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» Hatrack River Writers Workshop » Forums » Open Discussions About Writing » Legal Issues in Writing

   
Author Topic: Legal Issues in Writing
wise
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I am working on a novel in which my imaginary characters mention real people alive today. My characters imply that these real people have been involved in a bad way in real historical events (like in a conspiracy). Can I do that? I think it was Stephen King who said that writers should expect to be sued. It makes me a little hesitant, although I want to tell my story. However, if I (through my characters) accuse someone of doing something that there's no proof of them doing, can I get sued for libel? Even though it's a work of fiction?
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Meredith
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Not a lawyer.

That said, the answer is possibly. If they're bona fide public figures, it would be harder for them, but not impossible.

Also don't miss the distinction between being sued and losing the suit. In other words, if they chose to sue, it could still be expensive for you even if they lost.

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LDWriter2
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What Meredith said. But I would add that it is not unheard of to use public figures.

I'm trying to think of books that have used some. I can think of TV shows that have shown real life people in bad lights. Sliders did that more than a couple of times. But books, I don't know. There is one that refused to name Bush and Rice but it wasn't hard to figure out who they were. I thought it became humorous- which may have been the intent of the writer- because they were talked about in over half the book and even were on "stage" at times. Rice called the MC while he was in the middle of a battle. But no names.

Seems like there have been political thrillers that used the current or recent ex President.

But I've heard it said that public figures can't sue.

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Meredith
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quote:
Originally posted by LDWriter2:

But I've heard it said that public figures can't sue.

Not can't sue. Anybody can bring a lawsuit, whether it has merit or not. It's just a whole lot harder for public figures to win a defamation case.
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extrinsic
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Public figures enjoy less protection from privacy invasion than private citizens when the public figures are pursuing their public lives. However, they have the same legal protections in their private lives as private citizens. Using public figures in creative writing is a treacherous and complicated slope any way it stacks up.
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Kathleen Dalton Woodbury
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In every publishing contract, there is something called the indemnity clause, in which the publisher asks the writer to indemnify (be willing to protect) the publisher from lawsuits relating to the work to be published. If you can get the publisher to agree to include the words "finally sustained" in the clause, then you only have to protect the publisher for claims that are decided against you.

The problem is, however, that no publisher is going to want to publish anything that can give someone a reason to take you (and them) to court, and what you're describing would certainly do that under libel laws.

So, yes, what you propose to do would risk your being sued for libel. And no sane publisher is going to touch that.

Do you really want to accuse actual, living individuals of participating in a conspiracy? Why do you need real people for that, if you're writing fiction?

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wise
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Thank you all for some very sobering comments. I can probably work around this issue by having my character think about the public figure's actions without naming the person instead of having the character use dialogue in which he would have to mention the public figure for it to make sense to his comment. However, because of the historical event and what the person's job was at the time, it might be very obvious. But is it any safer to IMPLY rather than overtly say the name? It sounds like a razor-thin distinction that may not make any difference legally.
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extrinsic
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George Orwell's Animal Farm parody's socialist leadership and policies without naming anyone or anything directly. The novel uses allegory to skirt legal issues. The novel is an artfully inventive social commentary with great depth due to the allegory and parody.
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Robert Nowall
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If they're dead, you can't be sued for libel---at least not in the United States.

Also if they're not necessarily "on stage"---referred to, rather than being characters in themselves. You've got a better chance of getting away with that than actually putting words in their mouths that they didn't say.

Also if you could present your work as "parody," not intended to be representative of the real world. Parody is protected.

Of course your best bet would be to have somebody in mind, and try to mess up the fine details---if he's tall, make him short, if he's a man, make him a woman, and so on...

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TaleSpinner
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Here's an attorney's take:

http://www.rightsofwriters.com/2010/12/could-i-be-liable-for-libel-in-fiction.html

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Kathleen Dalton Woodbury
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Thank you for posting that, TaleSpinner.
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