Legal Question-Memoir

Cinzia8 · Nov 16, 2009

I could use some sage advice. I've written a memoir short story about a former student of mine who ran with a gang. The student's unusual name plays an important part in this true story. Since it's a memoir, I've used his true name just changed the name of the high school, and I write under a pen name as well.

I don't think this story will ever find extreme public fame, but I just want to be sure I'm okay. This story has been printed in a different high school faculty literary magazine, which sits with a heap of magazines on a coffee table in the waiting room of the administration building <g>, but I'm thinking of entering it in a contest.

Any thoughts from seasoned Memoir writers?

Thanks (feel free to private message as well)

suki · Nov 16, 2009

Cinzia8 said:
I could use some sage advice. I've written a memoir short story about a former student of mine who ran with a gang. The student's unusual name plays an important part in this true story. Since it's a memoir, I've used his true name just changed the name of the high school, and I write under a pen name as well.

I don't think this story will ever find extreme public fame, but I just want to be sure I'm okay. This story has been printed in a high school faculty literary magazine, which sits with a heap of magazines on a coffee table in the waiting room of the administration building <g>, but I'm thinking of entering it in a contest.

Any thoughts from seasoned Memoir writers?

Thanks (feel free to private message as well)

Honestly? I'd suggest you get legal advice, but if it were me, and short of an attorney's opinion, I wouldn't use another person's name without their permission in such a context, and especially not a student you met or learned of during the course of your employment as a teacher.

Others may say this person is newsworthy, and therefore it is permissable, but you will be implicating him in criminal and embarassing conduct, and that could have repercussions.

I'd get some legal advice before publishing (or even republishing) anything using his name or describing him in a way he would be recognizable, without his or his legal guardian's permission (and if he is still a minor I think you would need the guardian's permission), UNLESS he has been convicted of a crime and the information is in the public court documents.

good luck.

~suki

backslashbaby · Nov 16, 2009

I agree. Unless he is actually famous, I'd choose a similar name but not use his real one. I don't know the legalities on it.

the addster · Nov 16, 2009

In my writing I often have to bring up specific persons, many of them either children,or children when the event were happening. We do not use names without written consent from them and/or legal guardians. Both for legal and ethical reasons.

Shakesbear · Nov 16, 2009

Cinzia8 said:
I could use some sage advice. I've written a memoir short story about a former student of mine who ran with a gang. The student's unusual name plays an important part in this true story. Since it's a memoir, I've used his true name just changed the name of the high school, and I write under a pen name as well.

I don't think this story will ever find extreme public fame, but I just want to be sure I'm okay. This story has been printed in a different high school faculty literary magazine, which sits with a heap of magazines on a coffee table in the waiting room of the administration building <g>, but I'm thinking of entering it in a contest.

Any thoughts from seasoned Memoir writers?

Thanks (feel free to private message as well)

Unless you have the students written permission using the students real name might be seen as a breach of confidence and unprofessional.

Canotila · Nov 16, 2009

the addster said:
In my writing I often have to bring up specific persons, many of them either children,or children when the event were happening. We do not use names without written consent from them and/or legal guardians. Both for legal and ethical reasons.

This is my experience. When I worked in public education, we weren't allowed to release any student names or photos to anybody aside from their legal guardian, without permission of said guardian. If I tell any anecdotal stories about my students, I have to omit or change their names. If possible I don't even give away their gender, because of the legal crap that could fly in my face as a result.

When I worked in a private school we weren't even allowed to bring in a specialist to assess a child we suspected had a developmental disability, because his parents wouldn't consent to allow us to release any information about his behavior in class to the specialist, or allow the specialist to come in and observe the child.

Steam&Ink · Nov 16, 2009

** If in doubt, seek actual legal advice! I have a law degree but i'm not a solicitor yet

My thoughts on this:

If you don't have your student's (written and signed) permission, don't publish with his real name.

If he decided to take issue with it, let's say in a libel/defamation suit, he would have to show two things:
1. That the information given would reduce his social standing in public. That's going to be fairly easy, if you think about all the aspects you may have written about this student which could be considered defamatory (even "running with gangs" can be considered defamatory, so you're on the back foot right from the outset).
2. That enough information is given that he would be reasonably likely to be recognised by the descritpion. (As you have used his REAL, "unusual" name, and described all sorts of his life details, I should say that it would be pretty easy to show this!)

On the other hand, libel/defamation (at least in my common law country) is only an issue if it's NOT TRUE. If everything you wrote is true, it could be a defence. However, "truth" would be for you to prove as a defence to a defamation case. I guess you'd rather it didn't come to that.

I think if you're in the US, the exception to this is political speech - but if this guy's not a politician now, that's not much help

So in conclusion, I would think you ought to change the name, sorry. Try to think of one which can still be unusual enough that you can still have a running theme about it.

suki · Nov 16, 2009

steampunkette said:
** If in doubt, seek actual legal advice! I have a law degree but i'm not a solicitor yet

My thoughts on this:

If you don't have your student's (written and signed) permission, don't publish with his real name.

If he decided to take issue with it, let's say in a libel/defamation suit, he would have to show two things:
1. That the information given would reduce his social standing in public. That's going to be fairly easy, if you think about all the aspects you may have written about this student which could be considered defamatory (even "running with gangs" can be considered defamatory, so you're on the back foot right from the outset).
2. That enough information is given that he would be reasonably likely to be recognised by the descritpion. (As you have used his REAL, "unusual" name, and described all sorts of his life details, I should say that it would be pretty easy to show this!)

On the other hand, libel/defamation (at least in my common law country) is only an issue if it's NOT TRUE. If everything you wrote is true, it could be a defence. However, "truth" would be for you to prove as a defence to a defamation case. I guess you'd rather it didn't come to that.

I think if you're in the US, the exception to this is political speech - but if this guy's not a politician now, that's not much help

So in conclusion, I would think you ought to change the name, sorry. Try to think of one which can still be unusual enough that you can still have a running theme about it.

Actually, there may be additional concerns in this instance, beyond a simple libel/slander analysis.

First, In many states you can not use a non-famous person's likeness or name for commercial purposes without paying them - that may include selling/publishing a story that contains their likeness or name, and I'd think the contest would count.

But the bigger issue here is the relationship and position of trust that the OP had as a teacher. that position comes with it's own requirements and limitations, beyond simple libel/slander or commercial use legal provisions, and for many of the reasons alluded to above.

The fact that the person as issue is or was a minor, and the conduct is illegal, coupled with the OP's position as a teacher when the information was obtained, makes this far from a simple legal question.

~suki

ChristineR · Nov 16, 2009

You wrote about a minor student, and included information about him that you acquired as part of your professional duties, and you used his real name?

I don't know if it's legal. It would depend on where you live and exactly how much information you disclosed about him and the extent to which you used his school records. Despite what steampunkette says, it's not just a question of libel.

If your superiors find out, you'll be fired. I really wish I could be more positive, but I think you must change the name.

Steam&Ink · Nov 16, 2009

Despite what steampunkette says, it's not just a question of libel.

I didn't say they were the only issues, just that they were the issues I could shed light on.

ChristineR · Nov 16, 2009

steampunkette said:
I didn't say they were the only issues, just that they were the issues I could shed light on.

Sorry, I didn't mean to imply that you were saying that.

scope · Nov 16, 2009

A big absolute ditto to all the above. Why look for very possible trouble. I would want written consent and permission from the individual, and a literary attorney knows the proper way to draw up such an agreement and/or give you other proper advice.

Cinzia8 · Nov 16, 2009

Thanks everyone. The short story actually points to his kindness and humanity and is about a gift he gave me as my "Secret Santa" (the class wanted me included on the grab bag). I do mention that I knew he was a gang member, but the story is more about what I learned from him and the class that year. However, I wrote you all because i was being bothered by my inner voice about his name. I can't change his first name because it really plays a part, but I can change his last name but I need the first consonant. If this sounds confusing it's only because I had a nickname for him that he loved that played well with his last name. How much do you think I have to change it? Ex. say his last name was Martin. Would something like Marlin or Marvin be all right or would that be too close? Imagine his name was Bello Martin and my nickname for him was Mighty and I called him Mighty Martin (this is best I can think of right now <g>). Could I change it to Bello Marvin or Bello Marlin and be okay?

Steam&Ink · Nov 16, 2009

Hmm... that's really hard to answer without knowing the name.

You know, the easiest way around this would be to contact him (if he's now a legal adult) and ask his permission to use his story. He will likely want to read it first, but if he gives written, legal, documented permission (as an adult), then you are covering your back (for this particular story).

Chances are, he may still ask you to change the name, but he might not require you to change it drastically.

Is there a specific reason you don't want to contact him?

Cinzia8 · Nov 17, 2009

I left that school in 2000 and I googled him and all I found is that he graduated in 2003. Which I was happy to see. I think it might be difficult to track him down. I think that I will just change the last name. The high school name has been changed and I use a pen name and even my legal name is different from when I was at his school. It is a favorable story, so I think I might change his last name and be done. This is for a contest and it might not even win. After all this is an embellished anecdote and the chances of him ever reading it are slim and then with a name change figuring out it's him is also slim. However, the advice here has been very valuable. Thanks, everyone.

suki · Nov 17, 2009

Cinzia8 said:
I left that school in 2000 and I googled him and all I found is that he graduated in 2003. Which I was happy to see. I think it might be difficult to track him down. I think that I will just change the last name. The high school name has been changed and I use a pen name and even my legal name is different from when I was at his school. It is a favorable story, so I think I might change his last name and be done. This is for a contest and it might not even win. After all this is an embellished anecdote and the chances of him ever reading it are slim and then with a name change figuring out it's him is also slim. However, the advice here has been very valuable. Thanks, everyone.

If there is any way he could be identified from his first name or even the description, it's still an issue. The issue is whether he could be identified. So, if he has an unusual first name or could be recognized by the nickname, then both would still be an issue.

I urge you to get some legal advice, especially from an attorney who specializes in education law (more than intellectual property) since they know the special limitations teachers are under, and can research name usage re slander/liable and re using someone else's likeness for commercial purposes without compensation or permission.

Even if the story is overall positive, you are still using someone else's likeness, who was a minor when you interacted with him as his teacher, without his permission. And you are disclosing his gang membership which isn't positive.

I can see the name makes the story that much better in your opinion, but I would sugges that it's not worth the risk to use it without proper legal advice.

~suki

JulieHowe · Nov 17, 2009

I second the recommendation that you consult a lawyer. Or you can do a google search for Handel on the Law. Bill Handel is a California lawyer who hosts a syndicated call-in radio show. Call up and ask his opinion.

Legal Question-Memoir

Cinzia8

suki

Opinionated

backslashbaby

*

the addster

Shakesbear

knows a hawk from a handsaw

Canotila

Sever your leg please.

Steam&Ink

sekrit superhero

suki

Opinionated

ChristineR

What happened?

Steam&Ink

sekrit superhero

ChristineR

What happened?

scope

Commonsensical Maverick

Cinzia8

Steam&Ink

sekrit superhero

Cinzia8

suki

Opinionated

JulieHowe

Spent the night with Jack Daniels

Legal Question-Memoir

Opinionated

~~~~*~~~~

knows a hawk from a handsaw

Sever your leg please.

sekrit superhero

Opinionated

What happened?

sekrit superhero

What happened?

Commonsensical Maverick

sekrit superhero

Opinionated

Spent the night with Jack Daniels

*