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Wayne K
05-06-2009, 03:34 PM
Obviously I know nothing about the law, but I'm learning fast with AW's help.

I'm writing a memoir and am considering changing it to a novel. Can I still use people's real names if I change it to fiction?

I foresee lawsuits from one possble person and that will happen whether it's fiction or not.

Puma
05-06-2009, 04:10 PM
My historical novel uses people's real names - but it's set 200 years ago. Even so, I did worry about descendants of the people in the story taking issues with the story (even though it was based on documented fact.)

If you're talking about something that's current, I think you could have some real problems. Puma

hammerklavier
05-06-2009, 04:23 PM
With fiction you cannot use people's real names or they could sue you. You need to change the names and some of the personality traits or situations to make them different.

Wayne K
05-06-2009, 04:31 PM
Why is it that a newspaper can say "So-and-so did this or that." but you can't do that in a book?

Wayne K
05-06-2009, 04:34 PM
If i asked a mayor "What do you think of abortion?" and he said he was against it. But then lost an election because of it, he can sue me for saying it in a book. That makes no sense to me if the story is true.

CaroGirl
05-06-2009, 04:44 PM
If i asked a mayor "What do you think of abortion?" and he said he was against it. But then lost an election because of it, he can sue me for saying it in a book. That makes no sense to me if the story is true.
These kinds of lawsuits are generally defamation suits. Any statement in a book that uses the names of living people is under the same burden of proof as a newspaper. Newspapers get threatened with lawsuits all the time. That's why they keep meticulous records, including notes, tape recorded interviews, times and dates, and so on.

True crime books are closer to journalism and have to be careful that what they print about living people is correct and accurate. Memoirs have slightly more leeway because stories are often related to the best of the memoirists recollection, but there's still a responsibility to be truthful (see Frey).

Historical novels get away a lot more because the people are dead. You can't defame the dead.

ETA: Your mayor can't sue you if you can prove that he said it. If you printed the truth, whether in a memoir, a newspaper, or a novel, there is no lawsuit.

thethinker42
05-06-2009, 04:45 PM
*sidles in and watches thread intently*

Wayne K
05-06-2009, 04:48 PM
What if someone is in the federal witness protection program?

Ken
05-06-2009, 04:49 PM
... I "think" the way it goes is that public figures, like mayors or celebrities, can be quoted without one needing to get permission, at least in news articles, and possibly in fictional works too. Private citizens like you and I, though, can not be quoted without writers getting permission from us first. That's just the way the law is written, "I think." May be wrong about this? So definitely don't use real names in your book.

CaroGirl
05-06-2009, 04:58 PM
What if someone is in the federal witness protection program?
The CIA would destroy all the evidence and then haul you in to have you tortured and your memory erased. Twice.

Wayne K
05-06-2009, 05:17 PM
I'm serious though. More than one of the characters in Black Dark are in the federal witness protection program, Their careers have been erased--they don't exist. How do you defame someone who doesn't exist anymore.

thethinker42
05-06-2009, 05:18 PM
I'm serious though. More than one of the characters in Black Dark are in the federal witness protection program, Their careers have been erased--they don't exist. How do you defame someone who doesn't exist anymore.

Well, I suppose if they technically don't exist, they can't very well sue us...

Wayne K
05-06-2009, 05:22 PM
The publicity would be off the charts if they did.

CaroGirl
05-06-2009, 05:29 PM
I'm serious though. More than one of the characters in Black Dark are in the federal witness protection program, Their careers have been erased--they don't exist. How do you defame someone who doesn't exist anymore.
I have no idea. But, in that extremely rare case, I'd strongly suggest NOT using anything close to their real names. That sounds illegal, assuming the witness protection designation is a legal designation. Their old identities might not exist, but the people themselves do.

NeuroFizz
05-06-2009, 05:43 PM
Is the Ask the Agent thread still active? Seems a publishing professional should know this kind of thing.

Wayne K
05-06-2009, 05:47 PM
I put one up for the Jennifer Laughton and waited a while to be told to ask Nathan Bransford. I'm moving with this book so I kind of was hoping to get a direction. What kind of lawyer would know stuff like this?

Wayne K
05-06-2009, 05:52 PM
As of right now I have to get Leonard Cohen's consent, which I'm feeling good about--someone from AW is going to put me in touch with his manager.

I have a guy from The Marshall Tucker Band's permission to use their lyrics--have to call the publisher.


How exactly do I get someone in witness protection to sign a release?

This is a lot of work.

Red-Green
05-06-2009, 05:54 PM
I mentioned it elsewhere, but I'll mention it here, too. There's a novel called Sway in which members of the Rolling Stones appear as fictional characters. The author hasn't been sued and the books are still selling, so...you might look into that situation.

stormie
05-06-2009, 05:54 PM
What kind of lawyer would know stuff like this?A literary attorney perhaps.

TabithaTodd
05-06-2009, 05:55 PM
I put one up for the Jennifer Laughton and waited a while to be told to ask Nathan Bransford. I'm moving with this book so I kind of was hoping to get a direction. What kind of lawyer would know stuff like this?

Any lawyer that deals with civil lawsuits or civil laws. Defamation of character or slander\libel is a civil matter. Most lawyers will answer this question on the phone for free.

TT

jessicaorr
05-06-2009, 06:07 PM
Why is it that a newspaper can say "So-and-so did this or that." but you can't do that in a book?

Because a newspaper is presumably printing the truth. If a paper runs a defamatory article that is incorrect, they can (and likely will) be sued by the offended party. Whenever you write something about a real person, especially if the person is not a celebrity you had better make sure it's true or you may find yourself on the wrong end of a lawsuit.

Just save yourself the trouble and change the names and tweak the personalities so the real people are unrecognizable in your book.

Phaeal
05-06-2009, 06:08 PM
Publishers have legal counsel. Whether a publisher or agent would want to take on a book that might cause legal problems is another matter. I expect they would weigh probable profit against probable legal costs against probable loss of face, etc, etc.

I would change all names to protect the innocent, that is, me. The only reason I can see to retain the true names is a hope of gaining publicity/sales steam from some kind of real life scandal or notoriety. Could be lucrative. Could be a total disaster.

I'd start with a lit lawyer, too, if I was determined to go ahead with the real names. Or, more likely and less expensively, with my family lawyer, 'cause she's sharp and would at least know where to send me. ;)

Wayne K
05-06-2009, 06:09 PM
Free sounds good.

I'm derailing my own thread here, but an agent who is also a lawyer is a literary lawyer then right?

backslashbaby
05-06-2009, 06:17 PM
Just my two cents, but don't change it to a novel! The greatest part of your story is that it's true.

Wayne K
05-06-2009, 06:18 PM
Just my two cents, but don't change it to a novel! The greatest part of your story is that it's true.

To be honest I'm stuck because memoir might equal 7 1/2 to 25.

Dancing bananas I mean;)

Priene
05-06-2009, 06:24 PM
I foresee lawsuits from one possble person and that will happen whether it's fiction or not.

If this is the case you could be in deep trouble if your book is sold (not published, just sold) in the United Kingdom. That can include a couple of hundred copies sold through Amazon to UK addresses. Our libel laws are ridiculously biassed against writers, so much so that we have libel tourists: people who are defamed in other countries but who choose to sue through the UK courts as they've a better chance of winning and higher potential gains.

If you get sued for defamation of character, it's up to you to prove the truth in your allegations, not for the suer to disprove them. Thinly disguising your characters wouldn't save you from this, and personally I'd make enough changes to the character that you can convincingly argue that it is not based on any living individual. You've already made a bad move by admitting on a public messageboard that you can foresee lawsuits. That would rob you of the chance to plead ignorance, and - assuming you are unable to prove your allegation(s) is a law court - makes it clear that what you are planning is premeditated, which courts take a dim view of.

jst5150
05-06-2009, 06:36 PM
Excerpted:



Q: Can you use real names in fiction? -Chris

A: It depends on whose name you want to use, and how you want to use it. Because Iím not sure exactly what kind of name youíre talking about, itís difficult to be specific. Do be aware that thereís a legal difference between public and private figures, and that you can get away with more when using public figures than private, public meaning celebrities, politicians, entertainers, and those whose work would normally keep them in the public eye.

As for private figures, youíd be very, very wise not to use real names in any event. Authors have been sued for the appearance of maligning private figures, even without the use of that figureís name. Terry McMillan (Waiting To Exhale, How Stella Got Her Groove Back), in her novel Disappearing Acts, featured a male character named Franklin, who could be alternately tender and loving and drunk and abusive.

A former boyfriend took her to court, saying she had maligned his character with the portrayal. McMillan countered that as a writer she had a right to draw on her life experiences as a basis for her fiction, and that Franklin wasnít solely based on her former boyfriend. McMillan eventually won, but this works as a cautionary tale for writers considering using real names, or too closely portraying real people in their fiction.

Iíd say when in doubt, have an attorney look it over. You may find free or inexpensive assistance through Volunteer Lawyers for the Arts.



Anne Bowling
Editor of 2001-2005 Novel & Short Story Writer's Markets
Writer's Digest Books

benbradley
05-06-2009, 06:38 PM
Why is it that a newspaper can say "So-and-so did this or that." but you can't do that in a book?
As someone said, they can't just say those things. Even as careful as they may be, ewspapers have been sued, as in the case of Richard Jewell:
http://en.wikipedia.org/wiki/Richard_Jewell

News reports couch things in such "alleged" language it's pathetic. I heard a radio news description of a crime where they said "the alleged perpetrator then ran away" when they had no clue who this "alleged" perpetrator was. I think they would have been okay just saying "the perpetrator."

I'm serious though. More than one of the characters in Black Dark are in the federal witness protection program, Their careers have been erased--they don't exist. How do you defame someone who doesn't exist anymore.


Well, I suppose if they technically don't exist, they can't very well sue us...
But if they wanted to sue you, they probably couldn't do it without risking exposing their new identity and its connection to the old identity you're writing about. So might you have to worry about them taking out some other form of 'justice'? Just wonderin', and I recall we've had this conversation before, and I recall you're willing to risk it.

I recall in some other post you saying it's important for you to use at least one or a few real names, as you're wanting to expose some nasty stuff they got away with, is my memory right? I can see where that would complicate things.

If you had a publisher they'd (from what I've read here on AW) hand it to their in-house attorneys. Even if you hire an attorney now with experience in this area, a publisher you get later might still tell you to make substantial changes from what your attorney told you for legal (as THEIR attorney sees it) or other reasons, so who knows...

jst5150
05-06-2009, 06:39 PM
This also holds some good info:


Seeing a comic book series titled Jonah Hex: Riders of the Worm and Such, the well-known albino rockers, brothers Johnny and Edgar Winter, thought that the long-white-haired, red-eyed villains known as the "Autumn Brothers" were clearly created in their likeness.

Nevertheless, the court ruled that the comic books had not "merely" used the brothers' fame, but had in fact transformed their images to a new form that was sufficiently original in its half-man/half-wormedness.

"Prominence invites creative comment," the court proclaimed, implying that different rules may apply to celebrities. Any economic loss incurred by the appropriation of a celebrity's likeness, explained Zirker, must be balanced by "whether or not the creativity in the work outweighs the literal or replicative use of the likeness." What's more, "In applying this 'transformative' test, neither the relative sophistication or crudeness of the work nor the degree to which the work is or is not a parody has any bearing on whether the work is protected by the First Amendment."
http://ourworld.compuserve.com/homepages/stevecarper/bull160.htm

ChaosTitan
05-06-2009, 06:43 PM
Wayne, now I'm curious. Why do you want to change your story from memoir to "novel" when you aren't changing the actual events/names of people involved? If all of this stuff remains true, you aren't writing fiction, so you can't call it a novel.

Wayne K
05-06-2009, 06:48 PM
wow. which question to answer first. I need to reread.

Manix
05-06-2009, 06:53 PM
Here's a link and a quote:http://www.associatedcontent.com/article/1066492/pros_and_cons_of_using_your_real_name.html

Quote:

Answer
Assuming the reason you don't want to use their real names is to avoid a lawsuit, let me give you a laypersonís answer, because I'm not an attorney. If you are concerned about being sued, merely changing the names may not be enough to avoid being sued for libel. Libel is a false and malicious published statement that damages somebody's reputation. People can sue for libel if they think their identity will be obvious to readers, even if the name is changed. They can sue even if you tell the truth, too, in hopes a judge will decide in their favor. The only good defense against libel is not merely a name change but also ensuring that the information is not false. If you can be prove the information to be true, it probably will not be found to be libelous in a court of law.

I can tell you, though, that in writing my memoirs, I often use real names for my close relatives, but change the names of others, because I have no idea what they may be doing or thinking today, after all these years, and I don't want to upset anyone if I can help it. I also don't stretch for information I am not certain about; I tell the truth.

Memoirs get written and published all the time; the decision to change the names will be left up to you. The only thing that is not negotiable is whether the information is true or not.

Manix
05-06-2009, 06:56 PM
Oops. ETA, that link was the wrong link. You're probably thinking "what the..?" Yeah, so am I...

Wayne K
05-06-2009, 06:58 PM
Wayne, now I'm curious. Why do you want to change your story from memoir to "novel" when you aren't changing the actual events/names of people involved? If all of this stuff remains true, you aren't writing fiction, so you can't call it a novel.

Fear of lawsuits means publishers and agents won't want it.

I spent twenty years running away from something and now everyone wants me to have stashed proof of it away somewhere...it's stupid.

Truth is truth. But litigation is simply censorship.

Manix
05-06-2009, 06:59 PM
Okay, this is the one I meant to send: http://www.writersreign.co.uk/Names-in-memoirs-use-real-or-fictitious-.html

Wayne K
05-06-2009, 07:03 PM
In most jurisdictions an accessory cannot be tried before the principal is convicted, unless the accessory and principal are tried together, or unless the accessory consents to being tried first.

This helps me.

ChaosTitan
05-06-2009, 07:04 PM
Fear of lawsuits means publishers and agents won't want it.


Fear of lawsuits is why new memoirs are published every month? :Shrug:

Wayne K
05-06-2009, 07:04 PM
To be convicted of an accessory charge, the accused must generally be proved to have had actual knowledge that a crime was going to be, or had been, committed. Furthermore, there must be proof that the accessory knew that his or her action, or inaction, was helping the criminals commit the crime, or evade detection, or escape. A person who unknowingly houses a person who has just committed a crime, for instance, may not be charged with an accessory offense because they did not have knowledge of the crime.

This hurts me.

Wayne K
05-06-2009, 07:05 PM
Presumably.

Wayne K
05-06-2009, 07:06 PM
What if someone else wrote about it?

There is a book documenting some of the things I say.

Wayne K
05-06-2009, 07:09 PM
The only think I've realized about the truth since I started writing about the truth is that nobody will let it be told.

Wayne K
05-06-2009, 07:10 PM
I'm not saying that Norman Schwartzkov was my Persian Boy.

I'm reporting the facts of my life.

Wayne K
05-06-2009, 07:12 PM
If a person doesn't want the story of my life told, all they have to do is threaten to sue.

That's censorship.

That's wrong.

thethinker42
05-06-2009, 07:12 PM
Fear of lawsuits is why new memoirs are published every month? :Shrug:

There's legitimate cause for concern with this particular piece...Wayne and I have been going back and forth for some time trying to figure out how to present it without causing ourselves some serious headache, but still being true to the story. I'll leave it up to him to decide how much information to divulge, but I will say that Wayne's concern is a valid one.

Manix
05-06-2009, 07:15 PM
The only think I've realized about the truth since I started writing about the truth is that nobody will let it be told.

I guess it would be important to ask yourself, "Which truths can I absolutely live with no one ever knowing about?"

There are quite a few truths about my life that I'm glad no one is telling out in public, and it would have hurt more people to tell them than just to have left them in the dark.

Is it worth it to you? Will it hurt your family? Will it cause more pain to surface for people who might have moved on from the past, too?

I don't know, but you can answer those questions for yourself to decide what needs to come out.

backslashbaby
05-06-2009, 07:16 PM
Hmmmm.... maybe fiction is the way to go, and think of parallel situations. [?]

I am using so many real things in my WIP to show a truth, but a] nobody'd care that they were in it, and b] the truths are more general.

Yours does sound very tough.

Wayne K
05-06-2009, 07:25 PM
I think I'm just going to go memoir and let the chips fall where they may.

I'm crazy in that I can't stand when there's a force that wants to shut me up. I thought writing was my way of telling the truth. A lIfe Gone Awry was called FU Too for a while. I seriously thought I xcould tell the truth about it all and people would line up to read it.

Then they say "You can't say this..." and "You can't say that..."

All of a sudden there are rules about the truth that hide the truth.

I thought people would want to hear the real details from someone they didn't know was in the room.

CaroGirl
05-06-2009, 07:28 PM
I think I'm just going to go memoir and let the chips fall where they may.

I'm crazy in that I can't stand when there's a force that wants to shut me up. I thought writing was my way of telling the truth. A lIfe Gone Awry was called FU Too for a while. I seriously thought I xcould tell the truth about it all and people would line up to read it.

Then they say "You can't say this..." and "You can't say that..."

All of a sudden there are rules about the truth that hide the truth.

I thought people would want to hear the real details from someone they didn't know was in the room.
Write it. Write the whole thing the way you want to tell the story, the truth, warts and all. And then you, an editor and a lawyer can edit it. Or you can wait until everyone's dead.

Wayne K
05-06-2009, 07:28 PM
Dusty McCoy asked me to to help The Fridge after he did what he needed to do to Iggy Pallantino.

If I told you the real names here you would beat a path to my door for the chapter.

Manix
05-06-2009, 07:29 PM
I think I'm just going to go memoir and let the chips fall where they may.

I'm crazy in that I can't stand when there's a force that wants to shut me up. I thought writing was my way of telling the truth. A lIfe Gone Awry was called FU Too for a while. I seriously thought I xcould tell the truth about it all and people would line up to read it.

Then they say "You can't say this..." and "You can't say that..."

All of a sudden there are rules about the truth that hide the truth.

I thought people would want to hear the real details from someone they didn't know was in the room.
You can say the truth. That's your prerogative. And somebody out there might just publish it--or you could self-publish. But just be aware that it may have unpleasant repercussions. You have to be ready to deal with those. If it's worth it, then do it. Just consider the ramifications to yourself, your family and your future first, before charging in. You'll have a harder time retracting what you say, after the fact. That's what they mean when they say, "The past comes back to haunt you."

Wayne K
05-06-2009, 07:58 PM
Here's the approach as a novel.

I hand a beta reader on a world famous online writers site (we have Mac's permission to use AW) and say "What do you think of this?"

thehtinker42 aka Lori Witt writes her memoir about doing it. "What's this guy getting me involved in?"

As a novel I can do what I want.

As a memoir I have to write the truth. I have no problem with that except that lawsuits will repel an agent or publisher. That's censorship through fear of litigation. It's messed up but it had me considering the novel approach.

I would rather settle the lawsuits and make nothing than write a pile of crap that no one can follow.

Can you blog anything you want?

Maybe I'll do that and see what the world believes.

NicoleMD
05-06-2009, 08:32 PM
Could you do a memoir and have a disclaimer that names have been changed to protect the innocent (or not so innocent)? It seems to me that something this juicy would sell better as a memoir. Also it seems every memoir I've picked up lately has a disclaimer that some parts may have been embellished for dramatic effect anyway, so 90% truth, 10% fiction might be a good solution for you?

Nicole
(Not a lawyer)

Wayne K
05-07-2009, 02:16 AM
Actually in my introduction I disclaim names because I can't remember some of them. Events are clear though.

Wayne K
05-07-2009, 05:41 AM
"The names have been changed to protect the author"

Wayne K
05-07-2009, 05:42 AM
"The names have been changed because the publisher is afraid of lawsuits"

Wayne K
05-07-2009, 05:43 AM
Wow this sig is big. I need to change into something smaller.

thethinker42
05-07-2009, 05:50 AM
"The names have been changed to protect the author"

BOTH authors. ;)

jodiodi
05-07-2009, 06:20 AM
I mentioned it elsewhere, but I'll mention it here, too. There's a novel called Sway in which members of the Rolling Stones appear as fictional characters. The author hasn't been sued and the books are still selling, so...you might look into that situation.

Frankly, with the Rolling Stones, pretty much anything that can be said about them has been said ... and most of it either true or contributes to their 'bad boys' reps, so ...

Jodiodi, whose mother kept a life-size poster of the Rolling Stones in her sewing room.

Wayne K
05-07-2009, 07:02 AM
BOTH authors. ;)

I meant generic author.

C.bronco
05-07-2009, 07:05 AM
Yanno, I'd just write it and let the agents and editors sort it out. Dale Peck wrote "a novel based on a true story." That might be the way to go; it beats the heck out of the A Million Little Pieces fiasco.

benbradley
05-07-2009, 07:13 AM
...
Can you blog anything you want?

Maybe I'll do that and see what the world believes.
I thought of what you would think of putting it online before I read the word blog. The good news is you CAN 'publish' it onlline as a blog, other webpage, or Lulu book with freely downloadable .pdf file, whatever. That's basically self-publishing, and it short-circuits getting rejected by all commercial publishers. The bad news is is "uses up" your First Publication Rights (that's what publishers really want to buy, but if the publisher thinks it's exceptional, they might publish it anyway and have you delete the online copy) and of course doesn't have the publicity and number of readers a commercially published book would have.

I think the worse news is someone could sue you for having whatever you say about them on a webpage just as well as if it were printed in a commercialy published book. The same slander and libel laws apply.

Wayne K
05-07-2009, 06:59 PM
How do I pitch a book that's going to result in law suits?

When I wrote these books I thought people would drool over them, especially after James Frey was exposed for fraud--now they're telling me that because of lawsuits I need to bury the truth, and that there's a way of doing it--rules about doing it.

Besides: How would the rest of you feel if this happened to you-- If some religious group sued erotica or YA fantasy publishers until they shied away from your genre?

I wrote a book, it's kind of tough to hear "sorry too much truth"

CaroGirl
05-07-2009, 07:03 PM
How do I pitch a book that's going to result in law suits?

When I wrote these books I thought people would drool over them, especially after James Frey was exposed for fraud--now they're telling me that because of lawsuits I need to bury the truth, and that there's a way of doing it--rules about doing it.

Besides: How would the rest of you feel if this happened to you-- If some religious group sued erotica or YA fantasy publishers until they shied away from your genre?

I wrote a book, it's kind of tough to hear "sorry too much truth"
I think you should pitch it straight. Just say this is my story, as truthfully and honestly as I can recall it. Do you want it or do you not? There are agents and publishers who will see the gold in it despite the potential drawbacks. Anyone else, you don't want to work with anyway.

I hope worrying about this stuff isn't stopping you from writing the memoir you want to write. Research is good, but don't let it paralyze you from finishing the work.

Wayne K
05-07-2009, 07:10 PM
We're putting the finishing touches on it.

I'm reworking number two.

Thanks for the advice, I'm on it.

My goal is to pitch this before June 1.