change of names?

[RoseWrites]

When composing a nonfiction story (in my case a memoir), what do you do about character names in the story? Do you change the actual names to avoid liability and such, or do you have to use actual names? does that take away from the whole nonfiction aspect?

[Cathy C]

Well, that sort of depends on what you're planning to write about them, Rose. I'm not an attorney, but have asked MY attorney about this very subject and he indicated that there are four issues that you need to be concerned with when dealing with real people in books:

A. Invasion of privacy;

B. Defamation/slander;

C. Copyright infringement; and

D. Unauthorized use of name and likeness.

Let’s first take the case in which you accurately recount events that happened in the life of the person in question. In this case, first of all, you would not be invading privacy because, assuming the person is known to you and you depict events that are publicly known, then no privacy right attaches. If the person is not a public figure then you need to be a little more careful because they would still maintain some control over those aspects of their life and the events of their life that were not made public. Even if the person is dead, there could be a privacy claim, since there remains some commercial value in exploiting public awareness of the person’s name or likeness.

Secondly, if the matters that you recount are truthful, then there is little likelihood of exposure to a defamation claim because by definition a statement cannot be defamatory if it is true. The defamation claims may or may not expire on death of the real person.

Thirdly, with regard to infringement, you need to make sure that anything you write about the person is an original work of authorship and not copied from some other source.

Now, if you're writing imagined "what might have been" situations with a real person that you interacted with on a different subject -- DON'T DO IT! It's more pain than it's worth. There have been FAR too many lawsuits for a variety of things.

The same goes with famous people. For example, if you happened to have lived in Waco, Texas when the whole David Koresch thing was happening and you said hi in the cafe, but had no other interaction, it would be a very bad idea to include anything that didn't actually happen in the book -- even if the PERSON is real and you REALLY said hi.

At a minimum, you will want to have an attorney talk to you about the final product to see if there's anything in it that the other person might have a claim about.

Whether it becomes fiction by changing their names depends on your handling of it. You can make a disclaimer at the front like: names were changed to protect the guilty (:D) or some such. I don't think it would change the classification of the novel. But when I inserted a totally fictional character into my real life account of a railroad race, it DID turn it from non-fiction to "historical fiction." No big deal to me either way. It was the publisher's choice to avoid their own issues with estates and historical societies and the like.
Does that help any?

[WriteRead]

You think that if you change names in a memoir, not less, then it won't be recognizable and so you'll be able to avoid litigation? I think that the personae involved, if they'll be exposed to the bk, will recognize themselves instantly.
In a memoir you'll stick to facts, places and dates, right? At least much more than in a fiction bk based on real life.

I know that Hemingway did so in "The sun also rises" and D. H. Lawrence, too, as a habit in his bks, esp in "Women in love", but in others, too. Even so, both provoked anger and frustration among their friends and acquaintances who recognized themselves in the bks w/o doubt, and theirs were fiction bks.

I, the little, write something similar to yours, but as a fiction bk. I changed ALL names, even places names to the pt where there's no such place, esp b/c it's set in Israel, a very tiny country where everyone, almost, is a friend of another's friend, or at least knows a friend.

Again, think about the possibility that the characters will recognize themselves even w a change of names.

Dan

[RoseWrites]

Well, that sort of depends on what you're planning to write about them, Rose. I'm not an attorney, but have asked MY attorney about this very subject and he indicated that there are four issues that you need to be concerned with when dealing with real people in books:

A. Invasion of privacy;

B. Defamation/slander;

C. Copyright infringement; and

D. Unauthorized use of name and likeness.

Let’s first take the case in which you accurately recount events that happened in the life of the person in question. In this case, first of all, you would not be invading privacy because, assuming the person is known to you and you depict events that are publicly known, then no privacy right attaches. If the person is not a public figure then you need to be a little more careful because they would still maintain some control over those aspects of their life and the events of their life that were not made public. Even if the person is dead, there could be a privacy claim, since there remains some commercial value in exploiting public awareness of the person’s name or likeness.

Secondly, if the matters that you recount are truthful, then there is little likelihood of exposure to a defamation claim because by definition a statement cannot be defamatory if it is true. The defamation claims may or may not expire on death of the real person.

Thirdly, with regard to infringement, you need to make sure that anything you write about the person is an original work of authorship and not copied from some other source.

Now, if you're writing imagined "what might have been" situations with a real person that you interacted with on a different subject -- DON'T DO IT! It's more pain than it's worth. There have been FAR too many lawsuits for a variety of things.

The same goes with famous people. For example, if you happened to have lived in Waco, Texas when the whole David Koresch thing was happening and you said hi in the cafe, but had no other interaction, it would be a very bad idea to include anything that didn't actually happen in the book -- even if the PERSON is real and you REALLY said hi.

At a minimum, you will want to have an attorney talk to you about the final product to see if there's anything in it that the other person might have a claim about.

Whether it becomes fiction by changing their names depends on your handling of it. You can make a disclaimer at the front like: names were changed to protect the guilty (:D) or some such. I don't think it would change the classification of the novel. But when I inserted a totally fictional character into my real life account of a railroad race, it DID turn it from non-fiction to "historical fiction." No big deal to me either way. It was the publisher's choice to avoid their own issues with estates and historical societies and the like.
Does that help any?
that's such a tremendous help, thanks! Since mine is a memoir, it deals with specific events putting me as the main character, and the other main character deceased. I do like the idea of a disclaimer as well. The story I have is very interesting and the writing is turning out well, however, i'm kind of "iffy" about putting my name on the book and as the main character. I know that's the idea of a memoir and I want to tell the story, but I wanted to hide behind another name as well. Maybe changing it into fiction would cause a lot less problems, lol.

[WriteRead]

All you said, Cathy, applies to using real names in F and NF, as well, or what?

If I use diff names but real facts or even embellishments and what never happened, then I'm in trouble?

I didn't quite get it and since it's interesting, I'd like to know better.

Dan

[Cathy C]

Well that sort of depends. If it's a contemporary book (i.e., set in the here and now,) and someone will RECOGNIZE the events and/or recognize themself and have a dispute with the embellishments you've added, then you might have a problem, even if you've changed the names.


History is another issue. Our first book was about a real event, using real people mixed with fictional people. Now, if I know that such and such person actually DID something on June 15, 1887, then I can't embellish and say he was somewhere else, or DID something else. But if history only reports that they were at the town square for a ribbon cutting at one o'clock, then HOW the character got there, who he met along the way and what he did afterward -- those are all up for grabs.

But the goal of any novel purporting to be accurate is to BE accurate. It's much better to research until you're blue in the face and can at least back up what you've put in the book with something you've found. We could still get sued by a descendant of one of the real (long dead) people we've portrayed for stating something wrong. But if we made reasonable effort and have PROOF of our effort, then we've got some defense. Mind you, that's SOME DEFENSE -- it's not a "get out of jail free" card.

It's much easier to write fiction AS fiction. Non-fiction memoirs -- well, those are just harder, and it's always better to have the involved parties actively participate in the project. ASK their recollection of the event, FIND reports, letters, e-mails, etc. that state facts in black and white.

If it's obvious to a court that you've tried your best to be careful, they won't be nearly as hard on you in the event of a lawsuit.

[WriteRead]

Thank you for your re. Good and info'ive as usual.

I feel I need to elaborate a bit on what I'm doing, so my q will be in context.

I write a bk based on a real exp I had during the Gulf War I in Isr.

I changed all names of people and places, but I retained the facts, almost on a one to one ratio - personal data, descriptions, etc..

I'm sure some people may recognize themselves in the bk. Now, here's an anecdotical catch: the bk is written in Eng, and people there won't read an original if there's a translation of the bk, so unless I translate it, there are small chances that it will be read by the pertinent personae.

Am I in trouble?

Now, lest I'll be considered a complete block, I must say that I am and was aware of the potential problem, but I didn't and still don't think it can be really serious. Now, if I'm mistaken, then I'm a silly block, indeed.

In the back of my mind, I intend to ask the people involved if they agree to the presentation of some personal data.

To do that and if I do, should I ask for a written agreement, and maybe some formal form to be completed or something?

Seems like I ask obvious q's but still, it's serious matter after all.

Thanks,

Dan

[Cathy C]

Everything published is a serious matter to someone! I think you might be making a mistake presuming that the general populace in Israel, Kuwait and Iraq can't read English. Prior to Saddam's regime, the area had one of the highest literacy rates in the world, right up there with Sweden's, and MOST are multi-lingual.


That said, this is definitely an area that you might want to discuss your plan with an entertainment attorney or in the Ask the Editor slot on the AW board. Since the time period wasn't that long ago, it's likely that MOST of the involved parties are still alive. If you've embellished, either by adding to your contribution, lessening theirs, or adding in events that didn't occur, it might well be a problem.

But that's for later. Right now, I'd suggest that you write your book, and mark in the manuscript where you KNOW you've deviated from reality (so you'll remember if it takes a year or two to finish the book and find an agent/publisher.) Use a specific symbol on your keyboard to mark it, like the # or ~. They aren't likely to be used in normal writing. Then you can use the search function later to find the spots that might be a concern.

[WriteRead]

Thank you, Cathy!

I didn't say they can't read Eng, I said if they "won't read an original if there's a translation of the bk, so unless I translate it, there are small chances that it will be read by the pertinent personae". Maybe I made a mistake w "small chances", though and the chances aren't that small, but still, they'll much prefer a Hebrew written bk by a large margin, it's their language.

Dan

[DonnaReed]

I'm writing memoir and definitely changing names.


I can't imagine that some folks somewhere won't be able to speculate and probably figure out who is who, in some instances or another, but that's not my problem.

I'm speaking of real events making up fictional names.

I'm careful about what I say about my relatives, ex-husband, won't say much of anything on them.

My mother told me to write whatever I like, nobody's perfect and she has no problem being revealed as "human"; but then, there's nothing seriously negative though i.e., abuse or neglect.

I couldn't have prayed for a better mother.

Overall, my life is the focus though, I'm not looking to tell anybody else's story.