How far do I go?

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
Writing a book about a 20th century woman, as historical fiction. I'm pretty sure she was gay and partnered though I can't find any mention of it through her diaries except when referring to certain people by initials and others full names. i.e. "I wrote to CL today" with a little smiley face. Have not been able to get a response from any family members and am researching work acquaintances--she herself died in the 1970's and most of her peers would be gone as well. How far should I push this? It would be a very interesting aspect of her personal life but it gives me pause. Any suggestions or opinions?
 

Maryn

Sees All
Staff member
Super Moderator
Moderator
Kind Benefactor
Super Member
Registered
Joined
Feb 12, 2005
Messages
55,320
Reaction score
25,290
Location
Snow Cave
I suspect that any advice you got here about how far you can take your theory could be construed as legal advice, which we cannot give (since it opens the site to legal liability).

It's like so many things: if you need to know the legal limit, you need an attorney.
 

fenyo

Super Member
Registered
Joined
May 17, 2018
Messages
96
Reaction score
7
I am not an attorney. so for the site sake I will not give an advice.

But I will say that I am appalled that in an historical FICTION a legal advice is needed in order to know what can be written.
 

Elenitsa

writing as Marina Costa
Super Member
Registered
Joined
Sep 20, 2011
Messages
973
Reaction score
759
Location
Bucharest, Romania
Website
caribbeandawn1720.jcink.net
I think you can write anything in historical fiction. Not in historical chronicles, which are non-fiction and must be always based on facts. Therefore, I don't understand why would you need LEGAL advice, unless it's only something basic, as researching for a lawyer character.
 

angeliz2k

never mind the shorty
Super Member
Registered
Joined
Feb 24, 2008
Messages
3,727
Reaction score
488
Location
Commonwealth of Virginia--it's for lovers
Website
www.elizabethhuhn.com
Well, since this person died within living memory, there might be relatives who feel that portraying her as gay is libel. I think that that's what the concern is. Correct?

That's a legitimate concern. You might be able to win that battle (free speech and all), but it might not be one you'd want to have (beaucoups bucks and all).

I mean, as far I'm concerned, you can interpret the historical record how you want. But my personal feeling on the matter has nothing much to do with the law or how others will see it.

Any chance of making this a fictional character based to some degree on the real person?
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
Wow, I didn't even consider this. An atty to write fiction? yikes. But I see where you are coming from. I have some close friends who are attys so I will ask them. When I think of all the people who write slanderous books about living people and push them as fact, it's disheartening to consider that I may not have free rein with this. I just wanted to honor her more than dishonor her. Thank you for answering!
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
I think you can write anything in historical fiction. Not in historical chronicles, which are non-fiction and must be always based on facts. Therefore, I don't understand why would you need LEGAL advice, unless it's only something basic, as researching for a lawyer character.

I feel this way as well. If no one will tell me what her preference was in that day, don't I get to choose?
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
I have been thinking about shifting to a purely fictional representation but she did a specific thing and that thing is well known. There would be no doubt it's based on her but I am not trying to make being gay a bad thing, rather the opposite. If she had been gay, I would like to think she would be happy to come out this way. I have reached out to family as well--have an acquaintance whose husband was a direct relative but so far, no response. Pure fiction is so much easier, so much freer.
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
I spoke with a friend who is an intellectual property atty and asked this question. I figured I'd post his answer in case it helps someone else. He said that, because my party has been dead for over 40 years, the family members who sued would have to prove defamation. In order to do that there would have to be some monetary loss to them/the estate/a company. This particular notable person is not associated with a product though, of course, anyone can sue. At this point, I'm going to write what I want to write and if I have to change it later, I'll adjust.j
 

angeliz2k

never mind the shorty
Super Member
Registered
Joined
Feb 24, 2008
Messages
3,727
Reaction score
488
Location
Commonwealth of Virginia--it's for lovers
Website
www.elizabethhuhn.com
Well, trust the attorney! As he said, though, they can sue any old time they please. They might lose, but they can still sue. And above and beyond that, they can make their displeasure known outside the court of law.

Of course, this isn't an issue if it's never published, and it may not be an issue even then. If you are compelled to write it, write it.
 

CWatts

down the rabbit hole of research...
Super Member
Registered
Joined
Mar 4, 2013
Messages
1,751
Reaction score
1,221
Location
Virginia, USA
So glad you have an answer and are proceeding with your work!

The 40-year window is interesting. There are many entertainers who passed that long ago whose estates are still big earners - so writing that Elvis was a Russian spy or something could still be risky.
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
Well, trust the attorney! As he said, though, they can sue any old time they please. They might lose, but they can still sue. And above and beyond that, they can make their displeasure known outside the court of law.

Of course, this isn't an issue if it's never published, and it may not be an issue even then. If you are compelled to write it, write it.

Ha! Isn't that the truth!!!
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
So glad you have an answer and are proceeding with your work!

The 40-year window is interesting. There are many entertainers who passed that long ago whose estates are still big earners - so writing that Elvis was a Russian spy or something could still be risky.

She was not an entertainer, just a person with a known name. He also mentioned that it started with Elvis but his estate makes tons each year. I do think that if I wrote this character as gay, she may actually become more popular in the end.
 

cornflake

practical experience, FTW
Super Member
Registered
Joined
Jul 11, 2012
Messages
16,171
Reaction score
3,734
I spoke with a friend who is an intellectual property atty and asked this question. I figured I'd post his answer in case it helps someone else. He said that, because my party has been dead for over 40 years, the family members who sued would have to prove defamation. In order to do that there would have to be some monetary loss to them/the estate/a company. This particular notable person is not associated with a product though, of course, anyone can sue. At this point, I'm going to write what I want to write and if I have to change it later, I'll adjust.j

That response, as you posted it, makes no sense. You can't defame the dead, and there's no specific window in which you can. There's a right of publicity, which in CA goes for like 70 years, but relatives can still sue you regardless of if you think you're right or will win a case.

I mean in a general sense, no, you don't 'get to choose' her orientation. It was whatever it was and playing the 'she would've been happy....' game when you didn't know her is specious at best, imo.

Write what you want, but yes, consult an attorney who actually specializes in this, and be aware you can be sued into oblivion regardless.
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
That response, as you posted it, makes no sense. You can't defame the dead, and there's no specific window in which you can. There's a right of publicity, which in CA goes for like 70 years, but relatives can still sue you regardless of if you think you're right or will win a case.

I mean in a general sense, no, you don't 'get to choose' her orientation. It was whatever it was and playing the 'she would've been happy....' game when you didn't know her is specious at best, imo.

Write what you want, but yes, consult an attorney who actually specializes in this, and be aware you can be sued into oblivion regardless.

This attorney DOES specialize in this, intellectual property. He owns practices in four states. You can defame the dead but, according to him, there has to be a monetary impact in order for them to win.That said, I am a writer who leans towards kindness and empathy. I have gotten to know this character through her diaries and her writings, I do think she would be okay with this. I'm sorry you feel differently. But, of course, you are correct, I don't really know but hopefully the family will reach out through the channels I have to confirm or dispel that idea.
 

cornflake

practical experience, FTW
Super Member
Registered
Joined
Jul 11, 2012
Messages
16,171
Reaction score
3,734
This attorney DOES specialize in this, intellectual property. He owns practices in four states. You can defame the dead but, according to him, there has to be a monetary impact in order for them to win.That said, I am a writer who leans towards kindness and empathy. I have gotten to know this character through her diaries and her writings, I do think she would be okay with this. I'm sorry you feel differently. But, of course, you are correct, I don't really know but hopefully the family will reach out through the channels I have to confirm or dispel that idea.

This isn't about intellectual property. You can't defame the dead.
 

angeliz2k

never mind the shorty
Super Member
Registered
Joined
Feb 24, 2008
Messages
3,727
Reaction score
488
Location
Commonwealth of Virginia--it's for lovers
Website
www.elizabethhuhn.com
I know VERY little about these things, but I can say I've never heard about this 40-year window. But the important thing is, as I've said twice, that these folks CAN sue. If you reach out to them, that's a nice gesture, but 1) they have no obligation to respond and 2) they STILL might not like it.

Just . . . proceed with caution.

Honestly, if it were me, I'd use this person's life as a starting point and write something new.
 

mrsfauthor

Super Member
Registered
Joined
Dec 30, 2017
Messages
101
Reaction score
12
Location
Northeast USA
I know VERY little about these things, but I can say I've never heard about this 40-year window. But the important thing is, as I've said twice, that these folks CAN sue. If you reach out to them, that's a nice gesture, but 1) they have no obligation to respond and 2) they STILL might not like it.

Just . . . proceed with caution.

Honestly, if it were me, I'd use this person's life as a starting point and write something new.

Thank you for your thoughtful comments. I may just do that!