Most of the time, this doesn’t cause a problem. Even if the real-life versions of your characters recognize themselves, they are often flattered or somewhat embarrassed, but not appalled. It’s when we get a bit closer to the real thing and someone feels their reputation or privacy has been threatened that it becomes a bigger issue — one, sometimes, for the courts.
Authors often win defamation suits, but not always. You cannot assume that the First Amendment will protect you from everything. Here is what every writer should know about defamation and the questions you should ask a lawyer before you beam your character from real life into your creative universe.
What is defamation?
Defamation happens when someone makes a defamatory statement of fact about someone else that is false, leading to injury. Let’s break that down.
- A defamatory statement: The statement/information hurts someone’s reputation in the community. They might be subjected to ridicule or be shunned by other members of the community as a result.
- Of fact: A reasonable person would see the statement as fact.
- That is false: The statement isn’t actually true.
- Causing injury: The person claiming defamation must be able to show that the statement caused harm to his/her reputation. Other people must be able to connect the statement to the person/know it is about him or her.
Okay, so that limits your writing, right? Maybe not. The interplay of defamation and your right of free speech is complex. It is a good idea to sit down with a lawyer to discuss this issue, and other legal issues that could affect your story.
Questions to ask yourself (and a lawyer)
Here are some things to consider when you are developing your character:
- Will it be obvious to the public who your character is modeled after?
- Is your character a public figure?
- Did you change your character’s name, physical description and other elements to reduce the chance he/she will be recognizable?
- Is what you are saying about the character true? If not, is it couched in opinion or hyperbole?
- Could what you are writing hurt that person’s reputation?
- Does the public already know the facts you are sharing?
- Do you plan to sell your work/put it in the public eye?
- Are you including a disclaimer that any resemblance with real persons is coincidental? Should you?
Any writer should ask these questions anytime their character resembles a real person. The questions become even more important when you want to write a biography, memoir or script based on someone else’s life story.
There is a lot to think about as a writer. A lawyer can answer the legal questions so you can focus on what you’re best at: Writing something great.