Mr & Mrs - all in the family

Saturday, September 18, 2010

FEAR of Being Sued Freeze Up Writers!

A newbie author about to place her book up on Kindle, all set to go, and suddenly she freezes up, terrified due to her having created “authentic” settings and naming real people, places, and things—issues like maybe the OJ case, Lady Gaga, Obama, Hanity, Beck, Stewart, Colbert or a local malt shop.  Come on, please!  Never let FEAR run your book.  Below my comments  on this issue are the “rules” or many of them (like never use more than six lines of a copyrighted song all in one block in your book), but before you read the “rules” know that libel is hard as hell to prove and malice aforethought nearly impossible to prove (what was going on in his mind when he ‘attacked’ her character?).  But by all means you cannot obsess over such an issue and hope to write a decent novel.

While Carla Rene (who has graciously added here the rules of the game to stir clear of being sued) is thorough below and absolutely correct, I have broken just about all of these "rules" of the road at one time or another and guess what, in fact, have never been sued for defamation on any score. While I use real places, real towns, cities in just about every -- no ALL of my fifty ODD books, no one has come charging after me. The Field Museum of Chicago is where a particularly ghastly "reincarnation" of my most awful killer, Mad Matthew Matisak is finally cornered and as he likes to collect human spinal cords for his unusual splatterpunk art showings, his death comes at the hands of a spinal column when he falls several stories onto the bony protrusions of a dinosaur display while all the monied patrons of the Field Museum are sipping their wine and listening to a private lecture this evening.  I do not expect to hear from the Field Musuem as they were in no way defamed.  If I have any prejudice it is against the rich--whom I privately do detest.

I have also routinely placed names of people in my books who have won contests to be there with the caveat they just might die in the book. Titanic 2012 a lead character has to go but her namesake won a contest I ran for the privilege. I also have a poker game going on while Titanic is going down and the band is playing wherein all the guys around the table are writer friends, all named by name. Year ago Steve Savile who is cranking out novels and novellas left and right now won a contest, so he is both in my books for two reasons, friend author and contest winner in more than one book, and I once armed Joe Konrath in an Instinct title, giving him a gun!  He is among those going down with Titanic around the poker game that deteriorates into a brawl that only Inspector Alastair Ransom can win.  Among the authors Ransom beats down is one named Walker as well.  I also pull the infamous/famous Capt. Edward Smith down from the pedestal that history and legend has afforded him in Titanic 2012. I could not have done that if I was paralyzed by fear that his ancestors today might come after me with a law suit for defaming a dead man. For that matter, the descendants of Nathaniel and Judge Hawthorn(e) or Cotton and Increase Mather or anyone named Putnam (maybe the publisher Putnam) will come after me for a writ of execution for what I said about these family names in Children of Salem? Sure...I am shaking in my boots. They're all long dead for one thing so even if I were malicious it can't hurt them!

There is hardly a product I have not used in my novels--just as Stephen King utilizes Excedrin and Coca-Cola, as serial killers and nutbags have to eat and drink and stave off those headaches as well as anyone. Aloha airlines gets pegged for bad service or poor peanuts if the setting is Hawaii, and if in London there are the shops now aren't there but I also created a cathedral out of a church on a certain street and cemetery only because I really loved the name of the place.  I don't attribute blame or cause to any of these places, and just because the killer is a big Elvis fan, I don't attribute his killings to have been motivated by Elvis' music or Gordon Lightfoot for that matter but they all run through my books as they run through life.

Bottom line is KNOW the rules as Carla has laid them out here and then judiciously put them aside because no one can write well worrying about them. I ignore them just as much as I ignore the worry that my mother will read this shit.  Fact is, my eighty-five year old mom DOES read all my books and she peeks over the top, checks me out, mentally saying, "OMG, did this come out of my womb?"

Anyone who remain at all interested in this subject -- just write your book without malice aforethought toward anyone--a thing near impossible to prove and trust that court costs will bounce back to any idiot who thinks otherwise.

Okay; here's what I've gleaned on the subject over the years from other published writers and publishers.

For writing fiction:

It's best advised to not use the name of a real town, real address or real persons.  However, you CAN use the real names of all of these, AS LONG AS you do not portray them in a negative light, worthy of libelous action.  (in The Gaslight Journal, I set the town in fictitious Faritown, NY (which some publishers do NOT like), but Isabella, my heroine, is just returning from Christmas break from Radcliffe--the first year they allowed women in their classes.  Along with her student status, however, that is the only time it's mentioned, so I've written nothing detailed enough for libelous action.)

If using the name of a public business, that's fine, as long as you do not write something libelous--you do not need permission. 

You can't portray the location or business in a bad way.  During the movie "Castaway," the FedEx people had a major heart attack AT FIRST, because it was their plane that went down, losing all that mail.  However, after seeing the treatment of their brand, they reaslied their brand awareness had risen dramatically in Asia and Europe upon the movie's release.  Kinda stands to reason THAT screenwriter didn't procure permission, did he?)

If you're using the name of a private business, then you need permission.   (I mention the names of several private businesses in The Gaslight Journal along Main street, and they are all fictitious names.)   Can't afford cat litter--automatically KNOW how much trouble a whopping-ass multi-million libel suit would skank up my day.)

For writing non-fiction:

Public names such as addresses, cities, street names and public business are fine.  Private business again, need permission.

From The Chicago Manual of Style 15th Edition:
Section 4.66 on page 132 under Author's Responsibilities:
"The author should also warrant that the work does not libel anyone or infringe any person's right to privacy." :-)
Streets can't sue you for privacy; however, town councils and city governments can IF the address of your specific street was the cause somehow, of something horrible that painted the town in a degrading light.  Now I'm not sure it was treated as fiction or non-fiction, which would make a different, but I'm positive that when the screenwriters for the movie Mothman Prophecies had to at least notify that city's council that they were involved in a screenplay treatment, because announcing to the whole world that an entire town comes equipped with its own monster/haunted entity, well, just wouldn't boost the church tourism, ya know??
However, again, it's non-fiction, then they play by their own set of rules.
It is the responsibility of the author to check out all these facts during the writing of the book, and not to rely on an editor, agent or publisher to sort those issues.
And of course, don't ever use real people in your stories.  Besides the obvious defamation and libel, another interesting reason:
But far more to the point in fiction copy, real people--taken straight over and put on the page of a story--are dull.
What this means is, real people aren't vivid enough.  Good characters have to be constructed, not copied from actuality.

Now as I, Robert W. Walker, once had someone come after me because she ‘thought’ she had a case but her lawyers knew better, I have had some close encounters. So sure weigh it all up but NEVER obsess to the point of freezing or becoming paranoid or paralyzed over these issues. The nonfiction writer has to worry FAR, far more over such things as the names of people , places, and things he writes about. But folks THIS IS FICTION, make believe, and no right-thinking person or judge in the land can tie it to malice aforethought or libelous action unless you left a huge paper or verbal trail that this was the intent of your book, to blow the lid off a company or to destroy a life or reputation.  That’s my Bottom Line on the subject and I hope some Write Adie for you. Gee…hope I don’t get sued for writing this blog…. hehehehe!
Robert W. Walker

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