Can I libel someone in fiction without using their name?

July 27, 2006 10:58 AM

Can you libel someone in fiction if you don't use their name? If I were to write a story based on a real murder, in which anyone from my home town would instantly recognize the source, can an acquitted murderer sue me?

A previous question dealt with defaming a celebrity in fiction, but this is different. If I change the names of all involved people, the school where the crime occured and create physical descriptions and other details from whole cloth, can I still place the story in the same time and geographic location (important to the story)? Use the real juicy details of the story? Can I portray the villian as a murderer who was aquitted by hiring a good lawyer, which is exactly how I see the real-life case? Where must I draw the line?

posted by Bookhouse to writing & language (18 comments total)

Isn't it usually up to the publisher? I always assume that they won't publish it without revisions if there are potential liability problems. Obviously, if they fail to do this they will end up being sued as well so it is in their best interests.
posted by JJ86 at 11:02 AM on July 27, 2006

The law about this varies quite widely depending on the country in which you live, so it might be helpful if you told us that.
posted by Steven C. Den Beste at 11:14 AM on July 27, 2006

IANAL. You need one.
posted by infinitewindow at 11:17 AM on July 27, 2006

I am American, sorry for not making that clear (which is very American, I know).
posted by Bookhouse at 11:19 AM on July 27, 2006

You'd definately want to warn the publisher so they can check with their legal team before publication. I'd say, go ahead, write the story (that's sometimes the hardest part), and send it to the publisher with a cover letter outlining your concerns. They'll have the best advice and they can also help you make what alterations you'll need to get it to where they want to buy it (i.e. "Add more sex!"), so you can kill two birds with one stone, as it were. And if they just reject it out of hand, you'll be better off finding another publisher anyway.

Also, IANAL, but I think if you are "far out" enough, you won't have any trouble; if you want to say your villain is in fact an alien from Jupiter wearing a very cunning humansuit, you probably won't get sued, for example. And if you change enough details, with NO correct proper names (including the town and state) and alter all the details enough, then you should be OK. But it sounds like you're less interested in telling an interesting story than in, basically, deliberately smearing an evil guy who the court let free, and to do that, you've got to walk a much finer line, and that's gonna want a lawyer to look at it.
posted by Rubber Soul at 11:21 AM on July 27, 2006 [1 favorite]

I don't know, was Anna Wintour able to sue for "The Devil Wears Prada"?
posted by ThePinkSuperhero at 11:21 AM on July 27, 2006 [1 favorite]

I don't have the answer to the question, but the term for this is roman a clef.
posted by justkevin at 11:21 AM on July 27, 2006

There is a current case pending against Augusten Burroughs regarding the portrayal of his mother's therapist and his family in his best-selling book 'Running with Scissors. '

"When an author writes potentially embarrassing things about people in a memoir but changes their names, how far does he have to go beyond that, if at all, to hide their identities?

Authors, editors, agents, and publishers will be watching this case, because it has implications for all of them.

...The suit alleging defamation, invasion of privacy, emotional distress, and fraud was filed in Middlesex Superior Court by six members of the Turcotte family of Northampton, who maintain that they are the family of the eccentric psychiatrist with whom author Augusten Burroughs lived in his teens. Burroughs renamed them the 'Finch family in the 2002 book, which is being made into a movie."

[Boston Globe | August 17, 2005]

posted by ericb at 11:25 AM on July 27, 2006

Thanks, everyone. I guess I should write the damn thing and then give it to a lawyer (nothing worse than a novelist talking about a novel s/he hasn't written).

And Rubber Soul, I know how it sounds, but the story always comes first. This just happens to be a really great story in its raw form.
posted by Bookhouse at 11:34 AM on July 27, 2006

In the US the truth is never libelous, but of course you can be forced to demonstrate truth.

Problem here is that if the defendant was acquitted, the legal presumption is "not guilty". If you're claiming "he did it but got off because of a good lawyer" then if he sues you're going to have to prove he did it.

Which isn't impossible. The standard of proof is higher in criminal law than in civil court; you could prevail if you convinced a jury that there's a better than even chance he really did do it. (For instance, OJ Simpson was acquitted in his criminal trial, but the father of the murdered man prevailed in a "wrongful death" civil suit against OJ Simpson. The proof offered in the criminal trial didn't surmount "beyond a reasonable doubt" in the minds of the jury, but in the later trial the case offered by the plaintiff was judged on the basis of "preponderance of evidence".)

But all of this could be very difficult and expensive. I agree with the others; the right thing to do is to have it vetted by a competent lawyer.
posted by Steven C. Den Beste at 11:40 AM on July 27, 2006

Lawyer up for sure, but isn't this pretty much what all the Law & Order franchises do? Seems like a winning formula to me.
posted by lowlife at 11:41 AM on July 27, 2006

You can be sued for anything, so I suspect the question is more along the lines of: Would they have a valid case.

There is, of course, an old writer's trick. If I doing a parody on Rush Limbaugh and my character makes a reference to Rush, then obviously they can't be the same person. ;)
posted by RavinDave at 12:13 PM on July 27, 2006

When the time comes, not only should you ask the publisher's legal team to make sure your manuscript is libel-proof, but you should make sure your contract does not contain a clause like this: "The Author shall indemnify, defend, and hold the Publisher and its respective agents, officers, directors, and employees, harmless and blameless from any losses, expenses, or damages arising out of any claims, demands, suits, actions, proceedings, or prosecutions brought against the Publisher, so don't come crying to us if you get sued."

Have any contract you sign looked over by an intellectual property or entertainment lawyer or by your local writers' association if they have experience with contracts (mine does but ymmv), before signing, and make sure the person looking over the contract knows that a libel case is potentially a problem.

IANAL.
posted by joannemerriam at 12:15 PM on July 27, 2006

You've seen those disclaimers in books that say, "This is a work of fiction. No reference to any person, living or dead, is intended or implied."

This is frankly all you really need. Here are some truths though: if you raise this issue with publishers, it will be a big red flag to them - the AUTHOR HIMSELF is WARNING US that if we PUBLISH HIS BOOK, we MIGHT GET SUED. This will do wonders to increase your rejection rate. Why don't you just include a note with your manuscript, "Dear editor, please don't accept this manuscript. Thank you."

Another truth: Lawyer-vetting is generally intended to reduce one's litigation costs. Since many of the costs of litigation are incurred through being sued (rather than losing a suit), lawyer-vetting is intended not to increase the chance that you'll win a lawsuit but rather to reduce the odds you'll be sued at all. This subtle but important difference has several unpleasant results. Lawyers will do their best to dumb-down your book, eliminating anything even vaguely unfavorable about any character in the book who might be confused with anyone, living or dead.

Things you should do: change all pertinent details. Don't include details which uniquely identify the original subject of the story. Don't make up details which tend to defame the subject if there's any chance he could be reasonably associated with the book. (I.e., if your work of fiction makes the guy a child molester [for which there is no evidence in real life] as well as a murderer, you'd better make sure the original subject isn't identifiable from the book.)

That's all you really need to do. That is, if you're planning, in your heart of hearts, to write a work of fiction that just happens to be based on a true story that you're aware of, you're completely fine, you can write almost anything you want.

If you're planning, in your heart of hearts, to write a thinly veiled hit piece on someone who you see as getting away with murder, intending that people associate your book with the original subject, then you had better have all your ducks in a row, have evidence for all the claims you make, etc. In this case, you might as well use the guy's name and be done with it.

The Boston Globe story linked above is informative, if you read it correctly. An autobiographical work (so you have one point of identification - people associated with the author) very closely identifies a particular family, including directions to their house and close physical descriptions of them and their occupations, and then also describes them in quite a poor light, studying feces and eating dog food and whatever else. If the Globe's summary is accurate, anyone who read the book in the local area knew who was being described, and if the family's claims are accurate, they don't actually eat dog food, study feces, etc. You can see how the family might have a problem with that.

It is very easy in most cases to NOT describe a person so closely.
posted by jellicle at 1:05 PM on July 27, 2006

When you say the names and details are essential are you really sure that's the case?

My advice would be to change everything but the main reason is that the truth is often duller/weirder/more unbelievable than fiction and many books 'based on' true events suffer as a result.

What story is it that you really want to tell... change the location and start writing... change the sex of the murderer but keep other details... change all the details and see if you can still tell a story that does what you want...

I find that when I try to use real life I get completely bogged down. The changes also have the added advantage of not needing a lawyer (and to be honest, what publisher, when offered two manuscripts, will not pick the one unencumbered by potential legal issues?).
posted by itsjustanalias at 1:08 PM on July 27, 2006

IAAL.

If the character is clearly recognizable, you can't avoid liability by making a simple change, such as name or even gender. The criterion is recognizability to the person's friends and associates.

If the person was acquitted, it means only that s/he wasn't found guilty beyond a reasonable doubt. A shred of doubt is enough for acquittal. This gives you an advantage, since the burden of proof in a civil (i.e., non-criminal) case is 50% plus a shred. Acquittal doesn't satisfy that criterion.

You can quote from court papers, such as the indictment, all you like. These are immune from libel claims.

However, EVEN IF YOUR BOOK IS OBVIOUSLY NOT LIBELOUS, the courthouse door is open. ANYONE CAN FILE A LIBEL CASE, on the most farfetched claim, simply by walking in and paying the fee.

People who have been acquitted hate to have the accusation brought up and are extremely likely to sue about it. You'll have to spend a bundle of money to defend even an obviously frivolous lawsuit

Don't kick this sleeping rottweiler. Write about something else. Scatter the juicy details among half a dozen repulsive characters, or perhaps make yourself the anti-hero.
posted by KRS at 1:17 PM on July 27, 2006 [1 favorite]

I know that Anne Lamott addresses this situation in her book "Bird by Bird." I suggest reading what she says, and then reading the rest of the book because it's full of all kinds of other great advice.

The reason I remember this particular passage is because, after doling out all her reasonable advice, she ends by saying, basically, "If all else fails, write that [Character X] has a really small penis. Really, really small."
posted by anjamu at 2:59 PM on July 27, 2006

I don't in any way mean to be offensive, but this is the sort of thing I do when I am trying to avoid getting writing done: "Okay, my pencils are sharpened, my computer is plugged in, I have soothing-but-not-distracting music on, my reference works are all lined up on the table and the phone is unplugged... Wait! What if the content of my work is libelous? I must ascertain this immediately!"

My experience in writing has been that whatever I start out doing changes a lot in the process of doing it. You may find that the details change themselves in the writing process, so to speak. If, once you have a rough draft done, it still looks like it might be legally questionable, hit up any lawyers of your acquaintance to give it a once-over. In the meantime, yes, as you put it earlier, just write the damn thing. Dan Brown libelled the hell out of any psychopathic albino monks there may be in the Catholic church, and he didn't get sued for it. Other things, yes, but no albino monk lawsuits.

Also, Bird by Bird is hilarious and well worth reading.
posted by posadnitsa at 8:19 PM on July 27, 2006