Previously on this blog, I wrote about plagiarism. This week, I’ll cover another way writers can get into legal trouble: libel (the written form of slander). Basically, if you write something derogatory about a living person that you can’t prove is true, and it’s not obviously a comedic exaggeration, you can be sued for libel.
There’s a lot of wiggle room there. If someone is dead, their estate can’t sue you on behalf of the deceased, so it’s perfectly legal to write a story in which someone like Abraham Lincoln is a horrible guy. Also, you can write negative things about someone if you can prove that they’re true.
There’s also an exception for memoirs. Since a memoir is what you remember and different people will remember the same event differently, you can’t get in trouble if your honest recollection of events is different from someone else’s.
There’s also an exception for parody. This is why shows like Saturday Night Live and South Park get away with presenting celebrities doing all sorts of horrible things. It’s obviously comedic exaggeration and no reasonable person thinks the celebrities actually are as horrible as the show depicts them.
Also, it’s okay for you to include celebrities or other real people in your work of fiction if you don’t depict them in a negative way. If you present them in a neutral or positive way, they’ve got no grounds to sue.
If you do want to base a fictional story on a news item, historical incident, or someone you know, and you’re worried you might get sued, be sure to change as many details as possible. Change the names and physical descriptions of people, change the location and time period, and try not to say anything bad about someone that isn’t already public knowledge. The person suing you will have to prove that someone who knows them could recognize them as the character.
Generally, fiction writers in the U.S. don’t have to worry about libel cases due to the fact that judges like to be on the side of freedom of speech. Also, people generally don’t sue for libel, since suing someone draws more attention to the thing you don’t want to draw attention to (a phenomenon called the Streisand Effect). There are exceptions, though, such as the Red Hat Club case.
Libel isn’t the only legal problem with using real people in fiction, however. There is also right of publicity. People have a right to make money off their own life stories. The movie Rocky, for example, was inspired by a real boxer named Chuck Wepner. Although it wasn’t exactly his life story depicted in the film, he sued Sylvester Stallone for making money off his life story and received an out of court settlement.
Someone can also sue under something called right to privacy. If you reveal something private about someone, even if it’s true, you can get into trouble for violating their privacy.
The good news is that freedom of speech usually wins over libel, right of publicity, and right to privacy. Lawsuits like these against works of fiction are almost always dismissed, but there are exceptions, so be careful anytime you write about a real person who’s still alive. I’m not an attorney myself, I’m mainly just thinking out loud here, so be sure to consult an actual attorney if you’re worried something you’ve written might get you into legal trouble.