Liability Issues - non-fiction or fiction memoir?

[eldragon]

I'm going to self publish a book based on true events involving about 65 different people. Non of these people are famous, but a few are fairly well off.

Anyway, I have changed their names and positions and have changed anything that I felt would make it "obvious," who I was referring to, but these people will be known to at least 100 or more readers, just by their description.

So, lets say someone reads this book and sees something in it that they assume is about them. The book does not put them in a favorable light. There is nothing illegal mentioned, or too bad, but still.


And then, of course, vague storylines have been slightly embellished in order to make the story flow.

Plus these stories are from my point of view, which is probably different than somebody else's/

Also, there is dialect throughout the book. Obviously, I didn't record these conversations as they happened, they are ad-libbed.


Any advice?

[judithmoose]

I'm about to go through this with one of my authors. He's written a biographical manuscript that is extremely damaging to an international television entity and actually had a gag order slapped on him to prevent the book from being released. We're going to end up changing the names of those involved and locations of events and almost fictionalizing it to be able to produce his story. Anyone reading it will immediately think of the same scandal but no one will be able to actually point a finger.

The easiest way to get around liability if someone recognizes themselves is to have a disclaimer at the front of the book in the credits listing to the effect of:

"What you are reading is based on the real-life experiences of the author. Any reference or description relating to anyone living or dead is a coinsidence only. The names of those involved have been changed to protect their actual identity."

[eldragon]

Thanks, Judith!


BTW ..........I'm just going through the last several chapters (out of 60) and touching up some things.......................


then you'll definitely hear from me!

[judithmoose]

Sounds good Pam... If the rest of them are like the two you sent me, I'm looking forward to reading the rest.

[aka eraser]

I'm hoping Jaws will weigh in on this one. I don't believe Judith's suggested disclaimer will prevent anyone from being sued if some party feels maligned. I'd very strongly suggest you retain a lawyer well versed in publishing law before going to print.

[Lauri B]

Given the enormous amount of erroneous information on Judith Moose's web site, I heartily second eraser's suggestion.

[Yeshanu]

Pam,

I'm really leery about the idea of you changing the names of people in order to protect yourself.

1) It probably won't work, if anyone can figure out who you're referring to from the context.

2) Using the disclaimer as Judith suggested (Any reference or description relating to anyone living or dead is a coinsidence only.) is out-and-out lying on your part. You wrote that book about those people. That's deliberate, not a coincidence. If someone is telling you to lie in order to get a book published,

Get out of there fast!!!

If you really believe in this book, go with Frank's advice and consult a lawyer well-versed in publishing law.

Good luck!

[Tish Davidson]

Either change enough that it truly becomes fiction or consult an attorney.

[eldragon]

Pam,

I'm really leery about the idea of you changing the names of people in order to protect yourself.

1) It probably won't work, if anyone can figure out who you're referring to from the context.

2) Using the disclaimer as Judith suggested (Any reference or description relating to anyone living or dead is a coinsidence only.) is out-and-out lying on your part. You wrote that book about those people. That's deliberate, not a coincidence. If someone is telling you to lie in order to get a book published,

Get out of there fast!!!


I'm confused.

Nobody has told me to lie to get published. I never used the real names of people in my book.

I wrote a book about ten years in a particular job, and there are approximately 60 other people I reference to. Some of those people are dead, but most, I assume, aren't. Some of the stories are funny, some are sad, some talk about relationships, etc.


Since when is it a bad idea to change names in your story?

[Roger J Carlson]

Let's see...whom to believe? Judith Moose with a total of 14 posts, mostly advertising her own vanity press? Or Nomad, who is a contributing member to AW and an honest-to-goodness publisher in an honest-to-goodness publishing company*?

You asked for advice. Don't just listen to the one you want to hear.

*Oh, in case you're wondering which publisher, look at the banner on the top of this page: The Street Smart Writer: Self-Defense Against Sharks and Scams in the Writing World. Published by...Nomad Press.

[MadScientistMatt]

I think the asking to lie bit was in here:

"What you are reading is based on the real-life experiences of the author. Any reference or description relating to anyone living or dead is a coinsidence only. The names of those involved have been changed to protect their actual identity."

If you look closely at the disclaimer, it starts to resemble an old courtroom joke about a very unwise thing to say in one's own defense:

"I didn't kill him, Your Honor! And it was an accident! And... and... it was a justifiable act of self-defense to boot!"

In your case, Eldragon, the first sentance (based on the experience of the author) would be true, but the second (any resemblance to any real person is a coincedence) would be an out-and-out lie. I can't believe Judith would advocate such a self-contradictory disclaimer. It has three different claims, and you could not honestly make all three claims about any book whatsoever.

[veinglory]

As you embellished the story I suggest making it very clear it is a story 'based upon' true events. So no denying who inspired it, but emphasis on it being fictional. I can think of a few books in this camp that don't seem to have got into trouble.

[Yeshanu]

Thanks, Matt. That's exactly what I was trying to say.

Pam, you can take our advice or not, but the simple truth is that Judith is giving you some bad advice here.

We do care what happens to you and your book. See a lawyer.

[veinglory]

I think the asking to lie bit was in here:

"What you are reading is based on the real-life experiences of the author. Any reference or description relating to anyone living or dead is a coinsidence only. The names of those involved have been changed to protect their actual identity."

If you look closely at the disclaimer, it starts to resemble an old courtroom joke about a very unwise thing to say in one's own defense:

"I didn't kill him, Your Honor! And it was an accident! And... and... it was a justifiable act of self-defense to boot!"

In your case, Eldragon, the first sentance (based on the experience of the author) would be true, but the second (any resemblance to any real person is a coincedence) would be an out-and-out lie. I can't believe Judith would advocate such a self-contradictory disclaimer. It has three different claims, and you could not honestly make all three claims about any book whatsoever.

All the same I do see books and tv shows with this diclaimer that include clear parodies of real celebrity's--go figure.

[eldragon]

Thanks.

As you embellished the story I suggest making it very clear it is a story 'based upon' true events. So no denying who inspired it, but emphasis on it being fictional. I can think of a few books in this camp that don't seem to have got into trouble.

Ok, so it's fiction.

[veinglory]

It is fiction if you truly write it that way using real events as a jumping off point, but if it is really a disguised memoir and likely to upset the people depicted then just saying it is fiction will not work.

[eldragon]

It is fiction if you truly write it that way using real events as a jumping off point, but if it is really a disguised memoir and likely to upset the people depicted then just saying it is fiction will not work.


Well, I am using guidelines suggested in two books: Writing Life Stories by Bill Roorback, and Your Life as Story by Tristine Rainer. The second book is especially useful, with pages and pages of advice on how to write about people, in a sometimes unflattering way, but to make it less accusatory. (Is that a word?)


I'm sure 75% of the people who are mentioned in my book would be flattered, not insulted. They probably didn't know I was paying attention!

But, there are about 100 people, who, if they worked during the same time period as I did, from 1989-1999, they might recognize themselves or someone else depicted in the book.

How does someone write an "Un-authorized biography," and get away with it?


And,

How important is the genre label?


Non-fiction probably won't do. Memoir? It's as much about others as it is about me, if not more so.

[judithmoose]

I wasn't trying to mislead the woman in any way, shape or form. Maybe I've just been around the Entertainment Industry for too long and not long enough yet in the world of publishing. The studios use exactly that type of disclaimer every time they do a series where they've used situations referred to as "ripped from the headlines". They change the names of the people involved and put a disclaimer at the end of "likenesses to people living or dead is purely coincidental" when the entire known world knows what the storyline was based on. "Law & Order" is the biggest user of that one in the history of telelvision. Lifetime Television's movies also quite often carry that type of disclaimer even on the pieces that run with a "based on a true story" introduction. It's just a standard practice in the industry that I am most familiar with.

I've consulted with an attorney specializing in Publishing Law and was told the following: "Claims of defamation are limited to living persons only and the living person must be identifiable in the writing or publication. Merely changing the names and other elements of a character or attempting to disguise a real life situation by changing facts is not necessarily a defense since a claim can be brought by any party who can be identified in the writing or publication. Further still, the mere fact that a work is a work of fiction does not serve as a complete defense since again, if the party can be identified, a claim of defamation may exist." So for all general purposes, anyone who writes a non-fiction or a fiction book leaves themselves open to people who see themselves in the characters to sue the author and/or publishing company.

Pam, I would suggest that you follow the advice of those on this board who obviously know this topic from the publishing side better than I do and consult an attorney to discuss the topic with. I apologize for suggesting something that's done in Hollywood every minute of the day.

[Lauri B]

If you don't know much about publishing, then why on earth are you promoting yourself as a publisher?

[judithmoose]

If you don't know much about publishing, then why on earth are you promoting yourself as a publisher?

I'm not going out and promoting myself as a publisher. If you read my other posts relating to Signing Stars you will note that I have very clearly stated that I am a publicist first and foremost. If you contact Pam who started this message and ask her how I've billed myself she too will tell you that I'm a publicist. It just so happens that I have a publishing house to compliment my PR firm.

Contrary to the popular belief that many people on this board and others have had, a publicist handling the release of a book isn't such a bad thing. The eight authors who are signed with me certainly don't think so. It's when items such as this come up that remind me of an old adage of "the pot calling the kettle black." When a book is a sales disaster, instead of pointing a finger at the author or the publishing company, it gets brushed off as a product of bad publicity/promotion. When a book gains national and international attention, it's because of a tremendously good PR campaign. You could have "Gone With The Wind" sitting in your office and it's not going to a thing without someone doing publicity to ensure that the book gets noticed. So while I thoroughly respect your right to operate Nomad Press in any way you see fit, I would expect and request the same from others regarding mine. I have not nor am I doing anything wrong by tossing my hat into another industry and I think it's pretty safe to assume that not one person on this forum walked into the publishing world fully versed on all there is to know about the field...

[Cathy C]

Hi, Pam! Sorry I didn't get to this thread earlier, but I actually asked my entertainment attorney this very question. We set our novels in the real world, so there's always the question about whether we're going to (accidentally or on purpose) include people who are alive or recently dead. Here was his response (and remember that this is based on a particular scenario, but is geared toward future generalities.)

**************

As you probably expected, the question you raise touches on a number of issues, but I will try to give you a road map. From my reading of your e-mail, there are four areas in which you might incur liability for writing content in which you incorporate a character who is a famous person who is either alive or recently deceased, and depict them either in events that actually occurred or in fictitious events. The four areas would be:

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 a public figure or at least that the events that you depict are events that were publicly disclosed, then no privacy right attaches. If the person is not a public figure then you need to be a little more careful here because they would still maintain some control over those aspects of their life and the events of their life that were not made public. I am not certain to what extent these claims expire on death, since with public figures 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 no exposure to a defamation claim because by definition a statement cannot be defamatory if it is true. Again, I am relatively comfortable that defamation claims would expire on death (in the same way that damages for pain and suffering expire on death), but haven't researched this issue in detail.

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.

Finally, you need to be careful about the legal exposure that might ensue from the use of the famous person’s name and likeness. This is a developing area of intellectual property law and I have not thoroughly researched it. In California, for example, there is a statute that specifically recognizes a property right in the name and likeness of a celebrity as well as a property right in certain of the life events of that person. The statute is very controversial and it has spawned some really bizarre lawsuits. For example, you may recall years ago that McDonald’s came out with an ad called “Make it Mac tonight,” in which a crescent moon-shaped piano player sang a song that was a take-off on “Mack The Knife,” the song made famous by Bobby Darren. Darren’s family (I forget if he was dead or alive at the time) sued successfully by arguing that the commercial misappropriated the character and stylistic elements that had been made famous by Darren. The case was roundly criticized but the law remains on the books. Other states probably are not as far down the road in recognizing this right but you need to be careful in any event about using the name or likeness of a famous person because that person (or their estate) would certainly have a basis for saying that you were “palming off” on the good will associated with that person’s attributes. This is why, as I am sure you recognize, most books contain disclaimers stating that no resemblance to any real person is intended.

Turning to your second idea, which would be to use real people but in fictional circumstances, the analysis is a little bit different and your actions are far more risky. There would be no privacy claim per se because you would not be depicting private events of that person. Defamation probably would not be an issue if the person was already deceased. The infringement analysis is the same as above, you need to make sure that anything you create is an original work. However, the “name and likeness” issues would still arise because one could still make the same claim that you are profiting off that person’s name and likeness to sell your book. You could temper this by putting in a disclaimer, but there would still be a risk because the other side might claim that the average reader would not know that this was fiction and might believe that the events actually happened, thus disparaging the person in question or the value of their commercial estate

There is not a specific time limit after a person dies in which these potential legal claims expire. Certainly the privacy right would not survive the person’s death and the same would probably be true of defamation. I do not however feel that comfortable that the name and likeness claims would expire merely because the person passes away. Again, there is lots of litigation in California brought by the estates of famous people who have passed away in which they are able to assert property rights in that person’s name and likeness usually associated with merchandise or other commercial activities.

I would certainly think that the longer the person has been dead, the weaker this claim would become but you need to be careful. If you do want to depict a famous person (such as David Koresh) in fictional circumstances, I am not going to tell you not to do it but I think you need to be very careful.

************

Based on his advice, I have chosen NOT to risk myself or my publisher with potential lawsuits, and use only fictional characters, or vague references to news stories that ACTUALLY exist without quoting.

Hope that helps a little. :)

[eldragon]

Thanks, Cathy, for that super thought-out reply!

None of my characters are famous, if that helps.


I did have a short bit about Ed McMahon, and it had to do with his accompanying young girls, and how they tried to con me out of his tip. I never expanded on what his relationship with them might be, as I didn't know. But, if its an invasion of privacy, I'll just delete the piece. No big deal.


Whew!

[Cathy C]

Actually, it's the other way around. You might have missed this part:


If the person is not a public figure then you need to be a little more careful here because they would still maintain some control over those aspects of their life and the events of their life that were not made public.

Now, merely changing the names to protect the guilty ( ;) ) may not relieve you of liability if a reasonable person could identify the people based on a) the circumstances you recount, or b) if characteristics of the person (job, description, family elements) are similar enough to identify the person.

Memoirs are tricky things, just because of this. Ask James Frey--I think the first lawsuit, from the parents of the girl killed by the train, has been filed.

[Jaws]

Just one follow-up on the thorough outline Cathy's lawyer provided:

One of the truisms in American law is that "you can't libel the dead." Well, that's not strictly true. In most states you can't libel the dead. The two exceptions, though, are significant. Certain heirs of natural persons who were legal residents of California or Tennessee at the times of their deaths (the persons, not the heirs!) can sometimes maintain a libel suit. Admittedly, this would be a "tag-along" cause of action; I find it hard to believe that a decent attorney would file a suit with only a libel-of-the-dead cause of action. However, it can be a useful tool both because it allows in evidence that might not otherwise be admissible in an invasion-of-privacy or trade disparagement suit, and because sometimes the measure of damages for libel is a lot more favorable to the plaintiff.

Admittedly, this is a technical and rare point; it's just that it's so interesting from a fictional perspective that I can't resist making it. (For fun sometime, try reading William Gaddis's A Frolic of One's Own; you'll understand why if you do.)

[eldragon]

What is considered libel?


Describing someone as physically unnattractive?
Saying someone is overweight or has bad breath?
Saying someone slept with several partners, but not going further into detail?
Calling someone dishonest?


If I am describing someone I used to know, and say "The woman was overweight, with large, elephant-like ankles, and was an unattentive mother."


Can she sue me if it isn't true? Or, does she have to prove that, at the time, she was thin, with thin ankles, and paid attention to her children?

Just curious as to what defines "libel."

[Lauri B]

I'm not going out and promoting myself as a publisher. If you read my other posts relating to Signing Stars you will note that I have very clearly stated that I am a publicist first and foremost. If you contact Pam who started this message and ask her how I've billed myself she too will tell you that I'm a publicist. It just so happens that I have a publishing house to compliment my PR firm.

Contrary to the popular belief that many people on this board and others have had, a publicist handling the release of a book isn't such a bad thing. The eight authors who are signed with me certainly don't think so. It's when items such as this come up that remind me of an old adage of "the pot calling the kettle black." When a book is a sales disaster, instead of pointing a finger at the author or the publishing company, it gets brushed off as a product of bad publicity/promotion. When a book gains national and international attention, it's because of a tremendously good PR campaign. You could have "Gone With The Wind" sitting in your office and it's not going to a thing without someone doing publicity to ensure that the book gets noticed. So while I thoroughly respect your right to operate Nomad Press in any way you see fit, I would expect and request the same from others regarding mine. I have not nor am I doing anything wrong by tossing my hat into another industry and I think it's pretty safe to assume that not one person on this forum walked into the publishing world fully versed on all there is to know about the field...

Judith,
You just posted last week on this forum about your publishing company and how well it's going--please see your post in POD publishing. It's fine that you are promoting yourself as a publisher, but since you do, it's your responsibility to know what you're talking about. It's my job as a moderator, and as someone who has spent many years in the publishing industry, to comment when I see statements that aren't correct.

I have very strong opinions about self publishing, primarily because most people who self publish do not realize what they are getting into. No amount of money spent on a publicist is going to make the vast majority of self-published books or vanity-published books a success. Bookstores DO NOT stock self-published or vanity-published books unless they meet certain print run minimums and the books are distributed by a reputable national distributor.The two books you mention on the other post, "Who's Who of Stage and Screen," and "I Call Him Christopher," have abysmal sales. Would you be happy if your books sold those numbers? I wouldn't.

Contrary to your statements above, most traditional publishing houses spend a great deal of time and money promoting their books and authors. Publishers I know who have hired outside publicists and have been happy are those who work with publicists with experience in the publishing industry. I think it's fine that you're a publicist, and you're offering publicity services to your clients. What I don't think is acceptable is to offer publishing services when you don't know what you're doing.

[Cathy C]

If I am describing someone I used to know, and say "The woman was overweight, with large, elephant-like ankles, and was an unattentive mother."

overweight - your opinion, not libel. You might think anyone bigger than Kate Moss is overweight.

large ankles - your opinion, not libel. Same reason.

unattentive mother - Ah! Possibly actionable (you're accusing of a potentially illegal act, depending on the severity of the inattention. This is where it gets tricky. See this difference?)

[Tish Davidson]

unattentive mother - Ah! Possibly actionable (you're accusing of a potentially illegal act, depending on the severity of the inattention. This is where it gets tricky. See this difference?)

But you could probably say something like "never seemed to know what her kids were up to" and that could be opinion.

[MadScientistMatt]

John Scalzi has a classic essay on his blog (http://www.scalzi.com/whatever/002809.html) about when you can be sued for libel. He takes a really outlandish accusation - "John Scalzi is crack-smoking cat sodomizer. It's true. I've seen the pictures," and looks at when this might be libel and when it isn't.

[eldragon]

MadScientistMatt - that's a great blog. Thanks for the link!