How do I cover my ass when writing a juicy memoir?
May 27, 2014 7:30 AM   Subscribe

I am writing a memoir, in which living people, some of whom I am estranged from, will be portrayed. I will be changing any details which could lead to them being identified. I will be publishing it under a nom de plume. What else, to protect myself and them, legally and otherwise, do I need to know?

One of my main concerns is that if I change too many details, then I will end up with fiction and if I call it a memoir I will be accused of fraud. But it is important to me that this book be considered creative nonfiction, rather than fiction. Is that possible? If so, where is that fine line drawn?
posted by anonymous to Writing & Language (10 answers total) 5 users marked this as a favorite
If you are self-publishing you will need to get a lawyer. You cannot fudge enough to actually legally protect yourself. The line is drawn by a legal professional, and will probably involve getting releases from the people you're talking about.

If you will be publishing this through a traditional publisher, they generally obtain the lawyer for you. Your agent will have more information.
posted by Lyn Never at 7:50 AM on May 27, 2014

Might it be possible for you to combine people here and there and form more obviously "not a person who can sue me" characters?

I'm not familiar with actual legal details, that being said.
posted by mr. digits at 8:18 AM on May 27, 2014

Don't libel people. If you can avoid doing that, you're fine beyond just pissing people off.
posted by Sara C. at 8:26 AM on May 27, 2014 [2 favorites]

I am not a lawyer, just a journalish who has taken a media law class. This is not legal advice.

The quickest summary of what I spent hours in a class learning is this:

"Can't be identified" is almost certainly not true, and many cases have proceeded where the number of people who could for sure identify someone based on details on the page could be counted on one hand. So don't assume you can anonymize things well enough to make problems go away.

Truth is a defense against libel, as is statement of opinion (when such things are bright-line; not everything is). The law well protects you in this regard, but...

... one of the biggest issues is being right by the time you get to the poorhouse. Does your state have a SLAPP law? Are the people you're writing about deep-pocketed enough to punish you with lawyers even if they don't eventually win?

Truth is not a defense against revelation of private facts, which is distinct from libel. The law recognizes that there's a difference in revealing things about the sex life of married men Brad Pitt and Barak Obama vs things about Joe Schmoe. Thrusting a nobody into the limelight by virtue of salacious things and no action of their own can bite you in the ass (and not in an exciting memoir way).

Libel laws are state matters, so your concern is where you live and where a litigant can convince a court that you can reasonably be considered to be present in. So if you consistently travel between Ohio and Illinois on business you might be ordered to appear in either and need to care about each one's libel details. If you're not the New York Times it's unlikely you'll be compelled to Alabama but odder things have happened.
posted by phearlez at 8:46 AM on May 27, 2014 [1 favorite]

RE: protection. If you're in America, change the names and you're pretty much fine. If you're in England (with very different libel laws), you need to hire a lawyer to work up your strategy.

Re: fiction vs. memoir, I'd suggest that the genre in which the work is published is a marketing decision best determined by your publisher.

If you're self-publishing, call it whatever the hell you want to. And you're welcome to lie. Welcome to the arts.
posted by Quisp Lover at 8:55 AM on May 27, 2014 [1 favorite]

The thing is, even if truth is a defense against libel, no precautions you take will protect you from being sued. The person you are writing about can claim they are identifiable despite the fictional name in the book, and that you have ruined their life. All they need to do is trot out a few people who say that they read the book and totally guessed who you were writing about. Your nom de plume means nothing, it is easily penetrated by the plaintiff's lawyer serving subpoenas on your publisher or self-publishing vendor. They could sue you knowing full well that you have a good defense, just to make your life miserable. And chances are, your lawyer would tell you to make a cash settlement to avoid the risk of a huge judgment from a jury. So I would recommend working through a lawyer to get releases.

All that said, it does depend somewhat on the subject matter, ie., whether you are describing them as doing something heinous, or you're just saying they have generally unpleasant personalities.
posted by beagle at 9:13 AM on May 27, 2014

Just make it fiction. Play around with the facts. Relationships. Use reality to inspire and then heighten it to make it even more interesting.

Honestly, if you're a nobody (no offense) why does anyone want to buy your memoir if you're writing under a nom de plume? People will just assume it's fiction anyway.
posted by inturnaround at 9:15 AM on May 27, 2014 [2 favorites]

If you're in America, change the names and you're pretty much fine.
This is a particularly excellent example of why you should not obtain legal advice from random internet commentators. The standard is whether or not the person is "identifiable."
posted by Lame_username at 9:50 AM on May 27, 2014 [3 favorites]

I am a lawyer experienced with media and entertainment work. (I worked in that field before law school.) "Just don't libel, otherwise you're cool" is poor and potentially harmful advice. There are a couple other issues you need to consider. The first answer in this thread is the correct one: this isn't an issue the Internet can answer for you. You need an attorney. And your attorney isn't going to be able to answer immediately upon sitting down, either. This question requires familiarity with your particular circumstance—ie, your book.

If I'm reading your question correctly (mostly future tense), you don't yet have a substantial manuscript. My conversational, editor-to-writer, non-legal, I-am-not-your-lawyer advice would be to just write. There are no rules about what you can write, only what you can publish. (Eg, diary vs letter.) Your manuscript will require significant edits anyway, so just figure this is going to be among them. The biggest hurdle for 99 percent of writers is getting to the initial finish line. Worry about that first, and save for later the concern of what can be published versus what needs to be deleted.

Having said that, if you want to keep an advance eye on the issue, you can think about being kind rather than juicy. How that may affect your potential sales or the mostly marketing distinction between fiction versus creative nonfiction...? Those require a lot more detail than you've provided here, and they're squishy lines anyway. If you will be working with a publisher, you may end up with an editor whose collaboration will help you immensely in navigating this. If you will be self-publishing, I would gently suggest your sales will probably be unaffected by juiciness so why not be kind. Good luck.
posted by cribcage at 9:52 AM on May 27, 2014 [12 favorites]

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