend a well-known concert and certain well-known songs drive the plot. I realize you can never predict who might sue you, but does it seem reasonable to be able to write a completely fictional story that pivots around a famous event? How specific can I be about the music – IOW, do you think I’m OK to mention that during song X, he finally kissed her and the line kept running through his mind (the idea being fair use)? Also, I would love to include some kind of playlist or ‘suggested songs’ or footnotes on the music that appears in my story (all of it is favorable, so I have no doubt the artists would be pleased at its inclusion), but I don’t know if that has ever been done so I don’t know if I can just list the songs and artists or if I need permission. 65,000 words are waiting for the go-ahead!!! Thanks!
*sorry, HTML Attack: that was supposed to say, the line — insert romantic song lyric here — kept running through his mind.
Joanne, The good news is you may use song titles, since those are not protected by copyright. You may also name the artists, just so long as you don’t make it seem as if your book is endorsed by or somehow associated with any of those artists. So I don’t see any real risk in creating a list. Lyrics, however, are riskier to use, since they are protectd by copyright. I have a free download on my RESOURCES page on how to use lyrics.
Thank you so much for taking the time to answer the question! I love your site, so glad you have a giving heart!
Sincerely
Marsha
I plan to write a book based on mine and my friends stories. I will be interviewing them with full disclosure that I’ll be taking their stories and embellishing them. Do I need them to sign a release to ward off any legal issues in the future?
Shannon, Yes, it’s always a good idea to get a release. People often change their minds when they see their words or selves in print.
I have written a personal narrative that expresses my opinions and perceptions on discrimination. I make a comparison of male counterparts to myself. I make an observation that the poor implementation of company policy has contributed to a gender pay gap. I make reference to other writers and include those sources in my bibliography. I do not believe that anyone can be identified and I have proof of statements I make. Yet I have been told I will be sued for defamation if I publish even anonymously. The law in my country states a defendant must prove personal opinion, This is exactly what my narrative is personal experience, perception, observation and opinion. So how can I be sued?
Marie, I don’t know what country you are in, but in the U.S., opinions are protected speech. And sadly, anyone can be sued even if the case is quickly dismissed because it does not state a claim. It’s a risk writers need to take sometimes.
As I read your article and the comments section I seem to have more and more questions and doubt of the book I am writing. Having gone through tremendous heartache, betrayal, abuse, and having countless problems with the law,I have finally healed enough to write a complete accounting of my life.
There is no way that most people I will be writing about will sign a release since I plan on exposing all the horrible things they have done to me. I am at peace with the possibility of being sued. However, I believe my largest problem lay in the fact I will be exposing corruption in the Navy and a state government. I can and do have proof and witnesses to everything I plan on putting in the book. Should I be worried so much about these government forces coming after me still?
I can provide more information if needed but here is a watered down version. I was physically and sexually abused as a child and I reported it to many people I thought trustworthy after many years of abuse, teachers, school officials, mom, cops, and even DHS. Nothing was ever done or even investigated. Needless to say, I became I very troubled teen and eventually ran away at 15, when I met a Navy sailor who got me pregnant. He threatened me to have an abortion, which I refused. The Navy helped him fight taking a paternity test til the statute of limitations expired. He then talked me into sending my daughter to get to know him and the state allowed him to change her name awarded him full custody even though he had no legal rights.
So, I want to use all full names, dates, places, etc… Am I just asking for more trouble? This is very important to me that my story is told so hopefully it can help others in similar situations.
Kathy,
It sounds like you are doing all the right things; verifying information and keeping a record of your supporting evidence. In terms of exposing governmental corruption and incompetence, I would not worry too much. That is exactly what the First Amendment protects — criticism of the government. Yes there are cases where the individual governmental officials seek revenge, but that often ends badly for the governmental official since it’s an abuse of power.
I am concerned, however, about the privacy of your daughter. Could you be exposing private information about her that is painful or harmful?
As I have said before, keep reaching for the truth.
I’m middle-aged, and writing a memoir about a lifetime with a variety of disorders, (ADHD; anxiety; depression) and the repercussions of realizing them early on, but not getting help. I’d like to include family, former classmates, girlfriends, and co-workers (all by first name only) in true (sans documentation) experiences growing up to support my narrative.
Troubled territory? Their small parts of the story are basically a mea culpa to them; treating them with both empathy and respect. (Though, with one girl from high school, I’d like to include her lack of inhibition–something she reveled in–in contrast to me, in my admiration of her other qualities) Even still, many of them would not want to hear from me directly based on our past. This I know. So, going the getting-releases route is very touchy. Whether they’d take legal action or not might be a toss-up.
Would they have a case if I’m respectful to them? I’d like to stick to this story being a memoir, rather than turning it into a novel. Should I publish it anonymously? I’d kinda hate that, as I see this as a legacy. Should I strike their first names out? Would that protect me? (if I need protecting)
First-time author here, (can you tell, lol?) so thank you for any advice you give.
Mike, Legally speaking, you may use real names and real people in your memoir in almost all cases. What will get you into trouble is defamation (a false statement of fact about a recognizable person that is damaging to their reputation), disclosure of private facts that are highly embarrassing or damaging, or using someone’s name or likeness for advertising purposes. Also, if you are a party to a confidentiality agreement, you should respect that obligation. So long as you are truthful and not exposing painful secrets, you should be fine, as I said, on the legal side. This is the very short answer to a complicated area of the law.
Some people may be uncomfortable with being named or identifiable in your memoir, but that does not mean they have a legal claim. While it would be preferable to get releases, it is not necessary so long as you steer clear of the legal areas I mentioned above.
Hello Helen,
I just came across your website while looking into legalities of publishing a book based on fact.
Your blogs are amazing and so supportive and I thank you so much for that. It was so comforting to read your wonderful responses to the many questions being asked to you..
I have just finished my novel and really need some legal advise before I proceed to the next step. I have had a lawyer. friend read it and he has also advised me to seek legal council before proceeding publication.
Do you accept,this kind of work, and if not, can you recommend anyone who does?
I have no idea of the cost of such a project, but would be very interested in hearing your view on going forward with this project.
I want to thank you once again for your amazing feedback and advice that you have given to so many people.
Christine, If your manuscript has not been edited, then it may be too soon in the process to have a lawyer read your manuscript. Your manuscript may go through many changes as it moves along.
Yes, at at this point it might be helpful to get a better understanding of legal issues so you can revise around them, but you should wait on an attorney read-through until your have finished developmental editing. Plus, if your manuscript is picked up by a traditional publisher, they will pay their attorneys for the review.
Hi Helen,
Excellent website with great information. Let’s say that someone I know (;-) haha) is writing a fictional novel (set in the future) and in some sections is using the names and personality traits of real people (celebrities, politicians, etc), how risky is that? The characters are behaving in ways that you might reasonably think that this celebrity would (e.g., not a real passage, but let’s say Oprah Winfrey doing charitable work or Taylor Swift having a worldwide slumber party for women). Since the novel is set in the future and the characters aren’t actually doing these things or endorsing this work, would there be a cause of action for…anything there? (The named celebrities aren’t main characters but some are essential to driving the plot forward and necessary in that this celebrity is key to the story making sense). Thanks!
Brosephine, Interesting concept. There is always a bit of risk when you use celebrities as characters, even in fiction. You can reduce that risk by making it clear over and over again that the work is fiction (or even parody) and not a statement of facts. That would be by using disclaimers and by the tone and content of the book.
Your use of the celebrities should be limited to what you need to move your plot forward. The more you use a celebrity, the more risk.
However, anytime you use someone who has a public identity that is a “brand,” such as Oprah Winfrey, you run the risk of getting a letter from her legal team demanding that you remove her from your book. They may not have a strong legal argument, but do you want to spend thousands of dollars on attorneys fighting that fight?
If you are self-publishing, you could revise the book if that happened.
I am contemplating writing about loving an addict. Using my own experiences with this addict. Do I need to get his permission in order to write this and possibly get it published if I don’t write his name, city or state we live in , or any pictures?? Thanks in advance!
Laura, It’s always best to get written permission from people appearing in your writings. However, in many cases, it’s simply not possible to get consent.
If you are writing your book as fiction, then be sure that character is so different from the real person that the real person is not reasonably identifiable to other people. You can also mask the identity in a memoir, although it’s easier for people to make the connection.
Particularly with memoir, you need to take special care to tell the truth and avoid disclosing private facts. The more damaging the information in your book, the more independent verification you should have to support your statements. My next post will focus more on memoir issues. I’ll ping you again when I release it.
But for now, write your story. Explore the truths.
Worry about these legalities when you get to the editing part of the process.
Hello Helen,
I am writing a nonfiction book about a U.S. governmental agency. Am I allowed to use actual court records, such as those from the U.S. Dept of Justice, and name people who have been indicted and convicted of various crimes? In addition, can I use names of people from newspaper and other news sources who have been convicted of criminal activity? Am I correct in assuming that a federal agency is in the public domain so I am allowed to copy material off of the website (an example would be the National Parks Service).
This was a great article, thank you!
One thing I’m not very clear about is the concept of character masking. If the focal point of the story (even with the ‘this is a work of fiction’ disclaimer) was a highly publicized event with a pretty unique outcome, the characters will still be recognizable in spite of any masking techniques. For example, if writing about a plane intentionally crashing into an office building while Prime Minister Dullard was making a visit to a local college…we still know who and what it’s about.
So, while I understand that this isn’t a problem if it’s only a retelling of the facts (because I’m reaching for the truth), I’d still like to make the story more interesting by inventing events that took part in the character’s private lives. For example, Dullard slapped his wife that morning during an argument. Since anybody could guess I’ve been talking about Bush on 9/11, could Bush sue because I’ve made that suggestion.
Hope to hear from you!
Rob, what you are describing sounds like fictionalizing historic or public events.
Adding dialogue to and enhancing the drama of real events are common practices. Look at Oliver Stone’s movies. I also write about The Perfect Storm lawsuit on TheBookDesigner.com https://www.thebookdesigner.com/2015/07/tricks-and-traps-of-using-real-people-in-your-writing-part-1-the-right-of-publicity/
To win a lawsuit in one of these cases, the plaintiff would have to convince the judge and jury that readers consider your book as containing statements of fact and that those statements harm the plaintiff’s reputation (among other things). The difficulty of winning these suits is enough to stop most people, but there is always some risk that someone will be so offended by what you write that they will sue, whether or not they have a case.
Hi, first of all I’m really impressed that you’re keeping up with the comments! But my question is this: I’m considering writing a book that includes self-disclosed personal stories. The subjects realize that I’m writing a book about their story, and the eventual book will leave all the characters’ names anonymous. Can somebody come at me, claiming they recognize a story (which of course they will), and sue me for using their story?
Thanks!!
Austin, I am a bit confused by your question. If you are talking to people for purposes of using their stories in your book, try to get written permission from them. If you can’t get consent, then, generally, you may use a story someone else tells you if you retell the story in your own words. But be very cautious if someone has told you something private and asked you to keep in confidential.
Someone can always sue you, unfortunately. But to prevail on a defamation or privacy claim, they would have to demonstrate that other people recognize them, not that they recognize themselves, in addition to all the other legal elements.
Thanks so much for the reply, Helen.
Before coming across my current story I didn’t consider this to be much of an issue, precisely because of Oliver Stone movies and the like. Now I do see that there is an element of legal risk to it, which I hadn’t considered before.
My take from your posts and responses, however, is that the risk of a lawsuit is small as is the likelihood that a plaintiff will win their case against an author. That’s without taking into consideration every writer’s biggest problem: whether their work will even see the light of day 🙂
Rob, You hit all the nails on the head.
Hi Helen,
I get the feeling that you love what you do because you’ve managed to reply to mostly all of these comments- bravo!
I’ve worked for several prominent individuals in their home. Have signed a few NDAs. I’ve been writing my work of “fiction” in the form of a diary for over 20 years and am now putting all the entries together as a series of essays and changing the names and identifying characteristics of each person as I write.
Some of these people are celebrities and well-known billionaires and some are not.
I’m also using a pen name, the one you see above. Will this protect me? And can I insert names of political figures that I’ve met incidentally, because they’re public figures?
I’m writing the events exactly as they happened, but I’m changing any identifying details. I would think that this is sort of a double protection, because it’s the truth, and even though some of these people might be portrayed in an unflattering light, if they sued, they would need to prove that: a) it’s not the truth, and b) admit that they behaved badly.
I hired a writing coach who couldn’t give me a definitive answer. What do you think? Thank you!
Summer, I sure you have a lot of interesting stories to tell. However, you are taking some risks.
If you signed NDAs (Non-disclosure agreements), then you may be breaching them even if you change the names and use a pen name. Those measures should make it less likely that you will be found out, but the disclosures may still be a contract breach. This is a separate cause of action from defamation, so even if everything you say is true, you might get sued. I am not saying you shouldn’t take these risks; that’s up to you. But take them knowingly.
Your blog has been helpful. I’m finishing a first book and have had fun naming characters after friends and family. In most cases, I’ve used a last name or a first name and in a few, the full name. But the characters’ vocations are different than the namesakes. Everyone is getting a kick out of having their name, or part of their name, in the upcoming book. Should I get a written (email?) release from them? Can you direct me to a sample?
Thanks so much for your excellent advice.
John,
Almost anytime you ask a lawyer if something should be in writing, we are going to answer yes. We’ve seen too many times where trust was not enough. I’ll email you a sample release.
Good point. Thanks for you excellent help, Helen.
Thank you for this website Helen! I just found it today and it’s full of valuable information. I do have a question I haven’t seen dealt with here; however, and it is as follows. I am writing a memoir about the end of my 25-year marriage. The message of the memoir is, “Can you ever be sure you really know someone?” The story involves rampant infidelity of course, but also financial intrigue, emotional manipulation, and more. The centerpiece of the story is an eight-month sequence of text messages between my ex-husband and his last mistress. The text messages are priceless–shocking, explicit, salacious, and hilarious. They were sent and received on a cell phone that was owned and paid for by our business, in which my ex-husband and myself were (and still are) 50-50 partners. (The business will not be harmed by this memoir; on the contrary, there will most likely be some useful publicity created by it.) I consulted a lawyer informally, who told me that if I am an owner of the business, I also own the phone and the text messages. My only obligation is to use them verbatim, and not modify them in any way (which I will gladly do!). Would you agree with this assessment? And would you recommend that I change the names of the main characters in the story? Everyone in our community will know who the players are even if I do.
Charlotte, Your situation sounds quite painful and, unfortunately, legally complex. There are no simple answers, and no get-out-of-a-lawsuit-free advice I can give.
From what you have written, I see many legal questions. Does one business partner have the right to use business assets to harm another partner? Does the business have any ownership right to the texts written by the mistress? She wasn’t using a company phone, and I can’t see that her texts appearing on a company phone gives the company ownership. What about her privacy rights? (Yes, she can sue you.) And how will your book affect your divorce settlement? I could go on and on.
I don’t want you to answer these questions; these are just the first ones that come to mind.
If you want a litigation risk analysis for your book, you’ll need to hire an attorney and spend several thousand dollars, at least. (And not me! I do business transactions, not litigation.)
Sorry I can not be of more help.
Thanks so much for your reply Helen. These are excellent points, and I will definitely hire an attorney to do litigation risk analysis as you suggest.
My ex best friend has written a book about her experiences as a victim of many incredulous life events. Some or most of them aren’t anything to do with her. She’s taken my own tragic events and used them as they’re her own. What can I do about this?
Thank you.
Mel, There is little you can do about it, effectively.
Someone’s life stories are not protected by copyright unless you write them down. Even then, it’s how you tell your story that is protected by copyright, not the story itself.
A life story might be protected by privacy or publicity rights, but if she changed the story to be about herself, then it’s unlikely you will be recognizable in her work.
If she wrote a memoir, then she may be misleading her publisher or her readers, but then they might have a claim against her, not you.
You can ask her about it and she what she says. But you may be better off staying far away from someone who would do such a thing.
Thank you for your guidance, Helen. This website is a gem.
I am writing a memoir really, but fictionalizing liberally (certainly not completely), so I consider it a novel. However, the story essentially recounts my life events and therefore includes people that have been a part of it. Some of these individuals, no matter how I fictionalize their personal traits and names, will be arguably identifiable based on their ROLE in my life and our shared experiences, e.g. former husband, mother, grandfather. Thus, it would be impossible to exclude all potentially “embarrassing” information, because these details drove the events, personal growth and substance of my life.
The public interest may lie ultimately in what can be gained by sharing in my journey and end point message, i.e. that one can aspire and succeed despite poverty, abuse, a spouse’s substance abuse, single parenthood, etc.
What does writing under a pen name accomplish? What are the advantages, the limiting factors and the disadvantages? What protection does it offer? Does one have to maintain relative secrecy about having written under a pen name?
Is it at all protective to fictionalize personal characteristics and names, while remaining true to the events (including potentially embarrassing revelations) when the parallel of my life story will be at once recognizable and litigious individuals could simply assert that they are identified by their known role in my life (e.g. husband, mother, etc) and overlapping experiences?
This story will have greater impact if it is understood to be “based on a true story”. Given what I have disclosed, could that be asserted at all safely?
I truly appreciate your consideration.
Dawn,
You are describing a very real tension faced by many writers. You want to tell the truth because your narrative arc, message, themes, insights, and personal growth are based upon the truth. But you want to protect yourself and others from pain, embarrassment, and litigation. You may not want to give a toxic person a reason to step back into your life and cause you more pain.
I have no bullet-proof answer for you, because the decision on whether a work is defamatory or an invasion of privacy would be up to a judge or jury. And I cannot predict anyone will react.
All I can say is write your story and search for the internal and external truths. After you have the first draft, read through your work and identify information that may be potentially damaging to others, including the small players. Take extra steps to verify and support the truth of damaging statements, to identify what information is private, and most importantly to determine what information is essential to your story.
Also do what you can to mask identifying features. And consider using a pen name. One of the benefits of using a pen name is that it may add one additional factor that reduces how recognizable real people are in your writing.
I would like to publish a story online that talks about my friends’ life along with mine. All the characters are real but I have changed the names. The main character’s are in a tag crew which is basically a gang without violence. I do not plan to write anything bad about the characters but they do some illegal things. Do you believe there could be any legal problems with the story?
Abby, if your work is fiction, then be sure to mask identifying characteristics particularly if the criminal acts are serious enough to damage a person’s reputation in a way that will affect their income or standing in the community. Since these are your friends, you might want to let them know what you are working on and see how they respond.
Hi Helen. I need some advice. I am writing about a true event that took place over a hundred years ago. These people have all passed away, and I was planning on using the real name of the event along with the real names of the individuals involved. I am not speaking of anyone in a bad way, and although the story is purely fictional with an added paranormal twist, the story will include key factual evidence about this incident that I have found from online newspaper articles from during that time frame. Am I better off to change the names of the people anyway? I was going to add a disclaimer noting that the story is purely fictional with the exception of a few facts – and list them. Any information you could give would be appreciated. Thank you.
RC, You don’t need to change the names from a legal perspective. Writers may write about historical events from 100 years ago without legal risk.
Hi I would like to write a screenplay about a client I had in the past and their very interesting story. I no longer work in the industry of drug and alcohol where I met this person and would love to have a go at this. I would use different name location and change certain aspects of the movie including the ending as this person is still living. Am I at risk if they recognise their story as there will be parts that they will probably?
Jennifer,
Generally, the legal risk is triggered if other people recognize a character in your work as a real person. If someone recognizes themselves, that is not enough.
However, you mention that the person you want to write about was a client. You should consider whether you have any professional or ethical duty not to disclose any person information about your clients. As an attorney, I certainly do.
Hi Helen, thanks very much for this post – and for all of the follow-up discussion! I am in the final stages of writing a memoir about my wife, who died of cancer after being told by a very famous international healer that he would cure her. I don’t blame the healer for her death (in life or in writing) and I never actually heard him tell my wife that he would heal her. Still, I wonder…am I setting myself up for trouble?
Leigh, Maybe. It depends what you say and whether the healer is aggressive about going after anyone who challenges his business/beliefs.
If you are looking to have your memoir traditionally published, then your publisher should take care of any legal review of your manuscript. If you decide to self-publish, then you may want to have an attorney check your manuscript for potential problems.
Hi! It’s amazing how much I learnt by reading your blog. Thank You very much.
So I’ve got only one question.
I’m writing a fiction story, my own characters, city and brands.
But my dad, being a money-vampire is always asking if any of my main characters is based on him, none of them is fortunately. But one of them had a dad who could be identified by my very close family as someone based on my own father. They’d agree and probably be happy. The man is a bad person, alcoholic and neglecting, that is true. But has a completely different backstory and physical appearance and lately I was thinking of naming him after my father, just first name.
Should I do this? Also, would he be able to sue me for anything? I don’t want him any near me or my story.
Ah and another question, what if tricked him into signing a release form?
Thank you very much Helen.
Nupao, I would not name the character after your father. It sounds as if your father is already attuned to the possibility that he will be portrayed in your book in a negative light, so why make it easier for him to make that accusation.
Unfortunately, someone can always sue you, even if their case is very weak. Comes with the territory.
Tricking him into signing a release is not likely to work. A release is effective if made “knowingly.” And if you got into court and tried to rely on such a release, you would look untrustworthy — not something you want in litigation.
I am almost finished a first draft of a book about adopting a child who had severe difficulties mental, physical and emotional and is now adult.
I see it as necessary as a public service to share the struggle to get services and help that were needed through the years, and the ignorance and indifference of many people in authority that made things much harder.
I am writing the truth and it is not defamatory in the sense that anything criminal is revealed but I know that the adult child would not want the struggle revealed and would consider it an invasion of privacy. It does discuss cognitive and behavior problems that most people would not want to have aired in public, but in order to write about this at all I need to show what the problems were, (and are).
Is it best to present it as a novel, altering details and places enough for people to be uncertain if we are the family involved, and to use a pen name, (but that won’t fool the protagonist) and to say “based on a true account but non-essential details are altered”?
I am confused about the invasion of privacy law. If embarassing but non-criminal details are revealed (lets just pretend I describe a teenage boy who peed on the rug in the living room when stressed), would that be considered a threat to his reputation and could I be sued for that?
Gabriel, It’s not surprising that you are confused about privacy law, since the court rulings are inconsistent. They typically reflect the judge’s or jury’s gut feelings of fairness and privacy. That’s why it is so hard to give definitive answers to questions like yours. But a privacy claim is not limited to the disclosure of criminal acts. Events such as you describe do call into question a person’s competency and that may be considered sufficiently damaging to support a legal claim.
Yes, it would be safer, legally speaking, to change names and characteristics whether you write the story as fiction or non-fiction. When it comes to disclosure of potentially damaging, private information, you should make enough changes that your characters are not recognizable to third parties.
Hi Helen,
I stumbled upon an incredible true story that happen back in the 1970s. It was headline news and involved a highly visible public figure.
Like many who write to you, I want to know if I need permission to write this book/screenplay from living relatives…if any.
Only one of the three individuals is still alive.
I have googled searched possible relatives with no success.
Could the fact that it was such a highly visible news story, be considered public domain? and relieve me of any legalities?
I could write it as being “based on a true story” but changing the names would lessen the impact of this true story.
Also, how can I find out if a book has already been published about this story?
Thanks
Tom, True events that happened in public, or were widely reported in the news, are fair game. As I mentioned in the post and other comments, if you are writing about events or information that may be seriously damaging to a person’s reputation and that person will be recognizable to others, then make sure you build a file that supports your statements. You should also be sensitive to right of publicity claims. For now, you should write the story with these issues in mind, then have the manuscript reviewed by a lawyer before you publish it.
To find out whether others have written about these events, I suggest an internet search. Even if others have written about the events, that does not stop you from telling the story your way. Just don’t copy how they told the story. No one has a copyright interest in actual names and events. The copyright interest applies to how they told the story.
Thanks for the informative blog.
I have started on an autobiography which I intend to present in a fictionalized manner. I intend to self-publish under a fictional name. I’m not very concerned about any non-famous people I will mention, as I don’t anticipate problems in that regard.
However, there are famous people I knew from my childhood and have worked with since (entertainment industry family), such as Elvis Presley. In order to write about those experiences, which were formative influences upon me, I believe the story wouldn’t be effective if I fictionalized celebrities. My experiences were generally positive or, at least, insightful. These experiences would contribute only passing elements to the autobiographical “novel”.
I guess I’m a bit confused about one’s legal right to tell one’s story, from one’s own perspective. I do plan to include an introductory blurb pointing out that these stories are about experiences from my perspective, at the age and state of consciousness I was in at the time, and that other people who were there might have different perspectives.
Would it be reasonably safe thus to include my celebrity stories?
Hap,
The court rulings on the right of publicity are inconsistent and I can’t guaranty what a court would rule in your case. But generally courts permit writers, film directors, photographers, etc. to use real names and stories as part of a larger, expressive work if the use is related to the story/meaning of the expressive work. So the mention of a celebrity that is a small part of a novel should be protected by the First Amendment. In contrast, selling a t-shirt with the image of that celebrity is not because there is no expressive content other than the image.
The courts also frown on the use of someone’s name or image that is purely commercial, such as an advertisement. For this reason, I recommend against using anyone’s image on a book cover without permission (unless the person’s been gone for 100 years or more).
Great article, thank you!! One of the comments you left above made me think of a question. A character in my novel dresses up like Spot the Dog for a kid’s birthday party. She mentions it and talks about it briefly, and how the kids pull on her tail, etc. I know I can mention the title of books, but can I mention her dressing up in the costume? Thank you.
Linda S, This sounds like an incidental mention of a copyrighted and trademarked character. It should be fine, but I don’t know whether Eric Hill’s estate is aggressive about protecting their rights. If you wanted to eliminate any concern, just remove the Spot name and have the costume be any dog.
Helen, First off, what an awesome and very detailed post! This is exactly what I needed to read because I am currently writing a 3-part series about real life events that happened to me. For years, I went on many dates with women. Some were just dates, others we got drunk and fooled around, and then others ended in sex. Ultimately after leading this lifestyle for quite a while, I ended up depressed, left with a terrible view on women and dating, and ultimately I knew I needed to make huge changes to get my life back on track. So I’m writing because I want to help others NOT go through what I did.
I’m recounting many of my stories because they are pretty crazy. I’m NOT using real names, I’m NOT using real locations, and I am changing their characteristics. Ultimately I’m not trying to make anyone look bad, because lets face it, I’m the one who looks bad for living this life style! But to add some credibility, I’ve included some real text messages as dialogue, word for word. It’s some good stuff. With that in mind, no one will know who these people are, unless the girl I’m talking about says hey, that’s the text message I sent that guy! He’s writing about me! That’s the only way she’d know it was her. Is this a bad idea? Should I avoid using those text messages? They make it more realistic and they aren’t hurting the girl I’m talking about. Thoughts?
Adam, You raise several issues. Defamation, privacy and copyright.
Regarding possible defamation and privacy risks, you should certainly do all you can to make the women unrecognizable to others. From your comment, you seem aware of this risk.
However, the women could claim that you have no right to use their text messages and that they own a copyright in those writings. If would be better if you rewrote those text messages in your own words and not use their words.
Would I be in legal trouble if I had a character named after a famous person, because “they were their mother’s favorite author?” What if I spelled the name slightly differently?
Mary, I fear it’s risky to name a main character after a famous person. Most likely, no one will care, but in a few instances, celebrities have gone after people who use their name, particularly in a negative light. But it has also happened when a celebrity felt someone was piggy-backing on their fame to sell books.
I am being extra cautious here. Being a lawyer, we come to expect the worst.
Helen, thank you so much for this informative post and responses. I have certainly learned a lot but am now unsure as to how I should frame the book I am writing.
I worked for a very eclectic attorney who unsurprisingly turned out to be insane and a major drug addict. After many dramatic misadventures we parted ways and he was eventually murdered by the employee he hired to replace me. This was many years ago and I’ve been writing it as an essay using his real name, but as I’ve begun introducing other characters involved, mainly his right-hand-man and my co-worker, I’ve begun questioning the legalities.
From what I am seeing on your site, it seems smarter to write as a fictionalized novel rather than a series of essays, and change the names of all involved to avoid any identifying characteristics, including the deceased main character. Besides the people, all events are either my own memories or public record – of his murder and other crimes committed.
Do you agree with my deduction that I’d be safer with a fictionalized novel format?
After further research, I believe writing a memoir and changing all names shouldn’t be too much of a grey area, especially since I’m not speaking negatively of anyone still living. Should I even be overly concerned about liability?
Since the lawyer is deceased, he cannot be defamed. And it sounds as if you are relying on public records or information of public interest, so I suspect there is little privacy risk with respect to info about the lawyer.
But writers often get in legal tangles because of their treatment of small characters. They gloss over the truth or reveal private information. The info that may not be private about the main character, your lawyer, may be private for another person. Be conscious of what you say and reveal about them. If in doubt, have the worrisome parts of your manuscript reviewed by a publishing attorney.
Dear Helen, I am writing a short fiction story and have a famous rocker making a cameo appearance. She appears twice. Once when my character accidentally opens the door to her room and once again when they meet in a cemetery. A smile and a nod are exchanged, but no words. The character speaks only of her respect for the rocker. Is this ok?
Yes, a brief appearance of a real person should not be a problem.
Helen, thank you for this wonderful, thoughtful post.
I am researching and writing a piece about a dramatic, real-life situation that occurred over 50 years ago involving a famous ex-pat artist (X) and a fan (Y).
I’m frustrated because:
1. I can’t find a lot about the fan, Y (whose real name I know);
2. I know from my research that X and Y exchanged important letters, which may or may not be in X’s papers or library archives, or in the possession of X’s family; and
3. X’s survivors (one of whom, Z, is still living) have been litigious and obstructionist in the past about the most innocent aspects of X’s life (they lost in court but ughhh…). My close friends have urged me to just make up the content of the letters, but I’m concerned about Z’s going nuts on me in a lawsuit–even though some of what I know and want to use about X has been published by others.
So can I make up what I think might have been in the letters? What if they still exist? And if Z died tragically, am I permitted legally to write speculatively about the details of the death? And whose names do I have to change?
Thank you for any light you can shed on my dilemmas.
Ami, Legally speaking, you have a lot of leeway in using real names and real events, so long as the information is true (and even better, verifiable) and not private. Writers also have a lot of leeway in dramatizing events by creating dialogue and correspondence, as long as they make it clear by disclaimers and in the text that they are speculating or dramatizing events. But that won’t stop someone from making your life miserable by suing you. Even if you win, it would cost you many thousands of dollars, not to mention sleep and stress. There is no easy answer here, sorry to say.
PS: Oops–meant to say if Y died tragically (#95).
Hi Helen,
I’m writing an extract of what could turn out to be a full novel for a University assignment. I want to use a real life character that was accused of murder some years ago in America. The person in question escaped from jail in the early seventies and was on the run for approximately thirty years, in which time they were able to marry and have children.
Can I base a story around the alleged crime if I change her name? And would I be able to include extracts from newspaper articles about them?
Although they are currently behind bars at present, they claim to be innocent and wish to appeal.
My story would not say whether they were responsible for the crime, only that they deny that they committed the crime.
Thank you for any advice.
Kelly, Yes, you may base a story on a real event and real people either as the basis of a fictional work or in a non-fictional work, so long as the information is true (and even better, verifiable) and not private. In this case, sounds both verifiable and public.
Writers also have a lot of leeway in dramatizing events by creating dialogue and correspondence, as long as they make it clear by disclaimers and in the text that they are speculating or dramatizing events.
Hi Helen – so happy I found this site. I have written a piece of literary fiction that uses much of my own personal life as a backdrop. The story is about a woman who relocates with her family from a large metro area to her husbands small hometown – something that took place in my own life. The transition is difficult for the woman as her husband’s family is intrusive, judgmental and overbearing… Husband falls back in with old friends, has an inappropriate relationship with a female neighbor. These are all things that happened to me. I have created a fictionalization version of events in which the woman loses her mind and starts exacting elaborate revenge plots against the mistress and others she feels have done her wrong… I essentially took a set of real life events and used them as a jumping off point for the story. in referencing in laws and extended family, I exaggerate their rural dialect, their intelligence level and of course, change their names… The content includes reference to many real events. For example, my father in laws outrageous behavior at my sons sporting events, my MIL coming into my home and rearranging furniture, and the fact that the grandmother has an insistence on everyone in the family sleeping at her house on Christmas Eve… The mistress is portrayed much as she is, though in exaggerated terms. Some characters are compilations of traits of other people I have known. In short, there is a good chance people could recognize elements of themselves, if only because of their relationship to the main character, who shares my real life back story. Their actions are true (for example, husbands friend propositioning me, mother in law being pregnant at 16, an aunt refusing to give husband a job because he wouldn’t help her carry in groceries at age 13) or so greatly exaggerated that they wouldn’t be know. The bulk of the piece is the main characters ongoing therapy session punctuated by journal entries and vengeful actions. I am considering a pen name because my intent is not to out or embarrass or hurt anyone, but I wonder if I am opening myself to potential liabiliity? Im starting to get interest from publishers and I’m feeling antsy about moving forward.
Maria, Sorry, but I can give only general legal information, not particular advice about your situation. In most situations, writers may use real people in their writing with little risk, particularly in fiction.
Defamation risk arises when all of the following are present: the people are identifiable to third parties, AND what you write about them would be considered by third parties to be statements of fact about that person (as opposed to an opinion, exaggeration, dramatization, or fiction), AND the false statements of fact harm their reputation in the community and ability to make a living. Usually the false statement involves something extreme, not just embarrassing. Truth is a defense.
For privacy claims, truth isn’t a defense, but the disclosed info must be truly private, seriously damaging, and not of public interest.
So changing names and attributes, using a pen name, etc. all those reduce risk.
Of course, anyone can sue anyone. The case might not survive early rounds in court, but they can still try to intimidate.
As you move along the publishing process, discuss your concerns with your publisher. They will be able to take a close look at your manuscript and advise you in more detail.
Thank you, Helen. I had a feeling that would be your advice. I thought the name would be cute, and it definitely would be used in a positive manner, but I can see how it might be construed as piggy-backing on a famous name. I hadn’t thought of it that way.
I wanted to write for the first time about my life starting in my teens and leading up to the present. it involves a ex-husband who was mentally and physically abusive to me. he was also a person who cheated on me and did drugs, I have 3 children and my husband now of 20 yrs plus, have adopted y grandson who was born with meth in his system and is a special needs child, also now we are raising our 13 yr old Grandson, his Father shot and killed himself fighting with his wife right in front of my Grandson 5 yrs ago, now, my daughter is a meth addict and has been for many years and she just can’t give it up, she lives in and out of jail. So, if I change the names and make it fiction even though it really is not would I be safe writing my life as a fiction but the fact is it’s all true and if I wanted to write a true story non of my ex’s family would ever give consent or my children. How could I do this book without being sued? I get told all the time for many yeas now you should write a book even my Dr. told me today man you should write a book, I am so stressed about this life of mine and raising my Grandchildren while my youngest daughter goes off to do drugs and be with some guy that my blood pressure is extremely high for me. We wanted to retire and travel, get some fun out of life but our lives are on hold while raising Grandchildren, which is ok but, not fair to my husband or myself. Could you give me some advice on this? My life has been very hard when I married my ex, ever since my kids have sided with their father, they have never heard the truth from me nor will listen because they think I was in the wrong to leave him in the first place, but being beaten, shoved, punched, cheated on I had to run for my life, he stalked me while I worked and the nightmares I had of him I could actually feel the knife going into my chest. I want to write this so if there is another person out there that has a life like me maybe, just maybe I could help them with my experience since I survived it, broken hearted but survived. And my life will probably be on hold for awhile until our 7 yr old is grown up and by then we will probably be close to death. Help please?
Kindly
Sharon, I am sorry to hear about all your struggles. For now, I suggest that you separate the writing process from the publication process.
It sounds as if this is a book you need to write for purposes of understanding and personal growth. If that is the case, then you should write the book. The legal risks arise if you decide to publish it.
As I commented before, I can give only general legal information, not particular advice about your situation.
Defamation risk arises when all of the following are present: the people are identifiable to third parties, AND what you write about them would be considered by third parties to be statements of fact about that person (as opposed to an opinion, exaggeration, dramatization, or fiction), AND the false statements of fact harm their reputation in the community and ability to make a living. Usually the false statement involves something extreme, not just embarrassing. Truth is a defense.
For privacy claims, truth isn’t a defense, but the disclosed info must be truly private, seriously damaging, and not of public interest.
So before you decide to publish the book, you should consult with an attorney, with your manuscript in hand, to see what if anything should be changed in order to reduce your legal risks.
I am a special education teacher of 7 1/2 years. I have experienced surreal events with both students and coworkers. I want to write a book that provides insight into what its like to be a teacher, but with a comical, but truthful touch. I know though, that with education and confidentiality, I have to be prudent when writing information about real events. If I change people’s names, school names and locations would I be safe? Also, could I discuss disabilities if there is no factual way of proving its one person or another?
Angela, Sorry, but I can give only general legal information, not particular advice about your situation.
If you look at my last replies, you will see my summary of the risks. As a teacher of minors, particularly those with disabilities, you may have subject to more strict confidentiality obligations. Those would be specific to your state. So you should go further than most writers to protect the privacy of your students and their families.
Hi please help. A girl I slept with for years who’s become some what of a celebrity is doing a memoir with a major publishing house. I have heard that she plans to include me and I just know she is gonna say things about me that are not true for the sake of making her book more interesting. We haven’t had relations for years and I know am married with children. I know that she plans on not using my name but referring to me as the photographer. Although the masses will have no idea who she is referring to, people we know and that’s a lot of people will know exactly who she’s referring to. I fear she will say things for example that she thinks I’m gay or I liked go choke her which are totally not true but she thinks will be juicy because she does have some ill will toward me because I would never be with her and just slept with her. She will most likely speak about cocaine use and who knows what else. I am stressed out over it and worried that I’m just sitting a round waiting for this to be published and then what I’m gonna go get a lawyer and sue?! No thanks. Can I write a letter to her publisher saying I will sue and let them know that she plans to exaggerate and lie? Someone told me that’s torshus interference whatever that is.
Guy, This does sound stressful, particularly because you feel helpless in the situation.
I can give only general legal information, not particular advice about your situation. There may be a letter you can write, particular if you feel false statements will be made. But if you want to write such a letter, you should consult with an attorney first. You don’t want to make the situation even worse.
I’m currently writing a biography of my two brothers who abused me. All words and descriptions are accurate & true. I’m the only living member of my immediate family… Mom, Dad, Aunts, Uncles AND the two Brothers … all have died . The most recent death has been over 12 yrs. I’m writing about how bad they treated me. One more than the other was especially mean. The pranks he played and examples of his mischievous ways. He was a bully and I was always his target. Can I call him/them by first names?? Can I include their ex’s with a first name??
There isn’t anyway I could get a signed authorization because everyone is deceased. And they have been for quite awhile, the most recent is over 12 yrs. It would be a biography written by their only other sibling: Robin (me). Since all is true the content is personal to me. And there are no other relatives left to contest it…especially since during “those” times no one else was present but the two brothers & me. If you could answer those questions, I would be most appreciative. Thanks so much,
Robin, Defamation and privacy claims die with the person. If the wrongdoers are deceased, you should be just fine on the legal side.
I received an email that someone want to make a movie about my Grandfather and Grandmother from articles that appeared on the internet. Both Grandparents are deceased, and we are the grandchildren and we do not want any movie or book written about them because we want to write our Grandparent history. Also certain things in the articles on the internet are not not TRUE. What are are rights trying to stop this action of a movie.
Olene, Your rights to stop the move are very limited. No one has an exclusive copyright to factual information. You might be able to make a misappropriation of the right of publicity claim, depending on the state where your grandparents lived. You’d have to consult with an attorney in that state who specialized in these claims.
Thank you for this resource and information.. If I have fictional characters discussing their opinions of published quotes by real people (and identifying the people), is this permissible?
If you keep the actual quotes brief, you should be fine.
Hi Helen, that’s great. Thank you for replying.
I read this article in hopes that there was some means by which I could stop a “writer” from stealing cherished moments of my life for her own gain…out of the lack of creativity on her part… and, instead of finding means to prevent it, I find people brainstorming ways to continue the practice without accountability. Disgusting …
Hello,
I wrote a fictional novel where one of the characters was heavily based on a famous singer. I have had some interest in publishing and am wondering if there will be any legal ramifications if I do. The character in question has the same general look, job and ethnicity, but a different name.
Thanks!!
Piper, Basing a fictional character on a real person is a common practice. If your book is clearly a work of fiction, there is little legal risk.
I am writing a fictional novel and using real locations. I have an eccentric (at times a bully, but for the most part harmless) character that is supposed to be a descendant of a historical royal family. The character is completely fictional, but the name of the once house of —- is an actual family name. All but one actually still has this name. All other descendants do not carry this name or lineage. Wondering what the legal rule is for this particular use. Thank you.
In the US you could use the name, but I don’t know whether the UK has a different rule for royal families.
Hi, Helen. Fantastic post!
I’ve a suspense-mystery WIP that has the public figure, former Motown president, and creator of the Miracles, William “Smokey” Robinson bookending that novel. I’m using his actual name and likeness in a very positive light, everything is based on public figure fact, and he has nothing to do with my plot but that he’s friends with my fictional record label owner and president. Based on this blog post, would I still have to change Smokey’s name, even if I’m putting hin in a positive light? (With exception to my fictional character telling him to kiss his A.S.S. in the opening scene, and it’s part of the story’s subplot. What I’m asking is, even if Mr. Robinson’s likeness, musical history, and present life are all public record and he is a public figure, and I’m portraying him positively, why would I still need to change his name to something else (but the public knows) who he is)? Or is my mystery plot–without spelling out specifics–enough to qualify as a parody, could I still use his actual name without risking legal harm? Thank you for your reply in advance, and I’ll definitely follow this blog.
P.S.: As of this post, although I have emailed Mr. Robinson’s media contacts for his expressed permission to use his name, likeness, and reasonable facsimile in my novel, no reply has been received.
Legally speaking, you should be able to use his real name as long as you make it clear through context and disclaimers that your work is fiction, albeit based upon real people and real events. You should add a disclaimer such as this:
Although portions of this novel are derived from real events and some characters represent real people, this is a work of fiction. Dialogue, scenes, interactions, and settings are products of my imagination and should not be taken as statements of facts.”
Take a look at disclaimers in works similar to yours. Many are quite creative.
Great article! I spent much time reading the comments and responses. Many of my questions have been answered about writing my own narrative autobiography. Thanks!
If a individual listed in my works is alive and unwilling to sign a release, can i write about the events leading to arrest an conviction if the individual was convicted of a crime and listed in the local newspapers’ police blotter. he is currently registered on a state sexual offender website. our hometown is very small and wouldn’t take much to figure out a characters inspiration, Even if i change many things about their identity, I don’t know how much would be required to protect myself.
Aside from readily accessible public knowledge, could i tell a story about being threatened by that same person, including a quote from them if it happened in a public place? a witness saw him pull an edged weapon to threaten me and contacted law enforcement, i choose not to pursue charges as he used to be a close friend.
lastly, could i fictionalize their motivations as to why they wanted to threaten me or would that leave me open to liability? thank you for any response and the time you take responding to prior posters.
Under the circumstances you describe, I can’t image you’ll be able to get a release. Do what you can to make your character difficult to tie to the real person and keep a file of evidence supporting your statements. However, my real concern is that the person you describe will not use the court system to seek retribution. Instead he will use violence. So please be very very careful.
I wrote a short story and one of my exes have found out about the book. He says he is going to sue me if I get on the best sellers list. How can I go about making sure he cant. I did base a character in the book off him however. I changed name, physical features, occupation. Where the story takes places and none of the events ever happened in life between us.
These threats are common, particularly when people don’t understand how difficult it is to win a defamation suit. In reality, fiction writers are rarely sued, unless the target has a lot of money and/or the writer made little effort to mask the identity of those portrayed very negatively. So do what you can to mask his identity so other people don’t recognize him in your work.
Dear Helen,
The self-publisher of Part One (released 2011) and Part Two (released 2013) of my trilogy has, apparently, finally read my work! “They” have sent me a six-page email of instructions/changes/copyright rules for the manuscript of Part Three. The trilogy is in actuality a memoir of my sordid love life in Hollywood, but I’m calling it a fantasy and I’m sticking to it. Among their examples of copyright infringement is the use of Disney’s animated musical ALADDIN? The character Julie really owns the VHS tape and actually does watch it over and over while she drinks herself into a stupor and mourns the loss of her Muslim lover, who of course looks just like the little street urchin. They have also boo-hood the use of celebrity names, when in fact such interaction between Julie and the celebrity actually occurred. They have even suggested that I move the venue of the novel from Hollywood to another town!? All the “novels” are ninety-five percent memoir and absolutely true. With satire and parody, I write with love for even the cruelest character. Poor Julie is a total mess. But I won’t be suing myself for slander, I suppose. I’m shaking. Well, I certainly may be needing the media liability insurance after all, because my latest royalty check of $67.77 means that some thirty strangers are reading Parts One and Two on their tablets right now.
Which company is sending you this letter? They are acting like lawyers when it’s obvious they are not. Are you sure you want to work with them? Most self-publishing authors are better off acting as their own publisher.
I want to write either a novel or screenplay based off of a story that my mother told me. It’s about how she met this homeless guy and he told her why he was homeless, how he became homeless (a certain incident happened), he got hooked on drugs, etc. I know the main things that happened, but many, many details I would have to fictionalize. There’s no way to get a release because he was supposed to have gone home to another state and my mother has no contact with him.
If I change his name and fictionalize most of the story but keep some key details true, could this lead to a potential lawsuit?
Angela, writers commonly use someone’s life events as the spark of their story without a problem. An event is like an idea, and copyright law does not protect ideas alone. It protects the execution and articulation of that idea into a story. It’s always a good idea to change names in order to respect privacy, so I am glad to hear that is you plan. Go for it!
Hi Helen,
I became very sick after participating in a clinical drug trial; a litany of diagnosed ailments that include drug induced lupus. As it turns out, I can’t get a lawyer to take the case, due to the fact that I am not dead nor on my deathbed, even though after doing deep research on the drug, I have found published research that should have made the study sponsors more aware of the dangers in the way they conducted the study and administered the drug.
With no other recourse available to me, I’ve decide to create a website to talk about the pitfalls/dangers of being in a clinical trial. I wanted to add a section called “my story,” and talk about
my experience. I want to include names of people and companies involved. I plan on omitting any emotional, suggestive/subjective or defamatory phrases; just the facts and let the story speak for itself. Without saying it was a dangerous study, I wanted to put in links to the research I’ve found on the drug.
In this context, is it considered defamatory just by having the story on a website that puts clinical trials in a bad light? Anyway,
if I did have to go to court, I have proof of everything I plan on outlining, as well as medical records.Thank you.
Tamara, This sounds like an important story to tell and one you should be able to tell if you stick to verifiable facts. However, before you disclose names and companies, check whether you signed a non-disclosure agreement when you agreed to enter into the drug trials. Anytime someone goes after “Big Medicine” there is a chance they will send you a lawyer letter, even if they have a weak legal claim. A non-disclosure agreement would strengthen their claim.
You should consult with an attorney about your specific situation.
Very informative article! I am writing a memoir and using the given names of people I have known who are important to my story. I have not used their surname. In one instance I have mentioned my x-wife and stated that “our sex life was dreadful” and “She had little interest in making love and I think she was actually turned off by the thought of it.” Would this be considered an invasion of privacy and should I be concerned about a lawsuit by writing this?
Mike, Maybe.It would up to a judge or jury.
Writers are generally given leeway if they are telling their own stories and the information is integral to the story. And it depends whether your ex is likely to file a lawsuit calling attention to this statement. It would help if the statement was key to your story and you phrase it as an opinion or a question you ask yourself.
Hello,
I would like to preface this with the fact that I read your whole article and about half of the questions asked. However, there is a great many of them and it would take far too long to actually read them all. So if a similar question was asked, I apologize.
Now that the disclaimer is out of the way, here is my question.
I am writing a fictional book where the protagonist is a tall, athletically built man who constantly changes the color of his hair. In some contexts, it can be assumed that I am basing him off of a public figure. While I’m not, I’ve been told that the character reminded him of a professional wrestler. And the protagonist’s sister reminds him of another public figure, a singer. In my story, incest is implied but never proven. It’s one of the key aspects of their relationship and I’d really rather not exclude it if possible. In your opinion, do you think I have anything to worry about? Thank you for your time, consideration, and your answer.
To prove defamation, the wrestler and the singer would have to prove that (i) readers thought the characters were them, (ii) readers believed the incest was real, and (iii) this false statement damaged their reputations. All these elements are difficult to prove, not to mention expensive in terms of legal fees. And who wants to call that kind of attention to oneself? No guaranties here. Ridiculous lawsuits happen all the time, but less often than people fear.
Excellent advice for your readers Miss Sedwick. Glad I found your site and will purchase your guide, a must have for writers. I have penned 22 poems about 22 celebrity sports figures, all complimentary to each person. Waiting for consent is bothersome to me. How long does it take?(I’m a first time author still learning).I’m considering just taking the risk w/o permission. I understand if I profit from the poems, they may accept the compliments but still go after the money. That being said I look forward to using your guide as I have two novels,(memoir, fiction)ready to release. Thank you for your time and effort and have a great weekend.
Tom, You are welcome. Your poems, being expressive work, are unlikely to create legal problems. Expressive work is highly protected by the First Amendment.
This is such great information! My book is a collection of poetry (first person), with inserts of reflective third person prose that sets the stage for the mindset of the poem. I am the author of the poems and the prose. The context of the story describes a narcissistic husband and the emotional abuse I endured. It is about a journey of realization, understanding, and healing. It never names him, nor gives very specific examples of events. The setting are very general. It is very centered on my feelings, how he made me feel, and how I learned to rise about those feelings. I want to write it to help other women recognize the signs of this type of emotional abuse and give them encouragement to find their own inner strength. Living with a narcissist is a nightmare, and while I want him as far in my past as I can get him, I think helping others by identifying with my poetry and short prose, maybe can help them get out of the way of a destructive life. I’m not doing this to destroy him, he can be “anybody”, rather, I’ve seen too many people hurt by narcissistic behavior, and everyone around them dismissing it because the spouse isn’t “crazy” around everyone. The person that stays in a relationship with a narcissist often winds up dead. He was diagnosed by a therapist as having narcissist personality disorder. I have hours of crazy speak and life threatening phone messages. But like I said, I never name him, nor do I ever indicate anywhere that this is my life story. I have added a disclaimer to the copyright page that indicates any resemblance to persons or events is coincidental. Would this be considered enough public interest and enough expressive work to avoid being sued?
Michaela, This sounds like an important piece of work for you and for your readers.
On the legal side, I don’t see much risk of a misappropriation of the right of publicity claim, since this is an expressive work. Regarding a privacy or defamation claim, your husband would have to show that other people believed your writing contains damaging statements of fact about him, and those statements were either false or disclosed very private information. An uphill and very expensive legal battle. And would you husband want to call attention to himself this way? (Well, maybe in his case.)
The history of crazy speak and threatening phone messages makes me nervous. Your risks may be more physical than legal. Divorce just seems to bring out the worst in people, even good people. So please be careful.
Thank you for putting my mind at ease with the answers your have provided to all of us who have questions about what we write on paper or on the internet.
I’m wondering if I could be potentially liable for having a blog where I talk about the TV shows/movies an actor has been in IF I provide affiliate links to purchase those TV shows or movies. Would that be considered “using their name for commercial purposes” or using their “right of publicity”? I don’t plan on saying anything negative about the actors. I will just be mentioning the name of the actor, perhaps a little about the character he/she played and the name of the TV show/movie.
Thank you so very much!
The claim of misappropriation of a person’s right of publicity is very narrow. It applies if you use someone’s image, name, or bio in an actual advertisement or on a product like a mug or t-shirt. Courts almost always find that using someone’s name or life story as part of a larger “expressive” work, such as a novel, essay, article, film, etc., is permitted.
Thank you so much for your response!
Hello,
About 1 year ago via social media (FB and text message) I asked some people in my network to submit words of wisdom for me to share with my son for his rites of passage ceremony. The response was overwhelmingly wonderful! It was suggested by one of the wisdom contributors that I publish what I received. I have performed the rites of passage ceremony with other youth and I have requests to continue to do so and I want to provide a journal with the words of wisdom pre-printed in it. Do I need permission from everyone who provided words of wisdom initially in order to print them in the journals (which will sometimes be given away for free and other times sold). Thanks for any help you are able to provide.
Alexis, It would be prudent to get permission in order to publish what others have written. They gave the words of wisdom to you for one reason, and now you are expanding your use beyond the original purposes.
Also ask people whether the words were their own or if they shared a quote written by someone else. In that case, you may need to get permission from the original writer.
Hi, I am writing a book where I talk about an unnamed ex with depression. The fact that he had depression is fairly importan to the plot. Every character has a fake name except for myself in this story, but anyone who knows me would know exactly who I’m talking about. Could my ex have grounds for legal action?
Riley, So much depends on the facts. As I mentioned in the post, if your ex felt that the character was clearly recognizable to others and the information could be seen as private and seriously damaging to his reputation, or false and damaging, he might bring a suit assuming he had the interest and money to do so. I am not saying don’t write the book, but you should be aware of the risk and consider ways to reduce it.
also, along the same lines, if in my book (which is an entirely true story besides the lack of real names, by the way) I say something along the lines of “I heard recently from someone that Jimmy smoked weed. If that’s true…then he’s changed a lot since we were friends” would that be safe seeing as I acknowledge the fact that what I’ve heard is only hearsay, but also it is an undeniable fact that someone relayed this information to me? Or would I be in trouble because of the insinuation? Thanks again!
If you are relying on someone’s statement, courts will consider whether it was reasonable to assume the statement was true under the circumstances. If the information is damaging, considering making the character unrecognizable to readers.
The lead character in my story is a musician, who looks like and has the same first name as a musician from who I was inspired. But the character and events that happen to them in the story are not based upon the musician’s life. Would I be safe to do this or should I consider changing their name/appearance? Perhaps a dumb question, but I’d like advice on the matter. I certainly see a problem here.
Jane, Using someone’s first name and general appearance as a model for a character in a larger story is permitted. It’s done all the time.
You could have a problem IF that character does criminal, perverse or other bad acts AND people believed what you wrote was true AND the musician was identifiable to third parties AND the musician cared enough to do something about it. But fiction books rarely trigger lawsuits because all those elements are difficult to prove.
Thank you for your response.
The story the character is in has a very dark theme.. Which is similar to the stuff the real life musician sings about.. That might look bad. And the character is basically described as talk,dark,and handsome (like the actual musician) but I don’t describe any exact details.. So that’s a plus. Also, the musician has a common first name.
Just wanted to elaborate a little, just to see what you think.
And thanks again for responding, it’s very much appreciated.
Hello Mrs. Sedwick, What wonderful Advice you share! I wrote a fictional screenplay that’s based in NYC in the 1970’s. All the characters are fictional. Locations like like NYC streets are accurate. Is there a problem with specific location like a night club, Bar, and similar establishment with a completely different, made up names, where completely made up events occur?
Thank you!
Rick, No problem at all. Create away!
Thank you, just a follow up question. If a club emulates a famous landmark like studio 54 or CBGB, where Disco or Punk Rock are played but the names are different, and everything that happens within the club has no relation to events that occurred to the real place. Is that OK? I just want to make sure.
Thank you!
Rick
Good afternoon,
I am beginning a blog, and was doing some research as to what I needed to be careful of. Essentially I want to share my story with other women who may be going through the same ordeal I am. I want to connect with those who are. When I share my story how would I prevent the said person who is acting inappropriately toward me, from suing me in the process?
Everything would be based on facts. I wouldn’t belittle the person. I would tell my feelings of how I felt during the time, but leave it at that. Would simply changing the sames and characteristics enough for this?
Thanks,
Ashley
Ashley, Read through the post again and the many comments for ideas on how to reduce the risk of getting sued. Telling the truth, collecting evidence to support the truth, masking the identify of the wrongdoing, all those will reduce the risk of getting sued.
Helen, my wife is considering asking her friend who is a best selling author to co-author my wife’s journey which includes stories and sound bites of how and why she started a non-profit organization to fight women’s risk issues. She is too busy to write the book herself as she speaks a couple hundred times a year plus is president overseeing a large staff with programs in 45 countries. She wonders once the co-authored book is written and published, can she later write her own book using those same stories and sound bites? In other words, who owns her sound bites once they are published? For example, my wife often says about a 14 year old friend she grew up with in Pakistan who resisted rape and had acid poured down her throat, “the acid of her suffering burned a hole in my heart,” in the context of why she fights for social justice. If that phrase is published in a co-authored book, can she continue to write about it herself on the web, digitally or in print?
If your wife will be co-authoring a book, then she and her co-writer should discuss all of these issues, including how material in the book may be used in other work.
Absent an agreement, each co-author retains ownership in her individually created work.
Take a look at my posts about https://helensedwick.com/11-things-every-writer-should-know-about-copyrights/
and https://www.thebookdesigner.com/2014/08/21-tips-for-creating-a-successful-writing-collaboration/
Hi Helen,
My daughter’s therapist informed me that she is co-writing and planning to publish a children’s book inspired by my daughter. She is fictionalizing it by turning my daughter into an animal, but it is my daughter’s favorite animal – a very uncommon one for children to like. The character will have several neurological conditions that my daughter actually has, and her unique character traits. She also wants to use my daughter’s real first name. I am uneasy with this whole project, largely because my daughter is a child, the author is clinically treating her, and my daughter will certainly be identifiable. Do I have leverage here to ask her to scrap this project, or radically alter it to protect my daughter’s privacy?
Many thanks in advance for your advice!
Kat,
You should object to the therapist use of your daughter’s name or any of her confidential information in any way. As a therapist, she has a legal duty to maintain her patient’s confidentiality. She should not be using that confidential information in any way that identifies your daughter or that benefits the therapist, without consent of course. The therapist may be asking for your permission. Tell her clearly she does not have it.
Thank you very much for your speedy reply!
I had a very dramatic experience in high school. Who doesn’t? But not very many honor roll 16 year olds battle the onset of a lifelong illness after their first boyfriend breaks up with them, dates their best friend, while questioning their own religious beliefs. The trials I went through are somewhat unimaginable, even to those who knew me at the time. I want to write about it and get it published someday because I think it’d be uplifting, and inspiring to all youth. Many teenagers would drop out of high school, or even commit suicide if they ever experienced what I did… but I pulled through. So they can too.
However, my biggest concern is the fact that I have to write about that first boyfriend. We did get back together, which I would show in the book. What I don’t plan on showing, however, is that we later married. You see, we divorced after having been together for 6 years. I’m terrified myself if the details of our divorce were ever made public. When it comes to explaining why we divorced– there’s his side to the story which exposes my flaws, then there’s my side which exposes his. Both are very different perspectives, also very embarrassing, so I don’t plan on ever going into that. Nevertheless, I still want want to write the story of us in high school because I believe it is a powerful one. I’m just worried that my ex-husband might get offended and try to sue me. Especially if I ever wrote the sequel, where I meet my husband now (or even just mention it in an epilogue).
I guess writing about us in high school is more so of the good times (?) So I don’t know, but I do know I need to change names in the book. I’m just not going to go knock on my ex-husband’s door and ask him if I can still write the book. It’s just not happening.
SO HERE’S THE BIGGEST QUESTIONS:
Can names and looks be slightly similar in a book? Or does it have to be a drastic difference? Like, (making up names) if a character’s actual name is Devin, can I name him Gavin? Or if a character’s name was Alex, could I call her Lexi? Or should I pick names that are so far off base, there’s virtually no familiarity?
Also–the name of the high school, and location where the story takes place. Should I use the names of the actual high school, and the actual town? Or should I make up a totally fictional town and school name? You know, in case I somehow (unknowingly I guess) accidentally “defame” my old school? Or should that not be a concern? I’d rather keep the school name the same, but I can change it if you feel that’s best…?
Do you have any other advice? Anything would be MUCH appreciated! Thanks 🙂
Kaitlyn, If you are going to be writing about potentially damaging, defamatory or very private information, then the more names you change the better, legally speaking. Your goal is to make the real people and places as unrecognizable as possible. Just changing one letter is not going to be enough.
What about using an actor as description? My character looks similar to Hugh Dancy, should I just describe the ways he’s similar without using Hugh Dancy at all? Even though it’s my lead character who is making the comparison through her thoughts? I don’t say anything bad or good about him. Just that the other character looks similar to him.
There is no problem saying that a character looks like a real person. It’s not a damaging statement of fact. And you are not using the actor for advertising purposes.
The story is completely fiction. Hugh Dancy is forty years old and my character is 17/18 years old. So the only thing I would really add is how they’re similar they both have the same shape of face, but a different hair color/style. If I considered my character as looking younger would it come off as an insult, even though my character is half his age?
Helen, I just have to tell you after reading your Legal Handbook book this weekend, you have provided a wonderful service to all of us trying to learn the best way to go forward in this new self-publishing era. For those of us frustrated with having worked with a traditional publisher, your book leads us to a new understanding of what it takes to do it yourself. Thank you for sharing your expertise! You should be proud of your work and we are proud of you!!
Phil, Thank you. I love getting this feedback from writers.
I have a question that I can not find an answer to. This is hypothetical and not what my book is about, but what if you want to put together a book of “funny things kids say” or something of that nature. Can you put something in your book that an anonymous person wrote in a thread someplace online, like REDDIT for instance?
Misty, Interesting copyright question. If someone simply said a line out loud, then the line is not protected by copyright. But if they write it down, technically it is. Copyright law does not protect short phrases, but there’s no clear line to tell us when a line is long enough to be protected. If you are using a line that is longer than 15 words (my arbitrary number), then try to get permission.
I am considering writing a fictional book however the main character is the great, great, great….. Grandson of a real life person, who made history. I would like to use the quote he made on the moon (now you know who) and some of his accomplishment. The time setting of the book is the year 3037. Just wondering how to go about it and if I am looking for trouble by using his name
An intriguing premise. You may use a living or deceased person’s name and factual information, particularly historical figures. Regarding his quote, did you know there is some controversy over his exact words? In any event, the phrase has become so symbolic that I doubt anyone is claiming a copyright or other interest in it.
I have listened to the recording of the actual communication, and yes there could be an “A” before the for man, however I plan to use the one that was accepted for many years “for man” the I information is well documented and in no way critical to his person or image. He was and is a hero to me and I just want to keep people aware of his contribution to this Country. I was at the Boy Scout National Jamboree, and we watched live as he made that step and said those famous words. Thanks for your quick response to my question.
Hi, so, my mom passed away in 2009. I found that my niece was googling her name and yesterday, in one of the results, I found her name used in a book, which was published in 2011. The character was looking at death notices in the newspaper and my mom’s full name (first middle last) was mentioned, as well as my dad and what city we were living in. The only thing the author changed was her age. Is this legal or does this violate some sort of privacy? It’s been bothering me.
Alex, it’s not illegal and does not violate privacy rights if the information about your mother’s death and city were public information, such as in an obit. However, it is understandable unpleasant. There is no harm contacting the author and asking him or her to change it for future copies.
I am considering a tell-all based on actual events that led to a six-year legal battle. In the end, I share ownership of a piece of property with a person critical to the book. How can I protect myself even changing names and indentifying information if there are public records showing co-ownership of a property and the legal proceedings?
Mary, If the facts you will be writing about are in the public record, then there is less risk of a privacy or defamation claim because the information is already known and any damage to the person’s reputation has already occurred.
However, if the lawsuit was settled, look closely at your settlement agreement. It probably contained some kind of confidentiality or non-disparagement clause. Those clauses will restrict you, even if the general rules of law do not.
Hello,
I am writing a book about politics and I want to use TRUMP in the title. Can I legally use this name?
Thank you!
Ce Ce, If you go on Amazon, you’ll see there are a lot of books with Trump in the title. If you are using his name as part of a political discussion, such as How Trump Conquered American (an analysis of his rise), that should be protected. What’s not protected is using his name in a way that implies some kind of endorsement or connection, such as the ‘Trump Guide to Business Success.’
That being said, Trump is renown for being litigious. When he feels offended or it otherwise suits his agenda, he has sued people even when he has a weak case. So there will be some risk.
Hello. I have written a murder story, somewhat based on real people and events, in which I am the first person antagonist. However, the murder and the events have never actually happened. The victims in this story, at the moment are intended to act just as the real people would in the situation, with a bit more drama added in.
To what extent (besides changing names, etc.) can I base my characters off of these people? And is there a specific extent to how violent these said characters could die in this story? Thanks.
If it’s clearly fiction and no one could reasonably believe your writing about true facts and events, then there is no limit. If readers might think you are writing about true events AND the wrongdoers are are based on recognizable people, that may cross the line into defamation.
Hi,
I’m an indy filmmaker. And I wrote a scene that takes place on a bus with a confused young man who is setting out to kill a famous person. He’s spotted inspecting a gun in the back seat of the bus by another older man. The two men talk. And it’s revealed the young man is about to shoot this celebrity. I want to use the name of the actual celebrity in the film. There’s no personal reason why the young man wants to kill him beside feeling the celebrity has turned his back on his fans. So my question is can I use the actual name of this celebrity?
Thanks.
Joe, Interesting question. I am uneasy about using a real person’s name, but not because of any defamation, privacy, or publicity claim. Every day, there seem to be more well-armed crazies looking to make themselves famous by killing someone, and I’d hate to see you put the idea of a particular target into anyone’s head. And that celebrity might react badly to being named as a target as well. It’s a small risk, but if the scene will work just as well by making up a name, then I would do that.
Hello, I am writing a short story about romance while abroad. I plan on interviewing several woman and compiling their stories into one larger one. I am not using either the women or their partners names in the story, but would not be reaching out to the . It would purely be the facts on how they met and a time they spent together and then the rest would be the emotion the women feel towards them. Would I be stepping in difficult areas since some could be intimate details just depending on how the women feel about sharing? None of the stories in any way would be full of reveling details or putting the partners in a negative light, I’m just not sure there the line would be to not cross. Thank you!
The line would be revealing private information about an identifiable person that is potentially damaging or extremely embarrassing. Since some of these individuals may be living abroad, you need to consider foreign law as well, which is generally less favorable to writers. So if you are basing your characters on real people and real events, and the information might be private and damaging, make sure the real people are not identifiable in your stories.
It would also be prudent to get a release from your interviewers. Here’s a example:
THIS IS A SAMPLE RELEASE FORM IF YOU ARE INTERVIEWING SOMEONE FOR YOUR WORK. EDIT IT TO FIT YOUR NEEDS.
RELEASE
This Release is entered into by and between _____________ (Author) and the interviewee listed below (I, me) as of the date opposite my name below.
I understand that Author is [researching and writing a novel/memoir/non-fiction book/book /article/blog post/publication] [producing a video/podcast or series of video/podcasts] which may be based in whole or in part upon interview(s), information, and printed materials provided by me and that the interview(s) and materials as well as my name, likeness, image, voice, and performance will be recorded and made a part of one or more publications/video/podcasts and related promotional material (“Products”).
I hereby grant to Author, its affiliates, publishers, licensees, successors, and assigns, the right and permission to record, use, publish, distribute, modify, translate, blog, stream live, broadcast, offer for sale or download, or otherwise commercially exploit and distribute any interviews, information and materials provided by me, either alone or combined with other interviews, information and materials. Such right and permission includes, but is not limited to, my name, voice, photograph, likeness, screen shots, biographical information, and handouts of any materials based upon or derived from my interviews, information and materials. This grant includes without limitation the right to edit, mix, duplicate, and to use or re-use the interviews in whole or part as Author may elect. Author shall have complete ownership of my interviews including copyright interests, and I acknowledge that I have no interest or ownership in the Products or their copyright. I understand and agree that I have no right of review, inspection, or approval over any use, sale, distribution, marketing, alteration, broadcast, or use of my interviews, information and materials in any Products.
I hereby warrant and represent that I have the right to enter into this Release and to grant the rights granted to Author herein. I agree that I will not violated the rights of any third parties, including but not limited to copyrights, rights of privacy, trade secrets, non-disclosure agreements, publishing and option rights, and that in the event of any breach of any of these warranties, that I will defend, hold harmless and indemnify Author against any such claims. This Release shall be binding upon me and my heirs, legal representatives, and assigns and is subject to the laws of the State of California.
Signature Date:
Name Printed
ps – it will be clear that the young man is delusional – the writer in this case me – is not trying to make the case that this particular celebrity has done any such thing – ex – turn his back on his fans. it will also be clear that the young man winds up not carrying out his act.
I posted a public announcement on a social media wall telling the customers to be careful not to trust easily to someone who worked in my club who’s purpose is just to take money from customers. I didn’t mention any names.
Would i be sued for libels ?
It depends whether that person is identifiable (whether or not you used a real name) and the information is a false statement of fact. It would be better to make your statement as an opinion, such as “I do not trust ____.”
I am writing my memoir as an anorexic, bi-polar gal. I document my journey to health after a massive trauma fueled by my eating disorder and my non-diagnosed bi-polar struggle of two decades. I spent two stints in rehab. My manuscript does not identify anyone by their true name. There is no context to geographic location. In addition, I am using a pen name.
Does this garner sufficient legal protection in regard to liability?
Sarah, Good for you. It sounds like you are taking the necessary steps to mask the identity of the real players. These matters are always judged in hindsight, however, so I cannot guarantee that one one will feel identifiable and defamed. That would be up to a judge or jury, should it ever get that far.
Yes the whole idea is rather reprehensible to me.
But I know these people are out there.
I’m a huge fan of this particular artist – and they’re also very litigious from what I read about this person.
He/she (trying to not reveal their gender) has stopped many a biography being written about them.
But when an idea splashes into your head shaking things up it’s hard not to run with it.
God forbid the film ever put the seed into someone’s head.
Hmmmm.
Thanks for your feedback!
Thank you for your reply. Yes. Everything is heavily masked to the nth degree. I appreciate your input.
This will be my First Book..I want to write my Dads Life story through my eyes, when i was a teenager in the late 60s and 70s.. my Dad was a Alcoholic!! artist,Muralist,writer,songwriter,Musician,Involved with Chicano Movement,Cesar Chavez farm workers He Organized a March then wrote a song for him…my Dad is sick now he’s 83 .. the people in the Community called him the Diamond in the Raw Historical Muralist of Boyle Heights…which is in southern California..in the Hood!..Interesting,he changed many life’s,full Action,he was part of making many changes that many people have No idea!!..he was joker,but he was abuser and neglected us..so what would be my options for me not to get sued in writing my Dad’s life story..through my eyes..
Ruby, As the post suggests, verify the truth and be clear when you are guessing or stating an opinion.
Many writers find that if they work hard to tell the story truthfully, compassionately, fairly, and with understanding, family members thank them for making sense of their lives.
Hi Helen, great article, very helpful. I read it and most of the comments too, to see if I could find an answer to my question, so I’m sorry if the answer is already out there – I may just need a little more clarity. In brief, I’m recently free from an emotionally abusive relationship that lasted 10 years. I was in denial until the sh** hit the fan and through helpful resources I learned that I was emotionally and psychologically abused. As a writer, I want to use my story to help others who are also waking up to the truth – but for now, I’m just doing so in blog posts. Before I post one I’ve been working on for days, I wanted to be sure it won’t come back to haunt me. I assumed that leaving his name out of it would be enough, but I wanted to be certain and that’s how I found your post. We weren’t married so we don’t share a name. I don’t use his name in the blog. I only refer to him as my former intimate partner (and “abuser” and “narcissist”) And I loosely share some of the situations that opened my eyes – like how he set up political camps with his children, etc. (and I don’t use their names either). Can you shed some light for me?
Gwen, I can only repeat what I say in my post. Avoid labels and instead describe how these events felt to you. If you are stating facts, be comfortable that you can verify them. When you verify information, be aware that memories are subjective and change over time, and certainly he remembers these events differently than you do. So third party verification is best.
Also, make sure you focus your writing on how to help others and resist the temptation to get even.
If all else fails, change enough identifying information that your ex is not identifiable. That usually requires more than simply changing the name.
Hello everyone. I’m currently writing a fiction. And I’m kinda wondering if this is safe. So, I’m using a real city. Then a real event. For ex, schoenfeld competition. Everything about the event is real. Except one, I put my character as the winner of that competition at a certain year, which is of course false. And then another issue. How about using a certain real organization such as university, but then adding another fake attributes there. Such as creating a fake lecturer. Or fake major events. Or even creating major which doesn’t exist in that university. Will these be problems? Or I’d better create a fake competition and a fake university from the beginning. Anyway, I still want to use that real city. ^^ Can anyone provide suggestions? Thanks.
Hi there! Thank you for the information! I am writing a book (under a pen name) about trying to meet my favorite NFL athlete. The book is in first-person. I have never had any contact with this person and have no plans to fabricate any conversations between us. I have sent a couple of messages via Snapchat (no response though) and I have had email correspondence with his manager (I used my pen name for both). Do I need to get permission to use his name (or his manager’s name) in my book? And do I need to get permission to use his last name in the title of my book? Thank you for your time!
As far as the contents of the book, if what you say is neutral and not a damaging and false statement of fact, and if you make it clear your book is not endorsed by or related to the NFL star, you should be fine. Putting his name on the cover is riskier, since he may not like you piggy-backing on his fame.
I read the whole post and I’m still unsure of the best way to go ahead, so I’ll ask: I’m studying about the famous Hollywood Canteen, and I decided to write a novelization based on the real history. But, of course, many famous people were involved, though every one of them are dead by now, and the Canteen itself closed doors in 1945. Still, I’m afraid I’ll be infringing somebody’s right or something. What should I do?
Gabriel, Fictionalized tellings of real events is commonly done. And using real people and places, with or without changing names. For instance, The Paris Wife. Take a look at that as an example.
WOW Helen, 20 months later and the thread is still going strong!
I am still getting click-throughs to the links in my comment.
Interesting since then how many folks want to use TRUMP as a subject.
I find him hard enough to ignore already.
WOW Helen, 20 months later and the thread is still going strong!
I am still getting click-throughs to the links in my comment.
Interesting since then how many folks want to use TRUMP as a subject.
I find him hard enough to ignore already.
I’m trying to write my autobiography, could i get sued for speaking religious truth or something about a certain group of people within my autobiography, considering for example: would i get sued for saying people can overcome any kinds of temptations including gender confusion(speaking of transgender people here.) because I went through the same exact confusion and i have photograph proof of it as well. because that at one point in my life i thought i was transgender but once i realized i was being used by the devil and asked god to help me overcome the confusion, and i fought and i fought the devil for nearly 7 to 8 to possibly 12 yrs before i overcame the devils confusion of being born the wrong gender of course the gender confusion technically didn’t happen until i was 16 yrs old in 2007,and i was cross-dressing on and off for 3 yrs when i knew i could get away with it, and yes i had experienced with slight crossdressing when i was 10 yrs old as well.but got caught and decided not to do it for another 4 to 5 yrs when i knew i would be able to be home alone. and 2 yrs after i re-stared crossdressing but in the middle of those 2 yrs i discovered the christian kids tv show called Colby’s Clubhouse. and in 2006, i discovered the show one saturday morning, and i found out that i needed God. but I didn’t fully accept Jesus Christ as my lord and savior and so i half-accepted him, which technically means to them not at all. and while i was watching those show i hardly ever crossdressed while watching those show, but when i did crossdress, i felt guilty when i watching those shows very bad. so it went off air from TBN, in 2007 and I started crossdressing again. and also in 2007(that is when i watch the 20/20 news cast about the transgender children and after that) I wondered what made them think like that and wondered what they were going through and wondered if i was one of them as well and well, let’s see and I wanted to stop crossdressing and but couldn’t because i knew it was a sin and didn’t want to go to hell, so i also asked god, if it was alright for me to transition to the opposite sex after a year or two after I saw that 20/20 new aired. and he gave me an ultimatum promise me this, if you are still crossdressing after age 25 yrs old then i’ll allow you to transition into the opposite sex. and luckily and then in 2012, I miraculously stopped crossdressing in April or Aug of 2012. and in Nov. of 2012, I fully accepted Jesus Christ as my Lord and Savior and asked him to help me to overcome the devil’s temptations and the confusion of being born the wrong gender and forgive me for all of my sins(past, present and future) and asked him to come into my heart and into my life and be my forever everlasting friend and he helped me overcome that confusion and the devil’s temptations and he still is my friend too. And I made fool’s vow, and since I made a fool’s vow and you will always have to keep it unless you allow god to punish you while you are living and I allowed him to punish me before i got baptized so i wouldn’t have fulfill that fool’s vow. and the punishment he put on me was an extreme bad abscess on my underarm or armpit how bad was the abscess, well the abscess was so bad that well it left a bruise for quite a well and had to take anti-biotics for it as well,and left a scar that at first felt like a tiny bullet hole in my muscles. and hopefully now in 2016 its shorter hopefully. And On Sunday, April 28, 2013 I was baptized PERSONAL INFORMATION DELETED.
Would I get sued for this part of my autobiography yes or no? because this is 100% inexplicably and unequivocally true.
Mr. Anonymous, If you look at my post, you will see that it’s about how to write about people OTHER THAN YOURSELF. If you want to write about yourself and your relationship with God, that’s between you and God and not a legal matter.