A woman was awarded $100,000 because a character in a novel closely resembled her.
My first thought on reading the headline was, “Oh, goodness no–” because it would seem to open the doors to just about any kind of person walking in to a court and saying, “This person resembles me. Where’s my check?”
Having read the article, I’m not so sure. It appears that this person had a case, that her life really was the template for the author as she designed the character in the novel, and if that’s the case, I’m not sure.
Last year I posted about the t-shirt that said “Be careful or you’ll end up in my novel.” The truth is, I can’t do that. I find myself compelled to change characters if I find they’re coming too close to reality. When I did try to write a character who was someone I knew in real life, it poisoned the book because I didn’t like that person, and why would I want to spend time in fiction with someone I wouldn’t even want to spend time with over lunch?
While I’ll steal real incidents for my stories, I change them significantly enough that you couldn’t say anyone’s character got defamed. In Honest And For True, a lot of the auto repair stories are my own experiences (and when I needed a new one, you’ll recall, God gave it to me). I’m defaming my car. It’s not going to sue.
As writers, we’re tight-roping all the time. Readers need to feel they can identify with our characters, and so we simulate reality for the characters. Real people are real, so we use the gestalt reality for information. When I’m writing about a woman losing her best friend, the circumstances aren’t the same, and she isn’t me, but I’m drawing on the experience of losing my daughter, and that gives the character the backbone of reality.
Some situations are universals. E. A. Miller told me in a creative writing workshop, “The only four things worth writing about are love, sex, God and death.” And yet when you effectively paint one of your childhood friend’s sins across the sky, you’re responsible for her humiliation. We’d all like to think we made someone else’s life better when they read our story and find inspiration to improve their lives. $100,000 for their pain is the other side.
This is scary. I’m sure someone out there has a similar life to one of our characters. There’s only so many scenarios one can dream up that have NEVER happened before. Out of 6 almost 7 billion people, someone’s life has to be duplicated in writing, ya know? Well, I tend to write fantasy stuff, but, hey, who am I to say what does and does not REALLY happen. Anyway, I wonder if the clause about “the following is fiction…not based on actual events or people,” yada, yada, gives any protection???? (Law and Order gets away with that.)
That’s unlikely. Libel is necessarily personal. To be personal, it needs to be specific, so if you’re writing broadly what you know (which most writers are), then 99.5% of the human population who isn’t US American won’t qualify. Of those who do, I’m sure you can cull a good half to nine-tenths on the basis of age, race, religion and ethnic background. And then you get into when it’s set, where they live, who they vote for, what they do for a living, how they live… there’s not that many people left.
The chances that you will write someone’s life entirely at random is very remote. The chances that you might subconsciously incorporate some of a person you know’s life into a work of fiction is considerably higher, but even that’s not enough for libel. It needs to be close (to the point where the person could be identified by others), personal, intentional and damaging. And if it meets those standards, no disclaimer will save you. Nor should it.
I’ve never been too interested in bringing real-life people into my fiction. I live with these people, so I hardly need to write about them. Plus, if I’m just writing about my life and the people in it, why not stick to memoirs? I want to explore and create – not rehash.
What about the defense of “truth”. If you write that a person is slimy, you might be guilty. If you say he’s been convicted of a terrible crime, and bring evidence of that to your trial, you’re safe, at least in some jurisdictions.
And what about biographies? Some of them dredge up stuff best left hidden. I hate those ones.
From the article, I think the victim had a case. The author should have changed enough that she wouldn’t be identifiable.
Here’s a thought. If someone says one of our characters resembles the, we agree. Then when that person does something we don’t think our character should, we sue the real person for defamation.
I’m sure that would work in the USA.
Holy cow, it might just work. “You’ve harmed sales of my book! My character would NEVER sue anyone! How dare you?” *sob*
Ah, but have you factored in the time to be spent in an asylum for confusing reality and fantasy and for obsessing about the actions of another? 😀
That’s a possible danger. But the kinds of people who obsess about their reputation tend to be well off. They can afford to spend time wondering whether fictional characters are really them. So even if a judge did pack them off to the funny farm you might still be able to get compensation from their estate.
A handy volume to have on hand in this case is Reputation, Celebrity and Defamation Law by David Rolph (Ashgate Publishing, 2008).
No, not them: you, the author, suing them for being too like your characters.
You seem to be confused. Authors never do anything wrong. They are pure and perfect. It’s the readers who let us down. Always misunderstanding and proposing perverse interpretations. In fact, I think we should have a licensing system for readers. They should be allowed to read one of our books, then sit an exam about their recall and understanding. If they pass they get a licence to read the rest of our work. If not, they are blocked by booksellers.
This would solve many problems.
I’m writing to Barnes and Noble right now to see how we can implement this.Maybe they can make you take a test on your Nook and then depending on your score, they figure out what books you can be allowed to download: Dickens? Shakespeare? Rowling? Dr. Seuss?
Then you get the question of level of understanding when a story is written on multiple levels for multiple audiences. Harry Potter–fun adventure or journey through an endless array of literary and mythological allusions?
You also get the problem of schools of literary criticism. “What Freudian symbolism is present in A Tale of Two Cities”? What Marxist imagery runs through “The Martian Chronicles”?
Would cheating be a problem? Could readers retest without buying another device? Could I tweek Jason’s device to only download really cheesy romance novels?
What if I take the test and get my device cleared for PhD level reading, but then my son uses it? Or would he have to login under a separate ID? And what if my interpretation of a text doesn’t match theirs, but is quite valid?
I use my daughter’s public library card when I forget mine at home, and I have never been told I can’t check out an adult-level book with a child’s card.
Because you can check out an adult book with a child card if you have your parent present. Sometimes the adult/child appropriate distinction seems so strange. If a child is of a reading level to manage Emma, why not? I still laugh at the M rating on a simple chess program. Parents are advised that it is not appropriate for kids, and it’s just plain old chess with a teacher who analyzes the game afterward and says things like, “Your best move here might have been rook to E7.”
I wonder if such a system would be a wake up call for those who think they’re smart and aren’t, or if they’d dismiss it as just wrong, driven by the Republican/Democrat/Whatever party to Do Nefarious Things. I wonder if there would be a market for hacking into forbidden books. (“Psst, for $10 I could get you authorized for Anna Karenina”.)
I wouldn’t say the kind of person who obsesses about their reputation is well off. My voice teacher, whom I assume has an average family income, got quite upset when a friend posted and labeled a picture of her at a party. Her entire web presence is available to potential conductors, and at her level, a reputation is important. The same goes with anyone who needs to impress people, especially freelancers.
You know, I keep kicking around the idea of an author being sued by an extra-terrestrial or an elf or something as a goofy bit of flash fiction.
“You must realize it’s impossible to keep vegetables fresh over a 15 light year trip. All we wanted to do was hit a farmer’s market and buy some supplies, but because of your work, every time we even approach farmland, everyone hides.”
Love it! Is there a market for super-flash fiction? Those two sentences alone tell the whole story.