Every
character we include in our fiction reflects people we have known. Each
characteristic—whether noble, embarrassing, or quirky—came from our experience
with someone. It may be buried deep in our subconscious, but we didn’t create
it. Even so, some people stand out more than others, and we may be fascinated
with them and their lives. So how can we write about them without getting into
trouble?
As I promised last week, this week’s
post discusses some of the dangers of modeling characters on real people. It
will start by discussing two of the cases covered in my book Writers in
Wonderland: Keeping Your Words Legal and will end with some ideas on how to
avoid the pitfalls.
Fetler v. Houghton
Mifflin Co.,
364 F.2d 650 (2d Cir. 1966)
Imagine yourself living in the glow
that follows your first published book. Then the sheriff knocks on the door and
hands you a summons. Your brother has sued you for defamation.
Oh, you say, that won’t happen to me.
I only write fiction, and everybody knows fiction isn’t true. Besides, I’ll
have a disclaimer at the beginning of my book saying that any resemblance to any
person living or dead is purely coincidental.
That may have been what Andrew Fetler
thought when he published The Travelers. If so, he soon discovered that he
was wrong.
The novel revolved around a family
very much like Andrew’s family and an older brother very much like Andrew’s
older brother, Daniel. But the fictional parts portrayed the older brother
taking actions Daniel found repugnant. So Daniel sued, and the entire family
took sides.
The lower court judge dismissed the
case without a trial, but the federal appeals court overturned the decision. It
said the similarities between Daniel and the character in the novel were strong
enough to let a jury decide whether readers would identify the real brother as
the fictional one, and it sent the case back for a trial.
There is no more information on the
case after that, and I don’t know how the story ended. The dispute might have
gone to trial or, more likely, it may have settled. But even if Andrew
ultimately won the case, he had to bear the expense and stress of a lawsuit and
live with the knowledge that his novel had divided the family.
Smith v. Stewart, 660 S.E.2d 822 (Ga.Ct.App. 2008)
I do know how this story ended. A
jury found that Smith (the author) had defamed Stewart. Putting Stewart in the
novel also turned a friend into an enemy, and Smith may have regretted both
outcomes.
Haywood Smith’s novel The Red Hat
Club included a character named “SuSu.” In the book, SuSu received a large
insurance settlement after her first husband was killed in a car accident.
Later, she became engaged to a man who owned nursing homes in Florida and was
already engaged to another woman. This man eventually stole SuSu’s insurance
settlement, moved to Florida, and transferred his assets to his mistress.
Although a court awarded SuSu $750,000, she was unable to collect it from him.
Then, at the age of fifty, SuSu became a flight attendant.
These facts weren’t unique to the
fictional character. They also fit the author’s real-life friend, Vickie Stewart.
Maybe it would have been all right if
Smith had stopped there. Unlike the real-life model, however, SuSu was a
sexually promiscuous alcoholic who drank on the job. Stewart took offense and sued
for defamation.
The appeals court held that fiction
could be defamatory if the statements were about an identifiable person, and it
found enough factual similarities to let a jury decide whether readers would
identify Stewart with SuSu. The jury concluded that readers who knew Stewart
would realize that SuSu was based on her. Since there was no evidence that
Stewart was a sexually promiscuous alcoholic, the jury also found that Smith had
defamed her.
Avoiding the Pitfalls
If you want to use a real person in
your fiction, change some of the facts and make the character a composite of
several people. If you are fascinated by a few of your Aunt Martha’s
characteristics or experiences, by all means use them, but give some of them to
other characters. Change her name and physical characteristics, place her in a
different job and setting (unless the job or setting are part of what makes her
interesting), and mix in several noticeable personality traits that the real
Aunt Martha doesn’t have. If you change enough, she is no longer recognizable. Or
at least the reader who knows her will realize that your character is mostly
fictional.
Daddy was a minister who wrote
sermons and letters but never considered anything longer until he retired and
started his autobiography, while Becky’s father is a college professor who is
writing a book on Sir Walter Scott. Daddy was always taking pictures, while I
gave that role to the mother in my novel. Still, the two quirks I mentioned in
my last blog post were part of his personality, and using them together makes Becky’s
father a more interesting character. They also make him easily recognizable to
people who knew him.
As I said earlier, I’m sure Daddy
would laugh while reading the passages about Becky’s father, but there is
another reason I’m not worried about him getting angry and suing me. Simply
put, the easiest way to avoid the pitfalls of writing about a real person is to
write about somebody who is dead. You can’t libel the dead, and they can’t sue
you, either.
A writer also isn’t liable for libel
if the person has given his or her consent. Wait, you say, why would someone
agree to be negatively portrayed? For the same reason people agree to go on
reality television shows where they come across looking like jerks. Some
individuals will do anything for publicity or money. Or they don’t realize how
something looks until they read it on paper, watch it on TV, or hear their
friends’ comments.
Make sure the consent is in writing
and is broad enough to cover whatever you want to say. You also don’t want them
complaining later that you didn’t tell them how the character would appear, so
full disclosure is best.
Actually, there is a another way to
protect yourself, but it is chancy. If you stick to the facts and make sure
they can’t be misinterpreted, it isn’t libel. That doesn’t keep someone from suing
you in the first place, however. Even when you win, lawsuits are expensive in
time, money, and relationships.
So if you want to model characters on
real people, make sure you consider the consequences.
