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Defamation of Character and Fiction Books
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Im a lawyer. A message board is not the place to ask for legal advice. If you think that there is someone that may sue you for defamation (more likely misappropriation of likeness) or any other privacy based cause of action (false light) you need to sit down with a lawyer and do a clearance. Just because you put a disclaimer on your book doesnt mean your protected. You need to explain to a lawyer experienced in intellectual property and freedom of expression in detail how your character is based on a actual person. He/she will need to review the work, ask you a series of questions and then clear the novel for publication or to instruct you how to change it so your not giving rise to an actionable claim.
It's actually the perfect place. This group is all about writing and publishing, and the possibility of legal action over something you've written is a relevant issue - whether it's defamation or plagiarism.
Matthew wrote: "It's actually the perfect place. This group is all about writing and publishing, and the possibility of legal action over something you've written is a relevant issue - whether it's defamation or p..."Re-read her post. She's asking for specific advice. Sure its a great place to discuss issues related to this topic but not ask for legal advice about a specific legal issues.
With an eye towards education, isn't defamation in a work of fiction just plain old libel? It is difficult though by no means impossible to prove in court.
Tara wrote: "With an eye towards education, isn't defamation in a work of fiction just plain old libel? It is difficult though by no means impossible to prove in court."Yes and no. It can be just libel/defamation. But it can also be misappropriation of likeness, right of publicity, invasion of privacy, publication of private facts, false light ect...
I highly recommend getting an attorney but if you want to be educated on some basic info then you can check out this link...
http://www.dmlp.org/legal-guide/publi...
Michael wrote: "Matthew wrote: "It's actually the perfect place. This group is all about writing and publishing, and the possibility of legal action over something you've written is a relevant issue - whether it's..."She is asking if anyone ever had experience with characters - being inspired by real people, as all characters usually are - and a defamation suit. I had similar questions about plagiarism when I wrote my first book, so of course i asked a friend who knowledgeable in legal matters for advice. She is not speaking about a specific case, nor is she giving details from her own work. It's a general question - "who has experience dealing with this?" Where is the specificity that makes this somehow wrong?.
Fascinating - thanks for the link.
One of my in-progress novels is set in my hometown so I am also interested in this.
Michael wrote: "Tara wrote: "With an eye towards education, isn't defamation in a work of fiction just plain old libel? It is difficult though by no means impossible to prove in court."Yes and no. It can be just..."
Thanks, Michael, some very helpful link!
Matthew wrote: "Where is the specificity that makes this somehow wrong?..."Matt, there is nothing wrong and if anyone has experience s/he is welcome to share. However from reading Erin's message, I also have an impression that she might need to consult a lawyer about her specific situ. It's good to know general or someone else's experience, but it can't always apply nor replace a scrutiny of something specific..
The disclaimer is important, but you can't disclaim liability and then start smearing someone. It doesn't work this way. For example, if the disclaimed resemblence is clearly not coincidental, I doubt whether you can rely on it for defense. It's NOT a legal advice - just some general thoughts -:)
This thread suggests that it would be good policy for an author to ensure that their characters could not be mistaken for a specific someone.As to how you would do that, I'm not sure apart from not using the names of the famous... or a character that looks like and has the same profession as someone you know.
I have a friend who is a police officer, it wouldn't occur to me to literally use his likeness for a police officer character.
Nik wrote: "However from reading Erin's message, I also have an impression that she might need to consult a lawyer about her specific situ. "Exactly.
Its called "Standards and Practices" in the television and movie industry. Lawyers scour the scripts and the plot lines looking for potential lawsuits and will not clear a broadcast or publication until all potential pitfalls are corrected.
You also have to be careful of trademark infringement claims.
Hi Michael,Are there publically available checklists?
Graeme wrote: "Hi Michael,Are there publically available checklists?"
To substitute in the place and stead of a lawyer's review ? No...
The law is constantly evolving and it depends on the state/country in which you are located. A checklist for California authors would not be applicable to lets say authors in Kansas nor in the UK or Australia. And a checklist that may work in California today could change the next day with the publication of new case law.
Most of my characters are directly based on friends and clients. One even carries the same name. Before I publish I will be getting them all to sign off on a release granting me the rights to use their characters in my novel. My beta readers are already asking to meet the "real" Billy, Jimmy and Gunner. lol So Im going to use it as a marketing strategy.
That you all for your discussion points. This is exactly the kind of stuff I wanted to talk about. I am not necessarily worried about a law suit for myself. I never was until the topic came up. I just wanted to learn more about the boundaries and other experiences and advice.
I don't believe there is such a thing as fiction or non-fiction. Even fiction is based off of experiences, thoughts and a persons own reality of what is possible in this world.
If you write about something or someone, you must have heard about it or seen it somewhere in order to have the information in your mind to create it. Where is the line?
My book is heavily based on my husband and how he pursued dating me. It's a whirlwind love story. All supporting characters are hybrid people in my mind, made up to support the story. But what is the rule if someone recognizes a situation my husband and I were in and thinks I'm writing about them even if other characteristics and there role in other areas of the plot are completely different?
Erin
@Nik: I agree. And she knows this now for having asked and were having a real good review of the all-important matter of the law, as it pertains to artistic material.
I'm wondering what changed to make you think of it now at this late hour. Meaning, did someone read your book and say, 'oh, wow, so-and-so is going to be pissed off, she/he might sue you? If that, or something similar is the case, then the person is too easily identifiable and the descriptions of the person are most likely not flattering.The initial question is: has that happened to anyone, and as far as I can see the answer is 'no.' Even so, legal issues suck time and money out of people. Is it too late to change what you wrote? If not, then be sure before you publish it.
I was asked explicitly after publication if a character was based on so and so whom we both knew. I pointed out that all my characters have traces of real people in the MS even my aliens in sci-fi. They are mixed up jumbled impressions of collections of people.I also have real people named i.e. Prime Ministers, and real events in my thrillers so I'm careful with checking published facts -
I don't think most authors are in any danger unless you write about close to home very real events. Even then if you tell the truth libel cannot apply although it might cost a lot to prove that. UK libel suits are notoriously expensive and often backfire.
Yes we run a risk that someone might take offence if they think the character is them but even that I think is a slim risk.
If it is a work of fiction, my advice is to make sure there is sufficient fiction that the person who inspired your character is not immediately recognisable, and I mean more than just changing the description. Things have to happen to your character that did not happen to the real person, and it never hurts to put in some good things about your fictional character that are painfully obviously not applicable to the alleged person. The idea then is that if the person does sue for something, the person has to deny that a, b, c, d, etc applied to him, and that the character is really fictional. If the character commits a crime, and the person did, that is just tough because crimes get committed. You just have to make sure that what you write cannot be really attributed to what inspired you. If you are writing about something true, then you had better get legal advice.
Hello guys, Michael already said, if you have a real concern then go consult a lawyer. The best advice I ever heard on this subject was in a radio interview back circa 1996, with brilliant author Anne Lamott. She said, I give characters who might sue a "little penis" in the book. Haha. You get the point? I think Ian (above) did!!Does anyone on this thread actually know an individual who sued an author of a fictional work in US for defamation of character????
Consider this anyway, if you are self-published, chances are neither you, nor your publisher (you, hello! ) would be worth suing, not only because you have no money, but also because any such lawsuit would be publicity for your book which the defamed character would certainly not want.
No one can actually sue you for depicting a fictional character, even if they're inspired by a real person.For instance, I could write an evil character based 90% on my grandma and she wouldn't be able to do anything. Not just because she's actually evil in real life, but because it's a fictional character in a work of fiction.
Also, you put in a disclaimer. People may try to still point the blame at you (once in a blue moon, if that), but legally you're not at risk.
Kind of like when they put disclaimers at the start of shows like Jackass or games like Grand Theft Auto where they don't condone the behaviour and it's fictional and blah blah blah. People can blame them all they want, but nothing can legally be done about anything because the creator is protected by various acts involving freedom of speech and expression. You aren't responsible for anything.
And adding to my previous point about any "coincidental" characters, even if that character resembles someone 100%, name included, you can just say it was a parody of that person. Parodies have that kind of right.
Joanna wrote: "Does anyone on this thread actually know an individual who sued an author of a fictional work in US for defamation of character???? "Yes...
http://abcnews.go.com/Health/lawsuit-...
https://scholar.google.com/scholar_ca...
http://caselaw.findlaw.com/ca-court-o...
https://scholar.google.com/scholar_ca...
https://scholar.google.com/scholar_ca...
https://scholar.google.com/scholar_ca...
http://cityroom.blogs.nytimes.com/200...
http://blogs.wsj.com/law/2008/03/20/l...
If I wanted to spend a some real time researching legal databases Im sure I could find more... this was the results of a simple Google search...
A typical retainer in a defense libel case would probably begin at $10,000 and even if you were to win at a very early stage in litigation, that $10,000 would be easily be spent on legal fees. If your case had to proceed to a motion for summary judgment, you're probably looking at a minimum of $75,000 upwards to $125,000 in legal fees and that's if you win. If you lose summary judgment, you're heading to trial, and then you can tack on another $50,000 to $100,000 in fees for trial.
Sorry Michael we are going to have to disagree slightly here, although my question was sloppy. I had in mind successful lawsuits, and those aren't quite as plentiful. In fact, on a very perfunctory reading of the links you cite to above, only one case appears to have been successful, and that was back in1979.The last two links in your reply above are to the same case, that of an attorney suing Dick Wolf (Law and Order) and NBC TV, and that case so far as I can see is still wending its way through the courts.
Second, in the other six cases, five were dismissed or the jury verdict for plaintiff was set aside.
Third, all the above lawsuits were brought against big media corporations (publisher Random House, 20th Century Fox , Paramount Pictures, Doubleday, Penthouse and NBC) . In the one successful lawsuit against Doubleday in 1979, punitive damages were awarded only against the publisher not the author although author and publisher were jointly and severally liable for compensatory damages.
Which is not to say as I stated in my very first sentence previously, if you have a real concern go CONSULT A LAWYER about your specific concerns whether you are self-published or otherwise.
If you are sued, you may well prevail BUT as Michael does quite rightly point out, it would cost you thousands and thousands of dollars to defend yourself.
Alexander wrote: "No one can actually sue you for depicting a fictional character, even if they're inspired by a real person.For instance, I could write an evil character based 90% on my grandma and she wouldn't b..."
Alexander, I respect your opinion, but I think it might be misleading and certainly contrary to the advice brought here by members, referring to legal overviews of lawyers, specializing in these fields, both in the context of possibility of being sued (certainly possible), ruled liable and using disclaimer and parody as foolproof defenses.
Suggest not to treat these issues lightly or as impossible.
Ian wrote: "If it is a work of fiction, my advice is to make sure there is sufficient fiction that the person who inspired your character is not immediately recognisable, and I mean more than just changing the..."Agreed. That way if they sue, it's on them to show how they are similar to the character, and hopefully they will end up admitting to the "defamatory" aspect and ruin their own case.
Nik wrote: "Alexander wrote: "No one can actually sue you for depicting a fictional character, even if they're inspired by a real person.For instance, I could write an evil character based 90% on my grandma ..."
What do you mean? I don't intend for them to be foolproof defense; simply that they're good reasons why he shouldn't get into so much trouble.
Joanna wrote: "If you are sued, you may well prevail BUT as Michael does quite rightly point out, it would cost you thousands and thousands of dollars to defend yourself."This...
Its not a matter if the plaintiff is successful, its a matter of how much you will spend to defend. Those cases linked have gone to the appellate level. For every 100 cases filed (or more that go to summary judgment/trial) only 1 goes to an appeal. And those are the only cases that are actually published. There's really no way to know if there has been any lawsuits filed against self-publishers unless those cases went up on appeal. Since self-publishers probably dont have $200,000 to spend on litigation through appeal, its more than likely those type of cases (if there are any) were settled long before they reached an appeal and were published. And not every case that is appealed is published.
A consult with an attorney about your novel and getting it cleared may cost an author $500 to $2000. Which is far less expensive than defending a lawsuit. And what is even less expensive, if possible, getting the person you have based your character upon to sign a release giving your permission.
Michael is right up to a point, but recall the costs also apply to the plaintiff. If you are writing fiction, and you really make the character fictional, even if there are similarities to someone, the plaintiff should realise that if (s)he keeps quiet, nobody else will notice because they will not know about all the similarities. So I stick to my opinion - if you re writing fiction, use your imagination, and don't just copy some person's activities.
Joanna wrote: "Hello guys, Michael already said, if you have a real concern then go consult a lawyer. The best advice I ever heard on this subject was in a radio interview back circa 1996, with brilliant author A..."Excellent points Joanna!! I know I don't spend any time up at nights worrying about being sued for my fictional novels.
I need some advice! And fast!
I finished my manuscript and it is ready for print! We have a disclaimer at the beginning of the book stating: This book is a work of fiction. Names, characters, places, and incidents either are products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events, or locales is entirely coincidental.
Is there anyone that has had experience with defamation of character. I have questions before I moving forward with publishing. Has anyone ever written a character inspired by someone they know and have them sue you or make a defamation of character claim?
Please let me know if anyone has any insight.