Protecting Yourself in Nonfiction
- By: Jessica Faust | Date: Aug 21 2009
I’m in the entertainment industry and I’m writing a book about one of its specific cottage industries. I have a lot to dish about and I’m not sure if my disguising names and identities is enough to legally protect me from people who might read the book and get a little excited and take legal action. What kind of attitude should I take on this?
Let’s face it, we live in the land (at least here in the US) of lawsuits. If someone can sue, and win, over a cup of hot coffee then certainly people can sue if they feel you’ve written about them in an unflattering light. I’m not a lawyer and in a situation like this I would defer to a lawyer, either a publishing lawyer by recommendation or an in-house lawyer at your publisher, however if you have concerns that you might be sued my guess is that you might be sued.
I don’t have any more information than what you’ve given me here, but you might want to consider making some major changes to your book if you are worried about lawsuits. You could fictionalize the book a la The Devil Wears Prada or, if you insist it would be much better as nonfiction, you’ll need to go that extra mile and really disguise your “characters” with more than just name changes. I think hair color and other defining characteristics will also probably have to go as well.
I will warn you that if a publisher feels that a book might bring lawsuits it’s going to be really hard to sell a project. The last thing publishers will want to do is get involved with something that upfront they feel might be nothing but a headache.
Jessica
Sigh. I'm an attorney, and I hate the ambulance-chasers, and I have to post and say that the McDonald's coffee lawsuit was in fact COMPLETELY LEGITIMATE and NOT FRIVOLOUS AT ALL. Please trust me on this. There are so many bad cases out there, but the cup of coffee case is not one of them.
CKHB:
You and me, both. Here's a quote: "Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.
During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds' knowledge about the extent and nature of this hazard."
Um. Though I guess that's a little off-topic. (Source: https://www.lectlaw.com/files/cur78.htm)
Very helpful to me personally, since I'm considering a book exactly like this. I always wondered if a whistle blowing type of book would be hard to sell and it's good to get an answer to that!
So if you have a fiction book but based off people in your life, names and faces changed of course, than there is no worry?
Thanks, CKHB and anonymous. I was also put off by the "coffee" comment. The woman was seriously injured and on top of that had the public humiliation of her injuries (and their rather personal location) being turned into a political sledgehammer.
As a former attorney, I second CKHB. There's a HUGE difference between the woman who suffered horrendous burns and Frank Sinatra suing Kitty Kelly to prevent his dirty laundry from being aired.
For Jessica's questioner, I would ask why are you writing this book? Is it for revenge? And if it's not, do you have the teflon skin to handle the backlash?
apologize for the coffee comment will think of better examples in the future
–jhf
I'm not an attorney, but I would have to wonder about the expected nature of the lawsuits.
For example, would it be about breaching a confidentiality agreement, or about libel?
If the former, merely making public that which you are legally bound to keep confidential could get you into hot water. For libel, there is probably a greater chance that the way the information is presented could make or break the case, i.e. something defaming that is clearly stated as an expression of personal opinion vs. stated as fact.
Allow me to provide a suitable frivolous lawsuit example for you:
In 2005, Austin Aitken sued NBC for $2.5 million. He claimed that an episode of "Fear Factor" caused him "suffering, injury, and great pain." He said that watching the contestants eat rats on television made him dizzy and light-headed, causing him to vomit and run into a doorway. (The judge said the case was frivolous and threw it out.)
Your blog can now say, "If someone can sue NBC because Fear Factor made him queasy, then certainly…"
After all, you don't need to add the "and win" part. Most writers in this position would want to avoid the lawsuit in the first place. Even ridiculously bad lawsuits often cost money upfront to defend.
/end lawyer rant
Well, in defense of the coffee statement, not all judges and lawyers would agree that it wasn't frivolous, so blanket statements are unfair.
Most publishing contracts, if not all, say that the author must cover legal expenses and loss in case of a lawsuit even if the publisher's lawyers have given the book their okay.
Fortunately, there's insurance for this an author can buy if they feel they are in dangerous territory.
An author would have to weigh the financial gains versus financial loss to decide if the book is worth it as well as following the standard "allegedly" weasel words used in nonfiction and news reporting.
And, yes, a fiction author can be sued for libel, but according to most sources, no one has ever won these libel suits.
To learn more on these subjects, I suggest you Google "libel in fiction" and "libel in nonfiction" to start with.
My favorite publishing law site is ivanhoffman.com, but he doesn't seem to cover this topic.
If the issue is libel rather than breach of confidentiality/employment agreement, etc., then another issue may be documentation. Libel focuses on UNTRUE statements of fact. If you can demonstrate with documentary evidence that it actually happened the way you describe it, you will have a much better chance of avoiding/winning lawsuits. Avoid the temptation to embroider! (For fiction, embroider away).
Best advice? Talk to an attorney friend who specializes in media law. Salacious detail sells books. A publisher might be willing to take it on if the reward is high enough and the risk is low enough.
Good example of reward v. risk, Anon 12:50. The O.J. Simpson book "If I Did It" pretty much ruined Judith Regan's career, even though that wasn't the offical reason for losing her job at HarperCollins. The lawsuit between her and News Corp. makes for some juicy reading.
Fascinating blog commentary today.
As long as we are talking frivolous lawsuits, how about when Colleen Nestler of Santa Fe, NM filed AND RECEIVED a temporary restraining order against David Letterman because he was using coded words in his broadcast specifically meant to harass her?
https://wikibin.org/articles/colleen-nestler.html
Sure, it was eventually quashed but the fact that a judge bought it in the first place? LOL.
Faye
My understanding is that if you fictionalize it they may or may not sue you, but they are very unlikely to win. It's really hard to prove liable today. But consider how pricey even a failed lawsuit can be in terms of money and publicity. … then again, some people might like that kind of publicity …
Re: the McDonald's coffee — agreed. they were keeping it at something like 200 degrees or hotter (the temp of the stuff coming out of your home coffee maker is at most 180)
Certainly a writer needs to read up on libel and slander when writing nonfiction.
However, if there is documentation of what happened, there isn't much in the way of legal recourse for the people named in the book (especially if names and identifying characteristics are changed). But that won't keep people from trying to sue the author and publisher.
My guess is that if a publisher is interested in the story it will look into possible lawsuits. Worst that happens is that it doesn't get published, but there's a chance that some parts might get changed instead.
There's a HUGE difference between the woman who suffered horrendous burns and Frank Sinatra suing Kitty Kelly to prevent his dirty laundry from being aired.
—
glovin
Home Security Systems no CREDIT CHECK everyone is approved
I just thought I would come out of lurkdom and say I enjoy reading your blogs and find them interestng and informative
I was "banned" from some members of my family after just blogging about my father's untimely and suspicious death. One of them threatened to sue me if I "besmirched" her or her family. I laughed and said everything I wrote was the truth, noting that I never used any of their names. From that now defunct blog emerged a memoir. In writing the memoir I haven't used any names other than my immediate family and have chosen instead to use "pet names" for everyone else. I preferred to keep it real rather than making it a fictional piece because frankly, you couldn't make some of this shit up! If members of my family were annoyed at me for "airing dirty laundry" I could only imagine how my father's gold-digging ex-girlfriend will react. Although there are people in it, who don't come off looking too good, since I haven't specifically identified them I wonder if I can still be sued? They know who they are and if they come forward that's their choice. In any event I'm willing to fight, because this book is not about revenge but hopefully will help others who find themselves in a similar situation. Still, it would be nice to know that I have some legal leeway since it is a memoir.