That Crazy Little Thing: Is That My Husband In Your Book?

That Crazy Little ThingIn Kate Bracy’s That Crazy Little Thing, Buddy is an IT manager, who “at six feet five and about two-hundred and thirty pounds” would be hard to miss, even “if he tiptoed in… which he never does.” This description of Buddy reminds me of my husband, who is six foot five, about 220 pounds, and comes from a tech background. Even the exact song Buddy sings when he bounds into the room is one to which my husband knows every single word.*

Jokingly, I asked my husband if he’s ever met Kate Bracy, whose novel begins with a common disclaimer:

This is a work of fiction. Names, characters, businesses, places, events and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.**

Whether or not the characters in That Crazy Little Thing are “the products of the author’s imagination or used in a fictitious manner,” they are mostly endearing individuals (with one or two bad seeds) who come together over the terminal illness of a dear friend and family member. The novel may be predictable at points, but the story is ultimately a sweet one that is well worth reading.***

To the extent an author has based any of the characters, particularly those portrayed in a negative light, on real-life individuals, is a “purely coincidental” disclaimer helpful?

The purpose of a disclaimer like that is to protect authors and publishers from invasion of privacy or defamation lawsuits.

Invasion of privacy cases involve situations in which someone airs in public “private facts” that were highly offensive and not of legitimate concern to the public. Authors aren’t likely to face liability for these types of torts because, as I said in Kiss and Tell”: Why Bloggers Should Avoid Applying this Cliché,:

These are notoriously hard cases for plaintiffs to win, particularly in light of potential First Amendment concerns that limit government regulation (through tort law) of truthful information that has some degree of public significance (often with a broad definition of what matters are significant to the public). See Florida Star v. B.J.F., 491 U.S. 524 (1989).

But that’s for cases where an author publishes truthful information about another under the guise of a fictional, but recognizable, character. What about where an author publishes untruthful information about another under the guise of a fictional, but recognizable, character? Those are often referred to as “libel in fiction” claims, because they are based on the law of defamation. To prove defamation, a plaintiff needs to show a statement is defamatory, untrue, and “of and concerning” them.

In those “libel in fiction” cases, authors are still usually on solid ground, in part because the plaintiff has to walk a tightrope. The more a plaintiff proves the character’s actions are false and defamatory, the harder it will be to prove that people see the character as a depiction of them.

Plus, the publicity associated with suing over private facts is a deterrent to filing suit, which makes court documents accessible to the public. There are times, though, when the damage of the original publication outweighs any further damage to the plaintiff’s reputation from further publicity through a lawsuit.

In these cases, if the similarities between a fictional character and a real-life person are strong enough, a “purely coincidental” disclaimer isn’t likely to help the author much. See, e.g.,Landau v. Columbia Broadcasting System, 128 N.Y.S.2d 254 (1954), 257-58 (“To make [an] accidental or coincidental use of a name a libel would impose a prohibitive burden upon authors, publishers and those who distribute the fruits of creative fancy… The line of demarcation is not obscure. The difference between coincidental use and consciously disguised defamation is one of proof.”).

Authors who draw inspiration from real-life people and events should back up the disclaimer by removing all identifying information and by adding as many purely fictional details as possible. When an author says, “This is a work of fiction,” that should really be the case.

*I won’t disclose the title of the song at this time. Even if my husband wouldn’t be embarrassed by it, I’d be embarrassed for him! You’ll just have to read Bracy’s novel if you want to know what it is.

**As I mentioned in How Realistic Should Fiction Be?, Kurt Vonnegut’s God Bless You, Mr. Rosewater began with the brilliant parody, “All persons, living and dead, are purely coincidental, and should not be construed.”

***Bracy’s That Crazy Little Thing is the 2014 Women’s Fiction winner in the Indie Reader Discovery Awards.

29 thoughts on “That Crazy Little Thing: Is That My Husband In Your Book?

  1. Pingback: My Husband Sees Himself In My Villains – The Misfortune Of Knowing

  2. Miss Alexandrina

    Very interesting post. I’d not really considered the disclaimer in much depth in accord with my own writing. Whilst it’s amusing to see beginner writers creating Mary Sues and clones of their friends/enemies into books, one must remember to drop the habit eventually.

    1. Yes, retaliation through fiction is a risky thing to do!

      I do have a character in one of WIPs who has name that is very similar to a name of someone I know of in real life (I’ve never met him). It’s just such a perfect name for a villain! I have no idea what the real-life guy is like, but to the extent I know any details about his life (like age and occupation), I’ve made it different in the story (and the name isn’t an exact match). If I decide to publish this story at some point, I might change the name. We’ll see… it’s just such a perfect name…

  3. Mariam Tsaturyan

    I love Shakespeare like crazy. I think if I could meet one person, whether dead or alive, it would be him. I don’t want to believe the lies he spread lol. Great post, and amazing blog you have here.

    1. Thanks for stopping by! I think your comment probably relates to my Shakespeare/Richard III post instead of this one. I’m enjoying Shakespeare more now as an adult than I did when I was a kid. He’s a great example of the impact fiction can have on public opinion.

    1. Hi Caitlin! It’s nice when authors stop by (which doesn’t happen very often on this blog, though I have gotten a few emails from them). I practice in an entirely different area of the law, but the legal aspects of writing and publishing have always fascinated me.

  4. Hi there. Thanks for using my novel to make your point, and for saying kind words about it. I do NOT know you or your husband, and did not base my character Buddy on him. 🙂 I also appreciate your legal comments in this post — although it flies in the face of Anne Lamott’s comments on this topic, to the effect that “if people don’t want you writing that way about them, they should have treated you better.” (very bad paraphrase, I think…) You’ve given me something to think about. Thank you!

    1. Hi! Thanks for visiting. I enjoyed your novel, and I’m looking forward to seeing what you publish next. I’m not familiar with Anne Lamott’s comments, but, based on your description of it, I’d say that the risk goes both ways. Sure, inconsiderate and abusive people take a risk that they’ll wind up in someone’s novel, but the author of that novel takes a risk that the a-hole (for lack of a better term) will sue them for it. In most cases, the author will likely win (if you’re a terrible person and the representation is true, then it isn’t defamation), but possibly at the expense of hiring a lawyer and having to litigate it.

  5. This post was very helpful as I have never thought of the legal aspects of fiction. Thank you for the information!

    I also love how you found your husband in a novel. My mom sent me a book a few years ago claiming that the leading characters were exactly like me and my husband; she was right! The personalities and statements were so spot on that I was wondering if the author had unknowingly followed us around for a time! 😉

    1. It’s funny that your mom recognized you and your husband in that book. I enjoy finding characters who resemble people I know in real life. So far, all of the similarities have been purely coincidental! Thanks for stopping by!

  6. I’ve always wondered about those little disclaimers… I read a book not long ago that was a very thinly veiled portrayal of the fall of Britney Spears. I didn’t pay attention to the disclaimer, but the names were changed, yadda yadda yadda. Still. It was so obviously a rehashing of that train wreck it makes me wonder how they got away with it…

    1. Hi Katie! That’s an interesting example. It’s harder for public figures like Britney Spears to prove defamation because she would have to show that the author had “actual malice” against her. Private individuals don’t have to prove that.

  7. I never really thought about whether a character is based on a real or imaginary person in literature. It is all about the story for me. In Law and Order, the TV show they say something similar, but their stories very much resemble real life happenings and people.

    1. Hi Donna! Authors often draw inspiration from real-life sources, but few would probably base a character entirely on someone in real-life without adding lots of fictional details. There are many characters I’ve “met” in novels who remind me of people I know, but the resemblance is just coincidental!

  8. I wonder if I would worry about that sort of thing if I were an author. Characters are obviously compilations of people that the writers have actually known, observed, seen, heard of, etc. Maybe I would be sitting at my desk wondering if I had changed enough details that they became a new character….

    1. Yeah, in my own writing, I do worry about that sort of thing. In one of my WIPs, I’m actually using a version of a name that belongs to someone I know of (but don’t know directly) in real life. I have no idea what this guy is like in real life, so every detail of the character is made up (different professions, different ages, different backgrounds). It’s just such a perfect name… If I end up publishing that story, though, I might end up changing it. We’ll see!

    1. That would be shocking, though I wonder how many people in that position have enough self-awareness to recognize themselves as villains (unless the names are similar).

      An interesting example of a negative portrayal with lots of similarities to a real-life person comes from Michael Crichton. After Michael Crowley wrote a critical profile of Crichton in The New Republic in 2006, a character named “Mick Crowley” showed up in one of Crichton’s books. See http://www.litigationandtrial.com/2010/07/articles/the-law/for-non-lawyers/why-mark-zuckerberg-wont-sue-for-defamation-over-the-facebook-movie/ (quoting from and citing to a PDF of an article that discusses it).

  9. There is a joke about critics writing a negative review or some such ending up as a murder victim in a crime fiction novel that makes the rounds on social media every now and then. I guess following through with that wouldn’t be such a good idea.

    1. No, it wouldn’t be a good idea! One of the more amusing examples I’ve seen comes from Michael Crichton. Apparently, after Michael Crowley wrote critical profile of Crichton in The New Republic in 2006, a character named “Mick Crowley” showed up in a novel. It wasn’t exactly a flattering portrayal! See http://www.litigationandtrial.com/2010/07/articles/the-law/for-non-lawyers/why-mark-zuckerberg-wont-sue-for-defamation-over-the-facebook-movie/ (quoting from and citing to a PDF of an article that discusses it).

  10. Inevitably, authors draw on real life to create their fictional worlds, and that includes the characters who populate them. However, I have never knowingly based a character on anyone I know in real life. I think this holds true for most authors; we’re good at making stuff up. 🙂

    1. “We’re good at making stuff up.” Yes, as authors should be! There have been a few high profile examples of allegedly airing dirty laundry through fiction (or retaliating through fiction), but I think most authors try to be careful when they base characters on real-life people.

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