Scarlett Johansson won a defamation suit against a French writer for creating a promiscuous character who happened to look like the movie star. A Georgia jury awarded $100,000 to a woman who claimed a character in The Red Hat Club falsely portrayed her as an “alcoholic S***.”
Writers face three big risks when using real people in their writing: defamation, invasion of privacy, and misappropriation of the right of publicity. Yet every fiction writer bases characters on real people. Memoirists and nonfiction writers identify people by name. How can writers use real people in their work without risking a lawsuit?
It’s not that hard. Common sense and a cool head are key.
First, let’s start with a quick summary of United States law. (The laws of other countries are more favorable to the targets. In today’s Internet environment, you could get sued in France for a blog written in California.)
To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (target) must prove all of the following:
False Statement of Fact.
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. Opinions are also protected because they are not “facts.” Couching something as an opinion is not bullet-proof. Courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.”
Of an Identifiable Person:
A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target. Typically, the target must be a living person, but companies and organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
That is Published:
One person (other than the target) must read or hear the statement. Causes reputational harm: The statement must be more than offensive, insulting, or inflammatory. It must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”
Made With Actual Maliceor Negligence:
If the target is a public official or a public figure, then the plaintiff must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some fault or negligence by the defendant.
Invasion of Privacy Claims
Even if you publish the truth, you may still be sued for invasion of privacy if you disclose embarrassing or unpleasant facts about an identifiable, private person that are offensive to ordinary sensibilities and not of overriding public interest.
The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries a camera in their pocket. Similarly, public figures can have little expectation of privacy. A movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointing her way.
Another flavor of invasion of privacy is called false light. Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture, a true fact. If the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.
Misappropriation of the Right of Publicity
Using someone’s likeness, name, or identifying information for advertising, promotional, or commercial purposes may get you sued. Whether the person is a private individual or public figure, you would be liable for damages, including punitive damages. If the person is dead, you could still get sued in some states and foreign countries.
How to Avoid Trouble
Considering the hundreds of thousands of books published each year, there are relatively few lawsuits against authors. Claims are difficult to prove. Most targets don’t sue because they do not want to call attention to a matter best forgotten. To reduce your risk of being one of the unlikely few, authors should consider the following:
* Don’t say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. Instead, stick to verifiable facts and your personal, emotional responses, Apply your creative skills to hyperbole and voice. Remember the old adage, show, don’t tell. Let your readers come to their own conclusions.
* Never say something like “don’t do business with xyz company.” Tell the story of your experience with the company. Your readers will get the message.
* If you base a character on a living person, mask identifying features. Change physical details and life histories so the character is not recognizable. The more villainous the character, the more changes you should make. The same is true if you are using a company as an evil character, such as a polluter.
* Use parody and satire. If what you describe could never be true, then it is not a statement of fact. That’s how The Onion and other satire sites get away with headlines such as Brad Pitt Decides To Grow Out Forehead Hair.
* Retain records to support your statements. When speculating, be clear you are taking a guess. State your opinions as opinions, not as facts.
* Rely on publicly-disclosed information, such as court documents and news reports. Court filings are a rich source of juicy information.
* If you are writing a “getting even” book (to get back at a parent, spouse, boss, or someone else who made your life miserable), write the manuscript with passion, then put it aside for months, or even years. Then will you be better able to mask your character and make it universal. Better yet, wait until your target has passed away.
* Respect privacy. In today’s crowded world, privacy is more valuable than ever. How important to your story is that private fact?
* Don’t assume no one will go after you because you have no money. If you peeve someone enough, you may awake one morning to a process server banging on your door.
* Don’t use anyone’s name or image for commercial purposes without express permission.
* Add the standard disclaimer to fiction pieces. “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”
* If accused of a defamatory statement, consider publishing a retraction.
* Engage an attorney to review your manuscript.
* Always reach for the truth when writing—it’s the best defense.
For more information on how to protection yourself from legal risks, please check out my blog at Helen Sedwick and my book, Self-Publisher’s Legal Handbook available at Amazon and other booksellers.
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.