How Not to Get Sued When Writing about Real People

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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.

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.

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.

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Comments

Manish Gaikwad's picture
Manish Gaikwad July 28, 2015 - 12:24am

Hello Ed,
I read your article. It is very informative and entertaining I like it. You being an expert I would like to ask you what if a writer saw a tv episode and got inspired to make that episode as a novel. What should a writer do?
Waiting for your reply.
Manish

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading Tons of LGBT nonfiction so he can judge a literary contest July 28, 2015 - 6:43am

Hi! Thanks for the kind words. In answer to your question, the writer would have to convince the owner of the rights to the TV show to sell him or her the rights to turn it into a novel. It's very unlikely that the owner would be willing to sell these rights. I'm not a lawyer, and this is not legal advice, but I would advise the writer to forget about this idea and develop his or her own new story.

--Ed

Marša's picture
Marša from Wrocław (Poland) is reading Stand on Zanzibar August 6, 2015 - 12:00am

Hi,

after month or so of anonymous stalking this article made me register on LitReactor, yay ;) I like how you described this issue. I think what mainly should be at work, when writning stories based on real events, is common sense and 'what I would do in such situation' but you gave it some solid, legal, ground without puting too many strange words. Thank you for that :D

 

And big cheers for last example ;)

 

 

Regards,

Marta

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading Tons of LGBT nonfiction so he can judge a literary contest August 11, 2015 - 6:47am

Hi Marta! Thanks so much for your kind words! Welcome to LitReactor!

--Ed

adifferentworld's picture
adifferentworld October 10, 2015 - 10:46am

I wonder if anyone has experience using places in their stories. I'm writing a story set in Ottawa, and I want to use the names of real restaurants and hotels there. I want to do this in part to make the story relatable to my readers, but also to make the city come alive and preserve history. I'm not writing about these places in a derogatory way. If anything, I'm including these places as a way of supporting them (should anyone actually read my words).

Is it good form to contact the owners first? Is it necessary? What have others done?

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading Tons of LGBT nonfiction so he can judge a literary contest October 12, 2015 - 10:56am

As usual, I offer this as a suggestion, not as legal advice:

I've edited a number of detective stories set in places like Mumbai, Tokyo, London, and Botswana, and in each case, the author has made liberal use of real places - hotels, bars, restaurants, and so on. I have left the names of these places intact. My (possibly unfounded) logic tells me that these are public establishments and can be named because they're being used as landmarks.

If, however, you write of rats in the kitchen of one of the restaurants, I'd advice you to change the name out of a sense of self-preservation. You'd be doing about a retail establishment what, if you did it about a real person, would be considered libelous.

It's a question you can save for an editor, should your book reach that stage.

Good luck!

--Ed

adifferentworld's picture
adifferentworld October 20, 2015 - 11:40pm

Hello Ed!

Thank you so much for the response. That makes perfect sense. If anything, I'd chose places in the hopes of supporting them. I'll save the rat-infested kitchens for imagined restaurants.

Cheers,

Traci

clayserenbetz's picture
clayserenbetz February 18, 2016 - 3:36am

Your article is very informative and entertaining I like it.You can’t control a homicidal maniac, but you can avoid having  drag your ass into court. http://clayserenbetz.com/

Magdelena's picture
Magdelena January 18, 2017 - 9:12pm

Thank you for writing this, most of the questions I had I feel have been answered. I will of course consult an attorney before publishing. This article has helped me get back some confidence after being unsupported by some family to write my story. You also made me smile at the very end, I really needed that.

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading Tons of LGBT nonfiction so he can judge a literary contest January 19, 2017 - 1:21pm

Magdelena - Thank you very much for your kind comments. Don't take your family's lack of support to heart. They're obviously afraid of what you might write about them. So write your book and let a lawyer decide what you shouldn't say.

--Ed

blas_02's picture
blas_02 March 19, 2017 - 4:43am

Mr. Sikov,

Thank you for sharing valuable insight. I’m starting to think it better to write a novel than a memoire with name, character description, and location changes.

The people I have written about are mostly family and longtime friends. Aside from burying them six feet under, they may still recognize each other based upon happenstance – incidents and circumstances surrounding them.

How much fictional cover-up does a writer need to mix into a story before it is safe from becoming libel? Can one big dose of BS suffice such as “an alien invasion” or “monkeys flew out of her ass?”

I would rather call it a novel and sprinkle in smaller bits of BS and of course add “This is a work of fiction, and any resemblance to a real person or persons is entirely coincidental.”

I understand there may be consequences to the truth yet it saddens me to make changes to the contrary. Whatever happened to the truth shall set you free?

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading Tons of LGBT nonfiction so he can judge a literary contest March 21, 2017 - 1:22pm

In answer to your question, "Whatever happened to the truth shall set you free," the answer is: somebody sued.

I wouldn't go with the "one big change" idea, especially not if it's on the order of "monkeys flew out of her ass." If everything else about the person is recognizable, you've got a big problem.

I don't see why changing names and locations and even ages is such a problem. So you're telling a few fibs. If the basic memoir is good, a few white lies won't hurt.

--Ed

bill007's picture
bill007 March 27, 2017 - 10:50am

I attended a technical school in the sixties and the airport where it was located is still there.

In a book, can I mentioned the real name of the airport but change the name of the school and it's owners (husband and wife), teachers,and students. Even the descriptions of the characters would be much different than they actually were.  

Cr8iveJ's picture
Cr8iveJ March 27, 2017 - 7:49pm

Hi there Ed!

I found your article the most relevant when doing my research on a screenplay I am writing but there was one question in particular that you did not cover so I am hoping to get a response from you. I am writing a feature film based on true events and I am primarily concerned about one aspect of it that is definitely illegal activity. If it was myself performing the illegal activity (i.e. filiming someone without their permission or underage drinking) but it is a crucial part of the development of the theme should I say in my pitch to production companies that that part of the film is not true to avoid getting in trouble? Basically I would like to know if I admit to doing something illegal and the person who the story is based on finds out would they be able to sue? If so, what would your solution be?

--Cr8iveJ