Michael J. McDonagh

An established writer who recently went to work becoming an author, trying valiantly to make someone give a damn and chronicling the process.

Putting Real People in Your Made-Up World Part Two: Don’t speak ill (or well) of the dead (or living, if you can help it)

Using real people in our fictional writing presents a couple of problems. Aunt Myrtle not speaking to you at Easter because the three-headed demonic fire troll your hero killed to stop the apocalypse was named Myrtle is not the end of it, either. Problems can arise with regard to defamation (which is the legal term for talking shit about someone) and, a relatively new development, the right of publicity. Today’s entry is about defamation of the living and the tricky proposition that you can’t libel the dead. By tricky, I mean don’t believe it.

Defamation: Just don’t go there.

As a general rule, the safest course to take is not to say bad things about other people. Bear in mind, your characters are not people, no matter how real they seem to you. Talk smack about them all day long. Some of them should be despicable human beings. Just make sure your characters are fictional. If you want to write about an out-of-control 13 year-old rock musician, go for it. Do not name said musician Justin Bieber or, for that matter, Bustin Jieber.

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Which really brings us back around to the issue raised in the last post. Even if you set out to write a character in a completely nondefamatory way, you can accidentally stray into that territory. You can also realize that your boring Gary Stu character needs some childhood trauma, a dark secret, or to do something despicable to make him more believable. Writing about a person who can sue you for doing that will kill your flexibility as a writer. There are some very craft-oriented reasons to steer clear of that problem altogether. The quality of your narrative should not be governed by Justin Beiber’s whim.

You can’t defame the dead (sorta)

In theory, it goes like this: Defamation is a personal tort. Personal torts do not outlive the person who was harmed. Therefore you can’t be sued for defaming someone who is dead.

In reality, Colorado, Idaho, Georgia, Kansas, Louisiana, Nevada, North Dakota, Oklahoma, Utah and Washington that have criminal statutes regarding defamation of the dead. The definition of libel in Texas includes written words that “tend to blacken the memory of the dead.” In short, the oft given advice, “you can’t be sued for defaming the dead” is not accurate. Also, if the person was famous, it doesn’t matter whether you’re defaming or not, you may run square into the quagmire that is the right of publicity, which is going to need its own blog post.

State statutes aside, there are reasons to steer clear of talking smack about people who used to be alive. For starters, if they were alive in recent memory, you probably aren’t just talking about the dead person. A comment that the dead guy fathered three illegitimate children is, effectively, a comment that three possibly living people are bastards. Bad things don’t happen in a vacuum, and the other people in the general area when they happen can end up tainted by your comments. Then you can have some very alive plaintiffs unhappy about what you wrote.

Alleged gangster John Dillinger provides an allegedly interesting example. He has a grand nephew who is more than happy to sue people portraying his shirttail relative, who has apparently been alleged to be a gangster by some people, in a bad light. Just so we’re clear, here, the grand nephew of this guy:

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Who the FBI thought was bad enough to do this to:

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may well sue you if you portray his great uncle in a bad light. One such lawsuit allegedly Shut down the Dillinger museum for an alleged five years.

The safest answer, again, is to bask in the fact that you are writing fiction. As interesting as Dillinger was, you should have no problem writing your own, not-alleged gangster who is more interesting. Plus, your gangster can be a despicable cad, if that’s what the story calls for, without you having to look over your shoulder.

Real people you really need to use.

Just because we don’t want to write nasty things about people doesn’t mean we can avoid writing about real people all the time. Good luck writing about America in the 1980s without mentioning Ronald Regan. Miley Cyrus probably isn’t critical to your narrative, but if you want to work a passing twerking reference into your book, you shouldn’t be afraid to do so. And you are reasonably safe as long as: (1) the thing you are referring to is an event that actually occurred, not gossip or rumor; or (2) the thing you are referring to is entirely opinion (“Bieber is rich and all, but he seems pretty messed up, too” is fine. “Beiber drives drunk all the time,” is not). Plus, in either case, (3) treat it more or less we treat product names based on fair use under trademark law. Just like, if done right, your hero can love Pink Floyd without violating copyright or pound Jack Daniel’s whisky like there’s not tomorrow without violating trademark prohibitions, you can mention people in your narrative without running afoul of this rule. More pointedly, you can mention famous people without running afoul of the right of publicity, which we will discuss in another post.

Another resource and the bottom line:

Attorney Mark Fowler writes a blog called rightsofwriters.com/ that is a treasure trove of information about dozens of legal issues that writers are presented with. His blog is well worth a good look whenever you have questions about this type of issue. In a post on application of libel laws to fiction, he quotes Rodney Smolla, a seminal figure in First Amendment law’s explainiation:

When an author wants to draw from a real person as the basis for a fictional character, there are two relatively “safe” courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character’s conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character’s reputation, but make substantial efforts to disguise the character … to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person’s attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

Since I find myself constantly arguing in favor of the middle ground on everything from outlining vs. pantsing to use of adverbs and following advice from Nobel laureates, the irony of this advice is not lost on me. This is the one area where the middle ground is not where you want to be.

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3 thoughts on “Putting Real People in Your Made-Up World Part Two: Don’t speak ill (or well) of the dead (or living, if you can help it)

  1. Harald Johnson on said:

    New subscriber here… loving your blog.

    Q: What about real people that have been dead a LONG time? I’m talking early 1600s. People like Henry Hudson. I have a few characters about whom I know something (they even have Wikipedia pages), but a lot is not known about them. Because my genre is Historical Fiction, I want to include them, but I also want to “expand” them beyond what’s known. If a long-dead guy was basically a jerk (not Hudson), can I make him a super-jerk?

    Thanks!

    • You are absolutely in the clear with anyone from that far back, legally speaking. It does raise an interesting ethical question, though. It’s a fine line in terms of how much liberty you can take with the truth outside the bounds of the law. But for anything that is reasonably accurate or even wildly and obviously inaccurate (Abraham Lincoln Vampire Hunter, anyone?) I don’t see any problems either way.

      Thanks for asking!

  2. Harald Johnson on said:

    Thanks, Michael! Ready for your next post ;-).

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