Lawsuit-Free Writing in Lawsuit-Happy Land: Is It Possible?

I’ve covered the contracts you need to know about once you’re done with the writing process—the publishing contract, the agency contract. But what about legal issues pertaining to the actual writing itself? Remember those warranty and indemnity clauses in the contracts? What exactly do they mean? How do laws surrounding copyright and related issues affect you and your writing?

We’re lucky to live in the United States; we have a more lenient policy when it comes to free expression. The right to express ourselves is protected by the First Amendment to the Constitution, which prohibits, amongst other things, laws that prohibit freedom of speech and freedom of the press. But, like anything else, there can be some exceptions to this rule.

The way copyright law is structured is such that it works in tandem with the First Amendment to create a balance: ideas can be freely exchanged amongst U.S. citizens while the creator/expresser of these ideas is simultaneously protected from having his or her ideas used illegally (infringement, plagiarism, and such). So you, as a writer, can say pretty much anything you want (thanks to the First Amendment) and you, as a writer, also have the ability to protect and exploit what you’ve said (thanks to the Copyright Act).

But writers can face some issues when they’re writing about real-life people, whether the book is considered fiction or nonfiction. Although the First Amendment protects a writer’s right to freedom of expression, writers must be careful if they’re writing factually about other people—even if they’re just basing a fictional character on a real person’s personality traits or experiences.

Here are some things writers should be aware of when they’re using real people in their writing. (Once again, I disclaimer myself by saying that I’m just making you aware of legal issues and I am offering some basic suggestions, but in no way am I offering you legal advice; contact a lawyer for that!)

Using real people in writing, especially in nonfiction, is unavoidable. Newspapers, reference books, biographies--all would be impossible if writers weren't permitted to write about real people. The whole point of nonfiction is that the reader assumes the truthfulness of what is being written. What happens if a writer doesn't write the truth? What is it okay to reveal and what isn't okay? These questions regard defamation.

Defamation is the act of hurting a person's reputation by making information about that person known to the public. When referring to defamation done through the written word or through broadcast, it is termed libel. (Slander defines spoken defamation.) There's actually no federal law governing libel, so each state has its own variation on how it handles libel suits.

What constitutes libel? Like everything else regarding intellectual property, there are no clear-cut answers to this question either, but here are some questions to consider in determining whether something is libelous.

Is the statement true? If so, it's not considered defamatory. Lies, however, are defamatory. George W. Bush is an unpopular president is true; numerous polls support this fact. George W. Bush is really a woman in disguise is false, unless anyone out there is willing to get really adventurous to prove it true.

Is the statement conveyed as a fact? Something conveyed as a fact is more likely to be ruled as defamatory. Opinions, however, are protected under the First Amendment. A restaurant reviewer can thus say that she believes the chef at Joe's Diner doesn't make very good food, because that's her opinion. However, she can't say that the chef at Joe's Diner obviously intends to poison every customer at the restaurant with the horrible food. She may believe it, but that wanders into defamatory territory.

Is the statement published? If the statement hasn't been seen by any third party, it's not libel. For instance, the food reviewer may write a private note to the chef saying, "You're trying to poison me!" But unless that food reviewer makes that statement known to the public, in a newspaper or magazine, the statement isn't libelous.

Is the person in the statement identifiable? Just omitting a name won't get a writer off the hook. Identifying details, such as gender, physical traits, personality characteristics, occupation, and so on are often enough to clue people in on the subject. A reporter standing outside a school on the same day that salary cuts have been made sees a teacher storming angrily out of the school. The reporter doesn't ask the teacher the cause for his anger, instead assuming that it's because he'll now be paid less. When considering the reporter's article, the potentially untrue statement "A teacher at the school was unhappy with the pay cuts" is a lot harder to prove as libelous than "A music teacher at the school was unhappy with the pay cuts, especially after he'd worked at the school for seven years." Those details in the second sentence make it much easier to deduce who the person is.

Has the statement caused real harm to the subject? Perhaps the person was fired from his job, was served a divorce by his wife, or just had his reputation damaged. Perhaps none of these things happened but the publisher had enough reason to believe the statements were defamatory--and published them anyway. That's also grounds enough to be considered as causing injury to the person. But what if all that happened was that the person got extremely pissed off? They may not win the injury card, but they can win by accusing the writer of mental anguish.

Of course these are rather general and sweeping guidelines here and there are exceptions to everything, but they're a good basis for understanding what sorts of things constitute libel.

Another important factor in determining libel cases is a person's status as a public figure. An interesting equation governing libel suits is that the more famous you are, the less you're protected. This is because it is assumed that a person understands that by becoming a more public figure, he or she will thus be more regularly covered in the media and exposed to the public. The public has more of a right to know what's happening in a public figure's life and thus the press has a right to report on it. And a a person's fame increases, so too does the right of the press to criticize that person's behavior and character. The law even oftentimes becomes more lenient towards those who may inaccurately report information about a public figure. So in order for a public figure to prove libel, he or she must prove that there was "actual malice" involved in the defamation--meaning that damaging falsehoods were intentionally printed as fact.

What if someone's dead? Can you happily blast away at them? While it's true that you can't be sued for libel by a dead person, that person's surviving family members, for instance, can sue you for the mental anguish you're causing them.

Ah, you say, but I'm a novelist. I write fiction. None of this pertains to me.

To which I reply: Ah, but it does!

What drives a great novel? Great characters. And where do great characters come from? The depths of the author's imagination. Okay, I'll buy that, but how did the author's imagination come up with them? Real life. Authors use elements of real people--quirky habits, personality traits, physical characteristics, likes and dislikes, experiences--to build characters and their storylines. These novels are known as roman à clef, meaning that fictional characters and storylines are based on real ones. Doing something like using one or very few details from real life doesn't count. Your friend always wears knee socks with Birkenstocks, say, or always says, "You can dig that, right?" after every question and you attribute this to one of your characters--that's not really problematic. Where the problem does come in is when you heavily base a character in your book on a real person and have that character doing negative things--or even have that character exposing negative things the real person did. Just changing the name and a detail or two won't always protect you. In the case Bindrim vs. Davis, the novelist and defendant, Davis, visited a psychologist named Bindrim during one of his therapeutic bath sessions. She basically changed a few details around, but ended up making the doctor and his practice easily identifiable, even reproducing exact lines of his speech that she had recorded. Things ended pretty poorly for Davis, especially when her publisher turned on her by enacting the warranties and indemnities clause to recoup some of the money it lost during the lawsuit. Read the article; it's interesting stuff, though I sadly can't get into the ethics of publishers turning on their authors in this particular entry. It just goes to show that you can't be too careful, even if the story you're writing has the word "FICTION" emblazoned on the front.

But even the most private individuals can sue you if they're identifiable as characters in your novel, and this is because of their right to privacy. What if a friend confides a particularly embarrassing or painful secret to you, and you think, wow, this would make a great dramatic twist in my new novel. So you insert a character with a painful secret into your novel. You changed the character's name and the fact that she lives in Brooklyn (your character now lives in Queens), but other than that, you couldn't change much else or the painful secret part wouldn't work. That's an invasion of privacy. The secret your friend told you was previously unknown, but now all your mutual friends have bought your novel and figured out who the character was. The secret also wasn't of general interest to the public, since it concerned a private, relatively unknown individual whose personal business was important to no one else. Just because your book carries that "This is a work of fiction... resemblance is purely coincidental" clause at the beginning (you know the one I'm talking about; pick up any novel and take a look at the copyright page) doesn't mean you're protected. The publisher puts that there to cover his bum on the assumption that by signing your contract, which included the warranties and indemnity clause, you verified that the material in the book wasn't going to, among other things, expose your friend's secrets under the guise of a "fictional" character. In this situation, looks like you're in a heap of cow dung.

Okay, then, you say. I'll just stick to writing about public figures in my novels since I can have a little more leniency with those. But just when you thought you were off the hook, here comes something else to worry about: the right of publicity. This is a person's exclusive right to use, or to prevent the use of, his or her name, likeness, or aspects of his/her persona for commercial gain (with "persona" here meaning aspects of a person's character perceived by others). It's sort of like the right of privacy but for better-known people. By using another person's persona or an aspect of it without authorization, you could be leaving yourself open for a right of publicity claim. Once again, there's no federal law governing this, so the way it's handled tends to change from state to state. A person can't sue for an invasion of right of publicity if the use of their name or likeness is cursory or if there's something newsworthy going on attached to this person that's of general interest. (There goes that First Amendment again.) But if the person's name or image is being used for commercial gain, like to sell a product or service, and the person didn't authorize it, then the trouble begins.

Like all other areas in publishing, this one's laden with gray. Use of a persona is allowed editorially: for use in the news, in a scholarly way, or for reasons of historical, cultural, educational, and/or public interest. Don't worry, fiction writers, you haven't been forgotten either: it's okay to an extent to use names or likenesses in fiction that incorporates real people. Basically, as long as the goal of a work is artistic or to inform the public of something that would interest them, rather than being solely for economic gain, it's generally permissible.

Oy vey, you say, and throw up your pen (hopefully not word processor) in despair. What can I write then, if I'm constantly afraid someone's going to sue me for something? The publishing scene may look even more discouraging now, or downright bleak, but take heart. There are things you can do to protect yourself. No method's foolproof, but here are some ways to reduce the risk.

Fact checking is invaluable. Get proof for everything you possibly can. You might think that New Yorker-style fact checking is extreme (Harold Ross had his fact checkers verifying the location of the Empire State Building), but in this lawsuit-happy era, it seems like you can never go too far to verify a fact. Also be aware that in libel cases, the amount of time a writer had before publication counts. The more time a writer had to fact check something, the more accountable he is. A newspaper writer is up against a daily deadline; a biographer often has months or even years to complete a project. The newspaper writer has far less time to fact check; thus, he would more likely get off the hook than would a book author.

To reiterate the importance of never assuming, here are some assumptions that can get writers into trouble: accusing someone of a crime without proof of conviction; associating someone with a group (especially an unsavory group like a cult) without proof of association; describing someone's incompetence instead of describing the situation; accusing someone of unchaste or sexually unscrupulous acts.

If you're in doubt about whether you should publish a particular story, consider it from an ethical standpoint. Is the subject a public figure or a private one? If the person is a private figure, consider whether his or her activities are of general interest to the public. If it's an older news story involving private figures, like a decades-old unsolved murder case, consider whether the story is still of interest to the public. If the story has been forgotten by the general public and is particularly scandalous, dredging it up again could be grounds for a suit. Make sure you fact check everything you can. Knowing that public records about the person and/or events you're describing are readily available, and using them, may make you less liable for libel.

If you're writing fiction and are basing a character on a real person, try to keep that character minor and use as few identifying details as possible so that the character can't be recognized as a real person. Change identifying details or mix up several real people's identifying characteristics. Or try sticking to using public figures, although they can claim that their right of publicity has been invaded. You can also stick to writing about a dead person, private or public, but be aware that if that person can be identified, you can be sued for mental distress. And also be aware that suits are on the rise involving similar names. So if you're going to write about a concierge who works at the Four Seasons named Larry who is a serial killer by night, you should check with the Four Seasons to be sure that such a person doesn't work there. Again, it's always best to cover your bum by checking your facts and being overly careful than to leave your bum exposed and ready for a good, swift kick.

Also know that many larger publishers have a legal department that will assist them in determining if any parts of your book could pose future problems. If you're working with a smaller publisher or are self-publishing, it might be worth your while to invest in the services of a lawyer to read your manuscript and identify any potential problem spots. For instance, a local publisher is planning to publish a fictional book by "Fake Steve Jobs" that is a spoof on the real Steve Jobs (Apple CEO) and his life. The book is so obviously a parody, and the material is fictionalized and marketed as such, so it got the legal okay. But if the book tried to pass itself off as nonfiction--say, if the cover said "Steve Jobs" instead of "Fake Steve Jobs" or if the book didn't brand itself as being fiction--well. Things would hit that proverbial fan.

Chances are, if you're writing about other people, you're going to say something that's going to offend somebody (which isn't always a bad thing). Make sure you're aware of the problems you could potentially be up against and use a little common sense to guide you during the writing process. If something feels like it might cause a problem, seek help from a professional (like a lawyer) before someone else decides to turn it into a problem. Yes, we live in a lawsuit-happy society, but we also happen to live in a country that values its free speech (though post-9/11 some may contest this) so proceed with caution but don't let the fear of a lawsuit keep you from proceeding at all.


BOOKS THAT ARE USEFUL:

How to Be Your Own Literary Agent, by Richard Curtis (again).

The Writer's Legal Companion, by Brad Bunnin and Peter Beren. One's a lawyer and the other works in the publishing biz. A dream team.

Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans. A pair of attorneys spell everything out rather clearly. They even include a handy CD-ROM with copies of all the appropriate copyright forms and etc. that they refer to within the book that you can print out.