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.
