Fiction Based on Real People and Events By Lloyd J.

Jassin Unsure of possible legal ramifications, and unwilling to test the limits of creative expression, many novelists unduly self-sensor when writing fiction inspired by real people and events.i Minimize Claims of Libel in Fiction Because libel law varies from state to state and because defamation claims are very factspecific, it is impossible to deduce a simple list of steps to avoid possible libel suits for writing what you know.ii However, there are certain steps an author or publisher can take to reduce the risk of being sued for libel in books that blend fact and fiction. 1. isclaim, disclaim, disclaim. !he best disclaimer are the words "# $ovel" on the cover of a book. !he reverse title or copyright page, should include a more detailed disclaimer. # typical disclaimer may say, %!his is a work of fiction. $ames, characters, places, and incidents are either products of the author&s imagination or are used fictitiously. #ny resemblance to actual events or locales or persons, living or dead, is entirely coincidental.' (Ursula Hegi, Stones from the River, copyright page). # disclaimer about disclaimers is in order. *abeling a work fiction, does not guarantee immunity from lawsuits if readers reasonably believe what was written is both defamatory and true, and . +f the character in your book closely resembles a living person, and what you have written is defamatory, caution is called for. ,ne $ew -ork .ourt has found that in order to prevail in a libel suit, the statements made about the fictional character must be so closely akin to the real person claiming defamation that a reader of the book who knows the real person would easily link the two.iii +n order to prove libel, you must show falsity.

!herefore, a writer&s most important defense is the truth. #lternatively, if writing about someone who is identifiable, leave out anything that is both harmful and untrue. /. .hange details to distinguish the characters from actual people. isguise your character from the real person on which he is based by giving him different 0ualities and characteristics.iv .hanging the physical description of the character, such as

age, sex, ethnicity, height, girth, hair and eye color, and giving him a discernible mannerism or personality could further separate fiction from reality. ,f course, similar names should be avoided. .onsolidating several real-life people into one fictional character is another way to make him unidentifiable as a real person.v 1isk is further reduced if the character is likable, not a nefarious evildoer.vi 2. 3lace the characters in a fictional setting. .hanges in geographical location, 4ob, and actual events can help make the characters unidentifiable. 3eriod pieces that take place in another era, science fiction and fantasy, provide little ammunition for libel suits. +n these instances, it would be unreasonable to believe that the author was describing actual facts about a living person, or actual events in which she participated. Unlike science fiction and fantasy, realistic literature, which draws from real life, can be defamatory if what is written is harmful, believable and untrue. 5. .onsent. .onsent is a complete defense to libel. +f you find that there is a real person living in the same town or city with the same name as your character, then you have a few decisions to make. 6irst, you could change the name of your character to avoid possible problems. !he other option is to ask permission. !his is a common practice in the motion picture industry. !his entails having the named individual sign release agreement . +f you decide to obtain

releases, make sure the release you are using provides sufficient protection for you and your publisher (or motion picture) partners. 6or example, you want to be released from potential claims of defamation, invasion of privacy and violation of the individual&s right of publicity. in all exploitations of the work in media now known or later invented. !hat means that the person agreeing to the release can make no claims against you if the book becomes the basis of a motion picture.vii -ou also want the release to apply to your successors, assigns and licensees, including your publisher. *astly, you could choose to do nothing about the names and risk litigation. !his option is ideal if the character and real person have little else in common other than their names, or if the depictions are benign.viii 7. .onstitutional 3rivileges !he 6irst #mendment stands guard over our freedom to express opinions and publish information. #s such, public officials and public figures cannot recover monetary damages unless they can show that what was published was published with reckless disregard of the truth. 8nown as the "actual malice" standard, the focus here is on the defendant&s state of mind. +f the mistake was honestly made, no actual malice exists. However, when writing about private individuals, a plaintiff need only show negligence. !he negligence standard is much easier to satisfy than the "actual malice" standard, and can be triggered by failing to adhere to reasonably accepted 4ournalistic practices. 6or this reason, if your fiction or nonfiction writing is based on your own life, and the lives of those around you, you may wish to leave out anything that is false and defamatory about an identifiable living person. Conclusion

9ost publishing agreements contain indemnification clauses that seek to relieve publisher from any liability regarding the content of the author:s work.ix !he clause usually states that if the author breaches any of her representations or warranties, she indemnifies the publisher against the costs resulting from any claim against it. 6or this reason, authors should review their manuscript for potential liability before submitting it for publication. !he first step in vetting a manuscript - whether fiction or nonfiction - is making a list of every person, organi;ation, or product mentioned or described in the work. 3eople who are not mentioned by name, but who may be identified by implication, should be placed on that list. 6rom this list, determine if any statements are harmful to a living person or company&s reputation. +f so, you have to decide whether you can defend a claim brought against you. CASE A ! C"MME #AR$

+n Bindrim v. Mitchell, </ .al.#pp.2d =1, 177 .al. 1ptr. /<, cert. denied, 555 U.>. <?5 (1<@<), a psychologist successfully sued an author and publisher of a popular novel for libel. r. Bindrim alleged that the character % r. >imon Herford' in 9itchell:s

story, Touching, was actually based on him, but was portrayed in a way that defamed his reputation. Bindrim offered group therapy sessions called %$ude 9arathon' as a means of helping people to shed their psychological inhibition with the removal of their clothes. Ahen 9itchell wanted to attend a nude therapy session, she verbally assured Bindrim that she would not write about the sessions. 9itchell also signed a contract that prohibited her from disclosing any information regarding what transpired during the session. $otwithstanding this agreement, 9itchell:s novel depicted nude therapy sessions conducted in >outhern .alifornia by psychiatrist r. >imon Herford. Aitnesses testified that when reading Touching, they could identify Herford as the real-life doctor. Bindrim convinced the 4ury that despite the author:s attempt to disguise the fictional doctor from the actual one, r. Herford was based on Bindrim. !he author:s attempts to mask her character included a name change, slight alteration in his physical characteristics, and changing the occupation and educational background B r. Herford was a psychiatrist with an 9. . while Bindrim was a psychologist with a 3h. . !hese alterations did not outweigh the similarity between what transpired in the book:s nude sessions and Bindrim:s actual nude sessions. Because he and others recogni;ed him as r. Herford, Bindrim argued that 9itchell:s inaccurate portrayal of him and of the $ude 9arathon resulted in libel. 6or example, Bindrim asserted that he was libeled by the fictitious

doctor:s use of obscenity during the sessions which Bindrim did not in fact use. 3rior to printing, 9itchell assured her publishers, oubleday, that the character in her book was not identifiable as Bindrim, but the author:s indemnity was not sufficient to insulate oubleday from liability. !he author and publisher were found to be 4oint tortfeasors. Bindrim received compensatory damages of C7D,DDD as 4oint and several against both defendants and punitive damages of C/7,DDD against the publisher.

!%SCLA%MERE !his article is not intended as legal advice. Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article. Be aware that the principles contained in this

article are sub4ect to exceptions and 0ualifications. !hus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution, and obtain permission or an appropriate release.

Lloyd J. Jassin practices publishing, entertainment and +3 law. Based in $-., he analy;es, negotiates and drafts entertainment contracts, and consults for other attorneys on +3 and publishing industry issues. He has been widely 0uoted in in the news media, including !he $ew -ork !imes, Aashington 3ost and 3ublishers Aeekly. Before becoming an attorney he was 3ublicity irector of the >imon F >chuster 1eference Group H 3rentice Hall 3ress. Before forming his firm he was an +3 associate with .owan, *iebowit; F *atman. 3rior, he worked in !I syndication and legal affairs at Iiacom. # graduate of Ben4amin $. .ardo;o *aw >chool, he is a member of the $- and $J bars. He sits on the advisory board of !he Beacon 3ress, #merica:s oldest indie press, and is counsel to the +B3#. He&s an ad4unct professor at $-U >.3>, where he teaches a course on digital rights, and coauthor of !he .opyright 3ermission F *ibel Handbook. .ontactE 4assinKcopylaw.com, or visit www.copylaw.org.

9artin Garbus and 1ussell >mith, New York Courts Deal Blow to Claims of i!el in "iction, $LA -,18 *#A J,U1$#* , (9ay @, 1<<1) (citing Middle!rooks v. Curtis #u!lishing Co., 512 6./d 151, 152 (5th .ir. 1<=<) and #eo$le on Com$laint of Maggio v. Charles Scri!ner%s Sons, /D7 9isc. ?1?, ?/1, 12D $.-.>./d 715 (Brooklyn 9ag. .t. 1<75)). ii **-, J. J#>>+$ F >!LIL$ .. >.HL.H!L1, !HL .,3-1+GH! 3L19+>>+,$ #$ *+BL* H#$ B,,8 M 1D (1<<?). iii >ee S$ringer v. The &iking #ress, <D #. ./d 217, 57@ $.-.>./d /5= (1st ept. 1<?/) (finding that superficial similarities such as a common first name are insufficient to identify the fictional character with the real person). iv **-, J. J#>>+$ F >!LIL$ .. >.HL.H!L1, !HL .,3-1+GH! 3L19+>>+,$ #$ *+BL* H#$ B,,8 M 1D.@ (1<<?). v 1obert 8olker, Negotiating Ti$s for #roducers Making Television Docudramas' (andling Releases , = L$!L1!#+$9L$! *#A F 6+$#$.L, >eptember 1<<5. vi #lan J. 8aufman, ) *riter%s Counsel+ Defining i!el in "iction, 3ublishers 9arketing #ssociation $ewsletter, (,ctober, /DD1), availa!le at httpEHHwww.pma-online.orgHscriptsHshownews.cfmNidO77<. vii 1obert 8olker, Negotiating Ti$s for #roducers Making Television Docudramas' (andling Releases , = L$!L1!#+$9L$! *#A F 6+$#$.L, >eptember 1<<5. viii >ee S$ringer v. The &iking #ress, <D #. ./d 217, 57@ $.-.>./d /5= (1st ept. 1<?/) (finding that superficial similarities such as a common first name are insufficient to identify the fictional character with the real person). ix #lan J. 8aufman, ) *riter%s Counsel+ Defining i!el in "iction, 3ublishers 9arketing #ssociation $ewsletter, (,ctober, /DD1), availa!le at httpEHHwww.pma-online.orgHscriptsHshownews.cfmNidO77<.&&