Authors: Don’t Roast Weenies Over Your Books
By Scott D. Zachary
So you’ve just finished your first fiction novel. Congratulations!
Perhaps you poured in as many as 3,000 hours of your life creating it without any certainty of financial profit. Maybe you had to work nights and weekends, working and writing around a job to get it done. You might have said, "Who cares if my book sells? It’s a miracle that I managed to ‘write away’ my animosities and resentments toward real unnamed villains in my life. I’m a much healthier person mentally because of it."
You probably feel good about your first book because you wisely took all the necessary precautions against being sued for defamation, libel, or any other such nonsense. Although there are many, many circumstances in your book that are identical to your real-life experiences, you’ve gone so far as to change all the names and locations, as well as including a "pat statement" at the beginning of your book, ‘dis’claiming it to be fictitious. Besides, your novel’s story is substantially different, overall, from real life events.
And suppose that everyone has told you that they thoroughly enjoyed your book. Some might have said that it has best-seller potential. I’m sure that many readers are able to identify with the unsung tragedies that you’ve illustrated.
Now, further imagine that you’ve just pushed your budget and purchased 500 advance copies of your brand-new book to give away to galley reviewers and for promotional purposes. Then what should you do? Unless you enjoy the prospect of being the defendant in a civil lawsuit where millions of dollars are at stake, I, Scott D. Zachary recommend that you shred and burn those 500 books. Invite a few close friends over and have a cookout—roast some weenies and marshmallows. In my opinion, it’s time for a major rewrite.
Daniel Steven addresses this hypothetical writer’s potential pitfall concisely on the website www.publishlawyer.com, where Daniel says:
"One of the questions I frequently receive is ‘May I use real people, or characters based on real people, in my writing?’
"Well, maybe. As with so much in the law, there is no simple answer. When you write about real, live people you expose yourself to legal liability—even if you tell the truth. And simply changing the names is no solution if the person can be identified by circumstances, appearance, or setting. Yes, disclaimers may help, but you can’t rely on them."
Title: "When Truth Is No Defense" 
Author: Daniel Steven
While we’re on the subject of disclaimers, the following website highlights the fascinating history of disclaimers and provides a "thumbnail sketch of the evolution of libel law and its application to literary works." http://www.redlandsfortnightly.org/mcdonald01.htm Some of the disclaimers are hilarious; some clearly project the writer’s anxiety with regard to potential lawsuits. I love the one that says: "Any apparent similarity to real persons is not intended by the author and is either a coincidence or a product of your own troubled imagination . . ."
Joe Klein, author of best-selling Primary Colors, is well aware of the legal whirlpool that a fictional writer can get sucked into. Klein accompanied presidential-runner Governor Clinton on a campaign stop at an adult literacy program in Harlem where a female librarian, Daria Carter-Clark, conducted their tour. Klein later wrote his novel, Primary Colors, in which he described a fictitious southern governor, who just happened to be running for President of the United States. Like Clinton, the fictitious Governor Stanton also visited an adult literacy program in Harlem, which was run by a female librarian.
Klein apparently embellished his real-life experience by writing in his book of fiction that the librarian was seen departing a motel room with the fictitious governor. Even though Joe Klein had changed the names, Carter-Clark sued Klein and his publisher, Random House, for $100 million, claiming that the book’s portrayal caused her humiliation and embarrassment. Carter-Clark’s perceived impression that Joe Klein had damaged her reputation is still in the domain of the courts.
In my opinion, even if he wins the case, Mr. Klein might have avoided the entire ordeal had he written "Atlanta" instead of "Harlem." Perhaps he should have described the fictitious Baum as a "Bookmobile driver" instead of a "librarian." Humor aside, I’m sure that Joe Klein would change a few words in his book if he had it to do all over again, because I doubt that his intent was to malign that well-meaning librarian.
The following pertinent quote written by Ellen Alderman and Caroline Kennedy in the Columbia Journalism Review may change your mind with regard to writing about people that you know, especially if you describe them as immoral or criminal:
". . . A reader submitted a short story to Seventeen’s ‘New Voices in Fiction’ series. Seventeen published the story, identifying the author as Lucy Logsdon ‘from southern Illinois.’ The story told of a fight between the narrator and a high school classmate, identified as ‘Bryson,’ who is described as a ‘platinum-blonde, blue-eye-shadowed, faded-blue-jeaned, black-polyester-topped-shriek.’ At one point, the narrator also refers to Bryson as a ‘slut.’
"Enter young Kimbery Bryson, also of southern Illinois, who says she is the Bryson in the story. She also says that calling her a ‘slut’ in a national magazine is defamatory and places her in a false light. She sues the story’s author and Seventeen’s parent company, Rupert Murdoch’s News America Publications, Inc.
"Like Carter-Clark, Bryson claimed that she was defamed because she was portrayed as promiscuous. Like Joe Klein, the novice author’s primary defense is that she wrote a work of fiction. Two lower Illinois courts agreed and dismissed the claim; one declared that ‘slut’ was merely an opinion uttered by ‘a fictional character about another fictional ` character.’
"But the state’s highest court reversed those decisions and ordered that the case go forward. The Illinois Supreme Court brushed aside the label ‘fiction’ and said it was reasonable for people who knew the real-life Bryson to conclude that she and the fictional Bryson were one and the same. The court relied heavily on the use of the same unusual name and the setting in southern Illinois . . ."
Columbia Journalism Review [July/August 1997]
Title: "Can a Journalist’s Novel Be Libelous?"
Authors: Ellen Alderman and Caroline Kennedy
It’s clear that the best defense is the truth, if in fact you can prove the veracity of every sentence of your book in a court of law. However, the truth can also be deemed defamatory, especially in the case of a private individual. Many states have right-to-privacy laws, protecting a person’s private affairs from being revealed to the world. So, you might want to avoid writing about your mother-in-law’s lack of financial responsibility. If you insist on doing so, at the very minimum, change her name and the town where she lives. I would also characterize her in such a way that no one—in his right mind—could identify her. And I certainly wouldn’t describe her as anyone’s mother-in-law in your book.
At some point, this discourse becomes silly. Of course, writers write what they know. It goes beyond ludicrous to consider the idea that a writer could write something that he or she doesn’t know. That would be tantamount to saying: "I think; therefore, I am not." The key is to sculpt characters and build events in your book that are a conglomeration of many people and experiences.
The following websites provide more helpful information:
Welch v. Penguin Books went all the way to the New York Supreme Court in the early 90's, and the writer won. However, the tide seems to have turned against writers to some degree since then. And New York’s courts seem to be more supportive of writers' First Amendment rights than some other states.
Publishers Marketing Association’s website has a well-written synopsis about "Defamation Dangers."
This is another web page with some good advice about defamation for fictional writers.
The above listed website is a good reference, which proves that "labeling a story fiction does not insure immunity If A Reasonable Person Would Conclude That the Fictional Character Was a Portrayal of The Real Thing."
If you haven’t gotten a clue yet, Kerrie Droban's Legal Tip of the Month might cinch your weenie roast (as it did mine): "Never write about people you know in your novels because you can get sued!"
Someone, whom I think highly of, summarized my thoughts on the subject of potential defamation lawsuits in fictional writing when she said: "And besides, who needs it?"
The writer of this article, Scott D. Zachary, is also the author of the award-winning thriller novel, Scorn THIS, published by Llumina Press—available in October 2003. Advance orders may be placed at Llumina’s toll-free number: 866-229-9244.