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nicegrrl
08-03-2006, 05:23 AM
So, if you write a fictionalized memoir, which I am doing and it is starting to scare me. But if you write a fictionalized memoir and your characters are clearly based off real people that will recognize themselves, do you ever feel bad or afraid they wont take it well?

I am saying some bad things about people and mostly they deserve it, but still. How would you feel if you ended up being the villain in a novel of someone that you thought liked you?

AmyBA
08-06-2006, 07:01 AM
Honestly, if it were me, I'd probably be pretty upset. Is there any way that perhaps you could create composite characters from a few people or maybe change enough of the recognizable details that people wouldn't recognize themselves?

Perks
08-06-2006, 07:08 AM
You will have to be very careful if you have any intention of publishing this work. You'll be wanting to have plenty of cushion for cries of libel. It can be easy money in the this world, suing people. It's practically a national pastime in the US.

If what you are saying is true and you're comfortable with the possibility of legal backlash, then it's a matter of weighing how bad you feel at their negative reaction, against how great it feels to get it out in an excellent book.

ETA - As far as how I'd feel? I'd be pissed.

cree
08-06-2006, 08:03 AM
I think it's amateur; why not first write this all down, just for you, then use the passion you capture in that to develop some fictional characters for a novel?

Godfather
08-06-2006, 07:27 PM
It may cause some trouble,

but you know, if they've had it coming to them. I guess it's good you get it out in the open

nicegrrl
08-06-2006, 10:16 PM
So, they really can sue me even if I dont use their names?

Like, I am planning on giving them jobs and positions that dont exist in order to fictionalize them.

And I am also planning on dissing a secret society with something another secret society did. So, I'm using the real name of the most prestigious one in the area, but I'm accusing them of things that the 2nd most prestigious society is better known for (date raping girls and settling out of court with them with money they already set aside for that predicted purpose). They both do it, so I dont paticularly feel bad about writing this. And I know for sure they do it too. Then I want to write they did things they didnt even do. Does that mean I have to use a fake secret society? I could use one that sounds exactly like the real one.

I also want to diss real departments in a real university- with things they definitely do IRL but dont admit to. Can I use the real university and make up a department? Or can I just out the department and claim the story is fiction?

I also want to make reference to a black site prison (secret CIA prisons for terrorists) in Poland. There is one there, but the CIA denies it. I know because- well I shouldnt know, but I do and I know that people are put in there for no reason. Can I write about this?

I think I'm going to write about everyone in real terms and change things later.

veinglory
08-06-2006, 10:33 PM
I wonder about "want to diss" rather than "want to expose the truth?" I suggest you look at your motivations and jus how you want to place this story. If it is to be fiction to explore themes--truly fictionalise and maniopulate events to best serve the narrative and concepts (which are?). if it is to be fiction as a veil and excuse against libel it may not work out for the best.

Perks
08-06-2006, 10:41 PM
Nicegrrl, you're not just taking on individuals, you're talking about established entities who stand to suffer significant embarassment and perhaps finacial and reputation damages. They are likely to fight back.

If you have an expose in your back pocket, you may want to consider shopping it around, discretely, as a non-fiction proposal before you invest the time and energy in writing it. If it's a good enough story, you may consider seeking the backing of a reputable publisher who may take on the risk for the chance at a juicy blockbuster.

eldragon
08-06-2006, 10:43 PM
If someone sues you for libel, it has to be untrue. If you are telling the truth, they have no case.


I recently grappled with this same thing : publishing a memoir that included the descriptions of many different people I worked with over the period of a decade.

One one edit, I specifically went through and took out stuff that was there for no other reason then to be mean.

On another edit - I changed the names and personal details about people - again and again and again. If the lady had long black hair, I made her have short blonde hair. If she were fat, I'd make her thin. If she had 2 kids I said she had 4. If she were an Indian, I said she was from England. Now - the events that happened - were all true and I stuck to the facts as I understood them - as I experienced them.


BTW - the book I wrote will be delivered to the casino I wrote the book about - tomorrow. They are selling it in their boutiques and gift shops.

nicegrrl
08-06-2006, 11:03 PM
If I write it as an expose, it has no plot and doesnt come together. I'm putting a bunch of things that have no real life connection together.

I am planning on changing the race and heights and physical descriptions of everyone involved. Still, some people do things that are just distinctive. Like, I want to talk about a drug dealer that used to work in biomedical waste in order to collect aborted fetuses and keep them in jars as decoration (villain). I dont really see how fiction can improve on that one, but the person would certainly recognize himself.

What is he going to do? Take me to court and sue me because he recognizes himself from the illegal actions of my fictional character?

Cathy C
08-06-2006, 11:14 PM
Yup. Either an individual (or the person's heirs) or a corporation/company can do just that. It happens all the time.

Awhile back, I contacted my entertainment attorney about this very issue. Since our books are set in the "real world", I wanted to find out what issues were involved in mentioning real people or events in the media. It was a VERY long response, but here's the things he said that are the actual legal issues involved:


Hi Cathy, good to hear from you. 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 person, famous or not, who is alive or 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.


Over the course of the next four pages, he expanded on what circumstances people could sue. I won't post it here, because I have no right to (being a private correspondence). But suffice it to say that if a person recognizes themself, there is indeed a good chance that not only could they sue, but they could WIN.

Your only recourse is if everything you say is TRUE, and that would have to be proved in court--which costs money to defend. Use caution unless you're willing to pay the price.

Good luck! :)

Perks
08-06-2006, 11:14 PM
Like, I want to talk about a drug dealer that used to work in biomedical waste in order to collect aborted fetuses and keep them in jars as decoration (villain). I dont really see how fiction can improve on that one, but the person would certainly recognize himself.

What is he going to do? Take me to court and sue me because he recognizes himself from the illegal actions of my fictional character?Yeah, I'm betting you could get away with that one. Blech. Bastard.

Just tread cautiously. If the tale is worth telling, you'll find away. But keep in the back of your mind that if people can find a way to cash in, or pinch their 15 minutes of fame (or notariety) on your efforts, they will.

Good luck and happy crafting.

Mac H.
08-06-2006, 11:16 PM
A couple of quick tips:

1. Renaming characters etc will do you NO good at all if you do a single radio interview were you say "Oh - I based the events on the major University near me" - or mention it on a message board

If it is public knowledge who you REALLY meant, then it doesn't matter.

2. A MAJOR problem where authors get stuck is claiming motivations on the accused. You can say "They returned to the scene that night, and destroyed evidence before the police arrived" .. if it is true. You can NOT say "They went back to the scene that night to destroy evidence before the police arrived."

See the difference? One is a provable fact. The other attributes motive to them ('they did it for XX reason') which is fundamentally unprovable.

You can say "They paid woman who claimed they were raped out of their legal fund" if you can prove it is true.

You can NOT say "They set up the fund to pay women who they raped" - even if one person claims it is true, you'll find more who just say it is a general legal fund. The most you could probably say is that "XXX, who set up the fund for the University, stated that the purpose of the fund was to pay women who the students raped. YYY denied that the fund was for that purpose, and points out that XXX was never involved in the day-to-day running of the fund."

Even in your few brief statements, you've managed to violate this 'never attribute motive' rule more than once !!!!


What is he going to do? Take me to court and sue me because he recognizes himself from the illegal actions of my fictional character?
No. He'll take you to court to sue you because he has suffered harm (say, to his reputation) by your publication of the claims. He'll also sue the publisher, who will have a lot more to lose.

Put it this way - do you have statutary declarations from witnesses etc for EVERY SINGLE CLAIM that you make? Just being 'general knowledge' or 'everyone knows that' isn't enough. At the very very least that is what the legal department of the publisher will insist on. At the very least.

At the very least, the hospital could easily get an injunction because you are claiming that the hospital/medical waste processor is violating rules, ethics etc - what is your proof?

It also brings up another aspect - if you do have evidence of these crimes, then the accused will always ask why you haven't handed over your evidence to the Police?


I am saying some bad things about people and mostly they deserve itSo even at the start of the project, you know that not everything you say is deserved?

In other words, you KNOW that some of the harmful things you are saying are undeserved. (Ignoring exactly who is judge, jury & executioner on 'deserved')

You basically are admitting that there are some statements where you KNOW you don't have the 'truth' defense on your side. Being 'partly' true is worse than being entirely false.

If it is entirely false than there are no similarities that people can recognise.

You really need to rethink this, IMHO.

Mac
(PS: As always - get real legal advice if you want to pursue the project.)
(PPS: You also can't assume that "Newspaper A printed it and didn't get sued, so I won't get sued either." It doesn't work that way. There have been cases were they've only gone after the 3rd or 4th person to repeat the rumour.)
(PPPS: Even if the alleged drug dealer has made the claim himself, that doesn't make it true. Plenty of people have used the 'I was just telling tall tales when I was drunk. Any real researcher would get real evidence before relying on it' defense - and it really is plausible.)

nicegrrl
08-06-2006, 11:41 PM
Well, what if I make up a name for the secret society, but still use their rituals (which they deny they even do). Like, they brand members after a certain amount of years. Can a real secret society sue me because my fictionalize society does something they claim they dont do? Doesnt that in effect prove they did it?

I want to say that a board member conviced georgetown university to invest their endowment in a risky hedge fund in order to collect money for himself (really happened)- all of that is documented except the person that convinced the university to do this has the easy alibi of "I really thought it was a good investment (maybe he did)". Can I make up a university called "Johnstown University", a prestigious christian university in DC that is connected to many think tanks and politicians? Everyone would know it is GT, but if I dont say GT is it ok? You say it is not, but i dont know if that is fair.

I mean, Wolfe made up "Dupont University" in "I am Charlotte Simons". Most everyone knows the university is supposed to be Duke, but this wasnt a problem. Then again, all he did was expose an imaginary frat for date raping a girl and that's no surprise to anyone.

Also, can I make up an ivy league university? Can I invent a "Caneford University", one of the oldest universities in the US and now a very wealthy prestigious university in New England. Anyone with a brain would know it was Harvard, but technically it could be Brown or Darthmouth.


Oh, and I cant be sued for saying this stuff on a message board. Someone tried that once. Didnt even make it to court.

nicegrrl
08-06-2006, 11:50 PM
"(PPPS: Even if the alleged drug dealer has made the claim himself, that doesn't make it true. Plenty of people have used the 'I was just telling tall tales when I was drunk. Any real researcher would get real evidence before relying on it' defense - and it really is plausible.)"

Yeah, but he'd still have to admit to saying it and i still would claim its fiction. He wont get me on that one.

How about if I diss institutions with general impressions. Brett Easton Elliot got away with that one. Like he would say " people thought Vassar girls are prudes" or "Dalton gils are stupid"- Can my characters present general opinions like "A girl who went from boarding school to Syracuse only cares about partying". It's an opinion of a fictional character presented as fact. The simpsons do this one in every episode, but it's pretty cruel because that is a real opinion.

Mac H.
08-06-2006, 11:56 PM
Well, what if I make up a name for the secret society, but still use their rituals (which they deny they even do). Like, they brand members after a certain amount of years. Can a real secret society sue me because my fictionalize society does something they claim they dont do? Doesnt that in effect prove they did it?
Imagine I wrote a best selling novel about someone called 'niceygrrl', who posts on a message board called 'Absolutely Writers - Water Cooler'. I mention lots of true facts about you, and about 'Perksy' and 'Kathy C'.

Part of the novel is all about how 'niceygrrl' does obscene acts in her spare time.

Plenty of editors, writers and people here read the novel and recognise you immediately. They'll look at what I say, recognise various aspects that clearly indicate that I'm talking about you.

Then when they get to the bit about obscene acts in your spare time, they'll think "Well, the other bits Mac wrote about were true, so that bit must be as well."

All of a sudden, you find that no-one wants to publish your book.

When you sue me, because of the scurrilous lies, I claim "Can you sue me because my fictionalize character does something they you claim you dont do? Doesnt that in effect prove that you DO do obcene acts in your spare time?".

What would be your reply ?


I want to say that a board member conviced georgetown university to invest their endowment in a risky hedge fund in order to collect money for himself (really happened)NO!

It fails the 'attributing motive' test. As you point out, it is perfectly plausible that what you say 'really happened' didn't.


Oh, and I cant be sued for saying this stuff on a message board. Someone tried that once. Didnt even make it to court.Doesn't mean that they can't do it.

And, in fact, they can. It probably won't happen, though, mainly because you aren't claiming anything with credibility.

Mac

Cathy C
08-07-2006, 12:02 AM
Let's put it this way, nicegrrl, you can WRITE anything you want, but whether or not a company would be willing to publish it is the issue. If you push it as fiction, then someone might sue you. If you publish it as non-fiction, they DEFINITELY will (look how many lawsuits are pending against James Frey!)

My best advice is to consult with a publishing attorney before you go any further (if your goal is indeed publication.) There are several agencies that offer free legal advice to aspiring authors. I'll try to find the names and post a link here.

Peggy
08-07-2006, 12:06 AM
Can a real secret society sue me because my fictionalize society does something they claim they dont do? Doesnt that in effect prove they did it? Anybody can sue you, even if they don't have a legitimate claim. If you write it in such a way that people can guess the secret society's identity, they can sue you for saying they perform that ritual if they think they are harmed by the claim.
I want to say that a board member conviced georgetown university to invest their endowment in a risky hedge fund in order to collect money for himself (really happened)- all of that is documented except the person that convinced the university to do this has the easy alibi of "I really thought it was a good investment (maybe he did)". Can I make up a university called "Johnstown University", a prestigious christian university in DC that is connected to many think tanks and politicians? Everyone would know it is GT, but if I dont say GT is it ok? You say it is not, but i dont know if that is fair. If people can recognize it's GT and recognize who the board member is, you bet they can sue you. If you don't have evidence that the motive of the board member was personal gain, he probably could sue you for libel.
Oh, and I cant be sued for saying this stuff on a message board. Someone tried that once. Didnt even make it to court. Did it not make it to court because the judge threw it out, or because there was a settlement? IANAL, but I'm pretty sure the specific circumstances determine the case, and unless you have a good knowledge of the law and the details of the other case, don't assume you are immune. As someone pointed out upthread, the best thing to do is to consult an attorney with expertise in libel law.

Peggy
08-07-2006, 12:11 AM
Yeah, but he'd still have to admit to saying it and i still would claim its fiction. He wont get me on that one. If he can show that others would recognize him as the character, he can indeed "get you".

How about if I diss institutions with general impressions. Brett Easton Elliot got away with that one. Like he would say " people thought Vassar girls are prudes" or "Dalton gils are stupid"- Can my characters present general opinions like "A girl who went from boarding school to Syracuse only cares about partying". It's an opinion of a fictional character presented as fact. The simpsons do this one in every episode, but it's pretty cruel because that is a real opinion. General statements of opinion like that are a lot different than writing a character who is a recognizable board member from a recognizable university doing something illegal.

Peggy
08-07-2006, 12:19 AM
I also meant to add that lots of authors use thinly fictionalized real towns and universities as their settings. The trick is that they don't write thinly disguised "exposes" of real events.

Godfather
08-07-2006, 12:21 AM
Ask yourself,

will they write a book about you?

nicegrrl
08-07-2006, 12:22 AM
They tried to sue *me* and the judge threw it out. They tried to sue me because someone else recognized this person from something I posted and then told that person. You cant do this. Libel cases are extremely difficult to win even in cases of non fiction. Ex, recently a newspaper printed a story about a sex offender and published the apartment building he just moved into. The neighbors recognized him from the story and the sex offender attempted to commit suicide. The newspaper didnt lie, but they didnt have the right to give away that kind of identifying info. They still didnt get successfully sued for anything.

Tell me where I can find legal information from publishers, yes. I dont even know why they would want to talk to me though.

Also, I know a lot of people recognize individual characters from Candace Bushnell novels and she doesnt paint anyone in a positive light. No one is sueing her. And no one from Vogue Magazine is suing whatsername for "Devil wears Prada" even though everyone knows that Miranda Priestly is Anna Wintour.

If there is no book about the legal specifics of writing this kind of fiction, for the layperson someone should really write one.

What if the only identifying information is the illegal or immoral act I accuse them of? Like, say I change the race, location and everything about a person, but then talk about how they sold drugs they procured with NIH grant money for a drug rehab experiment that never happened. You think anyone would dare come forth and say "that was me she was talking about"?

nicegrrl
08-07-2006, 12:39 AM
My next thing is what if I write things that truly are purely fiction but happen to be true about somebody. My book is not a memoir- its a chik lit thriller based loosely on real events (sort of like Devil wears Prada).

Like, I am inventing a character "Gwynyth Horne", a Connecticut WASP whose family has been on the CT social register for 4 generations. Now, I know no such person, but chances are, someone on the CT social reg has that name. I'm also inventing a nephew of Osama Bin Ladin that went to Oxford Univesity and majored in econ. I also know no such person, but what if someone with a similar description actually exists? You think I should nix the Bin Ladin reference and make up another wealthy Saudi family with member who is a notorious terrorist? Who knows. Maybe the Bin Ladin family would sue me for bad publicity. LOL.

nicegrrl
08-07-2006, 08:20 PM
I contacted a lawyer and he said my question sounded straightforward. He said I can write whatever I want about real groups as long as I put a disclaimer in front of the book that the events are pure fiction and any resemblance to real stuff is coincidental.

Cathy C
08-07-2006, 08:27 PM
Unless he was actually an IP (intellectual property) attorney, I'd still be very, very careful. Entertainment law is its own strange animal. Disclaimers are only a DEFENSE against suits, not a "get out of jail free" card. :(

Still, good luck.

JennaGlatzer
08-07-2006, 08:54 PM
I contacted a lawyer and he said my question sounded straightforward. He said I can write whatever I want about real groups as long as I put a disclaimer in front of the book that the events are pure fiction and any resemblance to real stuff is coincidental.

Either the lawyer is an idiot, or you're leaving out some key details.

That statement of his is utterly untrue. You cannot say "whatever you want" as long as you put in a disclaimer.

Yes, it's difficult to prove libel. But not impossible, especially when you're accusing people of illegal acts. In The Devil Wears Prada, no one was accusing Anna Wintour of having a date rape fund. And you're already running your mouth off publicly about who these people are and what you're really trying to do here. Just because a judge threw out one case does NOT mean you can't be sued for things you write on a message board (or elsewhere).

nicegrrl
08-07-2006, 09:23 PM
Im going to contact an entertainment lawyer. I dont know what kind of lawyer would handle this kind of suit. Anyways, has opus dei sued Dan Brown? If they dont have a case then no one does.

Anyways, I was just going to write that the society settled with several girls for date rape cases. No one can get me on libel for that one because it's true.

And the movie, "Skulls", a clear reference to "Skull and Bones" at Yale used the real Yale university and accused the members of several illegal acts. The musical "The Rothschilds" accuses the real Rothschild family of the famous conspiracy of using banking power to control the world. I mean, if these people didnt get sued, Im thinking that what I am doing is ok.

Im going to ask the society itself what they think.

nicegrrl
08-07-2006, 09:33 PM
Ok, Im doing more research and basically everything I see tells me that winning a libel suit against fiction is an extremely rare thing and people often lose even when the character has the same name as the real person.

Peggy
08-07-2006, 10:13 PM
nicegrrl are you self-publishing or planning to send your manuscript to a commercial publisher?

If the latter, I would let the publishing house's lawyers make the determination of whether your story is fictionalized enough. They certainly would have the appropriate expertise.

If you are self publishing, you should keep in mind two things:
- just because Opus Dei didn't sue Dan Brown, that doesn't mean the group you are describing won't sue you.
- just because such cases have been thrown out in the past, it doesn't mean that a suit against you would necessarily be thrown out. Defending yourself in court is expensive, even if you are in the right.

You might want to read these:
http://www.pma-online.org/scripts/shownews.cfm?id=559
http://www.firstamendmentcenter.org/Speech/arts/topic.aspx?topic=libel_fiction
http://www.fac.org/speech/arts/topic_case_resources.aspx?topic=libel_fiction&printer-friendly=y

It's not just what you write about, but how you write it that is important. I'm not sure an attorney could determine whether your manuscript could be considered libelous unless she's read it.

JanDarby
08-08-2006, 01:41 AM
winning a libel suit against fiction is an extremely rare thing

First, it's not about winning or losing; it's all about the risk, and the cost associated with that risk. Defending against a libel claim can be every bit as expensive as the judgment itself and is often more expensive than the money owed to the Plaintiff. Some libel/slander judgments are for One Doller, but the legal fees incurred in defending the case can be tens (if not hundreds) of thousands of dollars. Publishers don't want to assume this risk, which they would do by publishing something without regard to its defamatory nature, notwithstanding the contract provision that requires the author to indemnify them.

Second, while it might be possible to research the frequency and judgments of awards for libel and related torts (although I can't think of an official resource that provides that information), that's a tiny fraction of the picture, since a good 90 percent of all civil cases are settled prior to trial, many before an official lawsuit is begun, when only an unreported and untraceable insurance claim has been filed, and, except perhaps for a few attorneys who specialize in this type of case and can use their own track record to generalize from, there's absolutely no way of knowing the overall odds of success in those situations.

It's never a good idea for a non-lawyer (or even a lawyer acting outside his/her specialty) to render opinions on legal risks. Plus, the risks vary depending on the exact facts of a case, so a generic question can't be answered with any real value. Before anyone -- lawyer or not -- can render an opinion on the legal risks of your story, it has to be written first. And then read by the lawyer.

At the moment, the whole discussion is moot. You haven't written the story yet. Write the book, and then submit it to a publisher (where the publisher will have it vetted by an attorney before they go to contract), or have it vetted on your own, before submitting, by an attorney who has extensive experience with defamation litigation (not entertainment law; that's usually more related to the contract for the sale of rights than to the substance of the story). If he/she says there are legal-liability problems, then you can rewrite it. If not, you can submit it the way you wrote it originally.

JD, not giving individual legal advice, just general legal information, and, as always, it's a good idea to consult an experienced attorney in the appropriate field before engaging in potentially risky behavior.

Cathy C
08-09-2006, 01:12 AM
Speaking of recently won libel suits against an author and publisher...from today's Publishers Weekly (via Miss Snark's blog (http://misssnark.blogspot.com/2006/08/department-of-good-news.html))

nicegrrl
08-10-2006, 07:10 AM
Oh woe is me. After a year of being left alone, the man who inspired a villain in my novel called me. I was truly scared stiff.

expatbrat
08-16-2006, 11:05 AM
Isn’t it ridiculous all this silly suing left right and centre. I saw in today’s SMH someone suing Starbucks for getting hot coffee on their foot! Yes, coffee is hot, if you do not want hot coffee then Starbucks is not really the place for you.

When did we stop taking responsibility for our own actions and the reactions these provoke? Someone is stealing fetus and you have to worry that your mentioning of this may cause him to sue you. That is ridiculous. He did the actions that put him in the position that someone could reveal his actions. And our society puts HIM in a position of strength – crazy crazy crazy!

It is one thing I love about Thailand – the total lack of the Lawyers-ruling-the-world lifestyle. A bloke fell when he rode his motorbike into a pothole, he got himself some nice big medical and mechanical bills. This week he wrote into the papers asking who to sue. The editors laughed at him, stating; if that was possible the Thai’s would be falling off their bikes all over the place. But in the west you really could find someone who SHOULD ensure every single road is bump free and perfect and punish them heavily for a mistake. I am wondering if I will ever be able to return to living in the west... The fact this is a real and important discussion blows my mind.