In 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.