Standard writing advice is to write what you know, but the new novel in your head screams out for an arrogant protagonist; a self-absorbed manscaper with a short temper and a roving eye. The perfect model just so happens to walk, talk, and look like your boss. Can you kill him with literary abandon? If you do, will you get sued? Wouldn’t it be great if you didn’t? When diving through murky legal waters, the first things you need to know are the definition of defamation and invasion of privacy.
Defamation of Character
Defamation means you gave someone’s character a severe black eye. Calling a person a butthead in print isn’t enough for defamation. It’s merely an insult, and, well, sticks and stones can’t break bones or get you sued. Any accusations must be blatantly untrue and the writer must act with obvious malice. An important point to note is a defamatory statement contains specific details. The person in question must be easily identifiable so that a reasonable individual can draw a connection between the literary creation and the real thing. Inventing a character with the same personality as your boss is fine. Giving him the same physical appearance, quirks, nickname, weird birthmark, shoe size, home address, and then calling him a probable serial killer, possible arsonist, and likely body snatcher is a no-no. The court may take a dim view even if you make it clear this is only your impression. It’s like yelling “Fire!” in a crowded theater. If people get trampled in the stampede for the exit you can’t shrug it off and say, “The fire was only my opinion.”
Invasion of Privacy
Invasion of privacy makes a writer sound like a Peeping Tom, but all it means is that facts have been revealed that are “not related to public concern.” In this day of show-all/tell-all this one rarely makes it to the courts, and most legal cases are in connection with memoirs or biographies. Interestingly enough, the courts generally accept a legitimate public interest exists simply because a publisher elected to publish a book. If Simon and Shuster says it’s in the public interest to read this thing, then dang it, it is. Spilling the beans in your biography that Aunt Maude ran a Ponzi scheme will more likely net a public service award than a summons. Telling everyone how your cousin, Henry, started life as Henrietta might get you booted from family reunions, but not sued. (And wouldn’t it make a dandy Lifetime movie.) However, revealing the local high school principal has sealed juvenile arrests for prostitution and drug convictions is another matter. The information has nothing to do with the stellar law-abiding citizen she is today and could irreparably harm her career and ability to earn a living.
How often do authors get sued? Not much, and most cases involve writers who aren’t self-published. The legal precedent on self-publishing is murky since no independent third party publishing house designated your book as a legitimate public interest prior to publication. Therefore, public interest may be more difficult to prove in an invasion of privacy lawsuit. On the plus side, most self-published authors aren’t famous. The odds are your boss will never draw the connection.
Until the courts come down one way or the other, here’s a few tips to keep out of the big house and that tasteful orange jumpsuit.
- Disguise characters. Changing physical descriptions isn’t enough if the person’s identity it still blatantly obvious to everyone in the community. Show, don’t tell.
- Use parody and satire. No one ever sued Saturday Night Live, and have you seen what’s on the internet? They even use real names. Insult is not legal grounds for a lawsuit.
- Get signed releases. This includes business owners if their companies feature prominently in your story. This is surprisingly easy as most people are thrilled to be in a book. I had several elderly church-going relatives vigorously campaign to have me use their name for a dead prostitute. Auntie Loretta won.
- If you’re writing a memoir or autobiography don’t forget people remember things differently. A few kind words at the beginning of a book about how this is your impression of events might do a lot to assuage hurt feelings and keep legal trouble at bay.
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L. A. Kelley writes scify/fantasy adventure stories with humor, romance, and a touch of sass. She hopes one day to be successful enough to sue for defamation of character.