Today is Thanksgiving, and most
of us will sit around a table with family and friends eating turkey. These dinner
companions are the people we know best, and some of them may have led
fascinating lives. So it’s only natural to want to write about them.
But that could make you the
turkey at the feast. So how do you get away with it without wrecking your
relationships or getting sued for defamation?
As mentioned last month,
nothing you do will guarantee that you don’t get sued. Still, there are actions
you can take to make a lawsuit less likely or to make winning the probable
outcome if you do get sued. They also may save your relationships with family
and friends.
This month’s post gives suggestions
specifically related to fiction. Don’t assume that you are safe just because of
the label. While fiction gives you a little extra leeway, “little” is the
operative word. And the main function of a disclaimer is to give you a false
sense of security. Disclaimers may discourage some lawsuits, but they don’t usually
work as a defense.
The basic test is whether
people who know the person claiming to be defamed could reasonably believe that
the fictional character portrays the real person. If they could believe it, the jury gets to decide whether they would believe it. So what can you do to
keep people from believing it?
The best approach is to disguise,
disguise, disguise. Change as many facts about the person as you can. Does it
really matter that the character is tall and blond like your friend, or could
she be short and dark? What about changing his age and profession? Depending on
the story, maybe you can even change the character’s gender.
I call this the amalgam
approach to creating characters. Let’s say you are fascinated by Aunt Becky’s
profession as a stunt double and you want to turn her into a fictional thief
who uses her skills to get into places most burglars can’t go. Give her a
different name and physical description and mix in several noticeable
characteristics she doesn’t have, such as your friend Mary’s shrill laugh and
your boss David’s habit of rubbing his left leg when he’s nervous. Now Aunt
Becky is no longer recognizable. Or at least you have changed her enough so
that the reader who knows her will realize the character is mostly fictional.
For some types of fiction, you
can also make the character or the character’s behavior so outlandish that
nobody in their right minds will believe it. This isn’t a “nobody who knows her
would believe she would do something like that” defense. It’s closer to “even
if they don’t know her they’d be fools to believe it.” That’s how most people
get away with parodies about famous people.
If you want to write about real
people and situations in your fiction, change enough facts to disguise the
characters. That takes more work, but it is also more creative. And isn’t that
the goal?
Next month I’ll turn to
non-fiction.
__________
Kathryn Page Camp is a
licensed attorney and full-time writer. Writers
in Wonderland: Keeping Your Words Legal was a Kirkus’ Indie Books of the Month Selection for April 2014. The
second edition of Kathryn’s first book, In
God We Trust: How the Supreme Court’s First Amendment Decisions Affect
Organized Religion, was released
on September 30, 2015. You can learn more about Kathryn at www.kathrynpagecamp.com.
Great advice, Kathryn. Isn't it more fun that way, to mix and stir the characteristics? Make them into new people all together?
ReplyDeleteYou are right, Mary. It's a lot more fun.
Delete