Tuesday, September 1, 2009

Legal Issues for Fiction Writers: Defamation 101

Admit it, you know you’ve done it, created a “fictional” character who is so much like your Aunt Betty you’ve been afraid to show the story to anyone in your family. Few of us go as far as Thomas Wolfe, who didn’t bother changing the names of the real people on whom he based his characters, but we do steal mannerisms, bits of dialog, exciting incidents, and unusual physical characteristics from the real life people we know. Sometimes we distort and change things around so much we no longer even remember which parts are based on fact and which parts we made up.
Fiction writers are not as likely to be sued for defamation as writers of non-fiction, but we aren’t immune, either. I’m going to give you some general rules about what is and is not considered defamatory in fiction. Any first year law student will tell you that for every rule there are exceptions, so as you read, insert the words “in general” before every sentence, and remember not to consider this blog piece as legal advice–consult your own attorney if you have specific questions. (How’s that for a disclaimer?)
One nice rule to remember is that you cannot defame a dead person. Claims for defamation die when the person dies. So if you want to write a novel that features George Washington in a compromising situation, go right ahead. One caveat: if the estate of a famous dead person is still commercially exploiting the celebrity’s image, other laws may prevent you from using the celebrity’s likeness.
Defamation is a written (libel) or spoken (slander) statement about someone which 1) is false; 2) subjects the person or organization to hatred, contempt, ridicule or loss of reputation; and 3) is published to a third party. In addition to these elements, famous people have to show “malice”-- that the person making the statement knew it was false or had reckless disregard for whether it was true or not.
For fiction, the question is whether readers can identify a real person from your description: if the reader knows Billy Bob, will the reader be convinced that the defamatory parts of your fictional work (the parts which are false and would subject someone to hatred, etc.) describe Billy Bob.
In general, the more preposterous your plot, the less likely it is that readers will believe you are describing a real person. So if your novel has aliens abducting your Billy-Bob-like character, or you have him murder his wife when in fact Billy Bob’s wife is alive and well, you’re probably in good shape. Other good guidelines to follow are to give your character a different name, different occupation and different physical appearance than the real person. The less like the real person your character is, the better, and really, if you are a fiction writer, it shouldn’t be that hard to make things up.
Some things that will not save you if you have defamed someone: putting the words “in my opinion” before a defamatory statement (“in my opinion Billy Bob stole money from his employer”) will not work, because you are really asserting fact, not opinion. And that little disclaimer you see at the front of every book (“any resemblance to actual persons, living or dead, is entirely coincidental . . .”) also isn’t much of a defense.
One parting thought. Revenge is not a good motive for writing fiction, and probably doesn’t result in the best-written fiction. If you’re mad at your ex, or your mother, or your boss, toilet paper their houses instead of portraying them in your fiction. Your writing is yours, an escape from the people who have done you wrong. Don’t give them a place in it.

Heather Newton practices law and writes fiction in Asheville.
Copyright 2009 by Heather Newton

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