Let’s say your childhood friend has become a blazingly successful drug dealer who specializes in crystal meth. Let’s say he made a dumb business decision — he ripped off Randolph “Sweet Randy” Hobermeister, his supplier. Let’s say that Sweet Randy wasn’t pleased. No, he was not pleased at all. And let’s say that your friend (we’ll call him Ed) came to you for help, and you provided the help — letting Ed hide out at your place for a month while he sorted out his difficulties with Sweet Randy. Let’s say it was a wild month, with all kinds of crazed druggies showing up at your door, coming into your house, eating your food without asking, pissing in your toilet without flushing, getting into surprising literary discussions with you, fucking god knows who in your bed, and watching golf matches on your television. Let’s say Ed and Sweet Randy kissed and made up after Ed’s sugar daddy boyfriend paid off Sweet Randy, and oh my god you’ve just been handed a terrific idea for a novel. The damn thing will practically write itself! You’ve been taking notes since the second day, when your creative talent got in touch with your boundless ambition, and you started keeping a record of every druggie, doggy, drag queen, and sleazeball sidekick who walked through your door, what they said, what they did, what they ate, what they smelled like…. You're so convinced of this book's success that you've already done the "We're in the Money Dance" five times.
What do you do to avoid a) getting sued by Sweet Randy, or Ed, or Ed’s sugar daddy, or b) getting yanked out of your bed and garroted in the middle of the night by an enraged drug kingpin who’s just learned that he’s the star of your fabulous new bestseller? You won’t be able to spend your spectacular royalties in jail or in the cemetery, so it’s a good idea to know how to avoid at least the former. You can’t control a homicidal maniac, but you can avoid having him drag your ass into court.
Here’s a practical guide for writing about real people without getting sued.
Note: The following article is for entertainment purposes only and does not offer any legal advice.
This is an important disclaimer for me to make, because I do not want to be sued by one of you who doesn’t consult a lawyer, gets sued by his or her subject, and then turns around and sues LitReactor and me for offering inadequate legal advice.
This is why you see such sentences as “This is a work of fiction, and any resemblance to a real person or persons is entirely coincidental.” The sentence may in fact be total bullshit, but it’s there for the writer's protection. It’s a preemptive strike. Don’t leave it out.
What is Libel?
Libel is the legal term for defaming someone in print or on a TV broadcast. It’s often used interchangeably - but wrongly - with slander, which is the same thing only in spoken words, not printed or broadcast ones.
There does not have to be malicious intent for a statement or group of statements to be libelous. There must only be the knowledge that the statement in question is or may be untrue and might cause harm. Keep in mind, though, that this is merely the legal definition of libel. It is not enough to keep someone from suing you. It is up to the court to decide whether something is libelous or not. The key issue for you is to know how not to get sued in the first place.
Sex, Drugs, and Off Their Rockers
I’ve found through experience — I’ve written biographies of Billy Wilder, Peter Sellers, and Bette Davis — that the three areas that cause publishers’ lawyers to sweat the most are statements about sex, drug use, and mental illness. You can get away with calling somebody a lousy cook; nobody’s going to care. But if you claim that someone put funky mushrooms in the soup and all the guests went tripping, you had better have proof.
Proof might come in the form of eyewitnesses or previously published statements about the drug-laden chowder. It’s best to have at least two independent sources for any claims you make about your subject’s drug use, sexual kinks, or insanity, though usually you can get away with one if s/he’s in a good position to know. I once went on a seemingly endless merry-go-round with my publisher’s lawyer over someone’s description of the actress Glynnis Johns as “a bundle of neuroses.” The statement had been made by one of the actress’s directors. I thought this director was in a perfect position to know, given that he witnessed the actress at very close range and for an extended period of time and experienced the neuroses' results first hand. The lawyer disagreed. We argued for a long time. I only won the argument by stating in a raised voice, “Everybody is neurotic!” He grudgingly admitted that I had a point, and the quote stayed in.
R.I.P.
One’s ability to sue for libel essentially ends at the grave. As one legal scholar wrote, “The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors.” So before you publish a work of nonfiction or a novel or short story based on facts, create an “R.I.P. list.” Find out who’s dead and no longer in a position to sue you. For all intents and purposes, you don’t need to worry about them any more, although it’s not a good idea to make up some outlandish assertion about a dead person and commit it to print. That’s just tacky.
Turning Fact into Fiction
There are several reasons for writers to fictionalize real people and events when writing everything from an unembellished memoir to a novel based on reality. Being sued is only one of them. You might well find that bending the truth creates a much better story.
But we’re not concerned with improving literary quality here; we’re only trying to keep you from being sued.
For instance, it would be hurtful to write about a fat friend and make him seem like a hippopotamus. You may decide that it’s worth the hurt feelings; that’s your call. But if you subject your portly friend to public ridicule, if you set out to be deliberately malicious, you might enrage him to the point of threatening you with a libel suit.
You have several solutions for this problem and related problems — tricks you can pull that will protect you with little or no real damage to your writing:
- change the person’s name (duh!)
- change the person’s gender
- change the person’s age
- change the person’s profession
- change anything significant about the person so s/he won’t be recognized
- change the story’s location
- change the story’s outcome
A person’s name is the easiest thing to change, but don’t be cute about it. If you’re writing about somebody whose real name is Ed Sikov, don’t change his name to Ted Bikoff. That’s just asking for trouble.
Other Areas of Concern
If you’re writing a true crime novel or a story based on a real crime, be absolutely sure you get your facts right. Accusing someone in print of committing a crime that s/he did not in fact commit is an easy way to get sued.
Insulting people in print can be a lot of fun. I’ve made something of a career of it in the media column I write for New York City’s Gay City News. As long as you’re discussing people with a significant public profile, you can be pretty damn insulting, and chances are they won’t sue — unless you deliberately write something false and harmful about them.
In Mr. Strangelove: A Biography of Peter Sellers, I went pretty far in insulting a major political figure and his millions of supporters. I was discussing Sellers’ film Being There (1979), and I wrote, “It’s not surprising that American audiences accepted the plot of Being There, in which an idiot becomes a national hero, for after all, they elected Ronald Reagan to the presidency the following year.”
My mother was horrified — not because she voted for Reagan (she would never have voted for Reagan) — but because, as she put it with more than a trace of fear in her voice, “Nancy’s going to sue you.” I was fairly certain that neither Ronnie nor Mommy (Ronnie's pet name for Nancy) would sue me. Far worse things had been written about Reagan for a long time. Tellingly, nobody at the publishing house (Hyperion) said a word about it.
A True Story
Many years ago, I coauthored a screenplay with someone with whom I am no longer speaking. It was a comedy set in the early 1960s, and it was about a young woman named Nancy Newton, whose dream (constantly thwarted) was to become a nurse. We had a character — Nancy’s best friend — to whom we gave the name of somebody I went to high school with. We didn’t think anything of it.
Miraculously, the script sold, and we were presented with a contract. There was a clause in the contract in which we averred that no character was based on any living person.
I signed the contract without mentioning that we’d used someone’s real name. Why did I sign it? I wanted the money.
And I figured that in the unlikely event that the film actually got made, we would just change the character’s name if it turned out to be a problem.
At my next high school reunion, I ran into the person whose name we’d used. “Hi, Brenda,” I said. “Guess what? I used your name in a script I wrote.”
And what do you think Brenda replied?
She said – and I quote – “I’m gonna sue your ass!”
The film never got made, I never had to change the name, and I never got sued.
And I learned my lesson: Her name isn’t really Brenda.
About the author
Ed Sikov is the author of 7 books about films and filmmakers, including On Sunset Boulevard:; The Life and Times of Billy Wilder; Mr. Strangelove: A Biography of Peter Sellers; and Dark Victory: The Life of Bette Davis.
