Authors Can’t Bullshit Around Libel & Invasion of Privacy Torts

We’ve all seen the disclaimer on the first page of a book that asserts redundantly that a particular work of fiction is, indeed, “a work of fiction”:

“Any resemblance to persons living or dead is purely coincidental. This is a work of fiction and are either products of the author’s imagination or used in a fictitious manner.”

Recently, the Huffington Post featured a piece by author Kristen Houghton, who wrote:

“Legally every published book should have the [“purely coincidental”] proviso. Every fiction writer I know is happy to have the statement included on the first page of his or her book. It’s as much a protection for the author as the copyright and ISBN number.

With all due respect to Ms. Houghton, the disclaimer offers far less protection than the copyright, which gives an author exclusive rights to the distribution and use of his or her book. The disclaimer at best offers about as much “protection” as the ISBN number, which is for identification and promotion purposes. Really, neither the disclaimer nor the ISBN number offer much legal protection at all.

As I discussed in That Crazy Little Thing: Is That My Husband in Your Book?, authors and publishers slap the disclaimer on the first page of books to deter individuals who bear a resemblance to characters in the book from filing invasion of privacy or defamation lawsuits.

However, the words in the disclaimer aren’t going to outweigh the words in the book.

If a fictional character and a real-life individual are uncannily similar, a generic assertion that “the resemblance to any persons living or dead is purely coincidental” isn’t going to mean 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.”)

In other words, authors can’t bullshit their way around defamatory or invasive remarks. The true test is whether the character in a work of fiction is actually identifiable as, and the work is defamatory towards, a real person. The vast majority of works of fiction are “protected” by actually being fiction, and the tiny number of works that defame people — something that will only happen if the author intends as much — will not be able to evade liability with a disclaimer.

Though Ms. Houghton’s Huffington Post piece begins with a reference to the disclaimer’s supposedly protective effect, the rest of the article is about whether authors bear a resemblance to the characters in their novels (and the author certainly isn’t going to sue herself for “invasion of privacy” or defamation!).

She writes, “There’s always a piece of an author in each character.”

I have a tendency to believe that authors are similar to their main characters, partly because it makes me feel like I actually “know” something about the writers behind my favorite novels. I suspect, though, that the litigious J. D. Salinger was far less likable than the troubled, but endearing, Holden Caulfield, and that Emily Brontë was probably far more likeable than just about anyone in Wuthering Heights (which really sets a low bar for humanity).

Two Lovely Berries_Cover August 2014As for me, I don’t identify much with the main character of my own New Adult novel, Two Lovely Berries. Nora Daley is a struggling 20-something who faces a profound loss related to the legal work I do but otherwise unlike anything I have experienced directly. She and I are both from the Philadelphia area and have similar educational backgrounds, similarities that I hope add to the realistic feel of the story and the sense of “place.” However, unlike Nora, I am not a classicist (but my sister is), and unlike Nora’s father, mine is not a lawyer* (but almost everyone else I know in real-life is).

I am not my main character, but I do make a cameo in the story in a scene drawn from an experience I had in a gourmet foods shop. I imagined an entire life for the cashier who made a passing remark about a spatula to one of my twins.

So, what about you?

Writers, how similar are you to your characters? Theo Fenraven, are you anything like Gray from the Precog in Peril series? Roy McCarthy, apart from the running, do you share any other similarities to the title character of Barry?

Readers, do you feel like you “know” authors because you’ve gotten to know the characters they’ve created?

____________________________________________________________

*Nor is my lovely dad an a-hole (Nora cannot say the same about her father).

8 thoughts on “Authors Can’t Bullshit Around Libel & Invasion of Privacy Torts

  1. Road to Servitude

    Can’t say too much here as it’s unpublished (currently), but some way into writing an extended piece of fiction, I found that two of the characters (both male like me) represented two aspects of my own personality; not my life as such (events etc.), but my own disposition/character/personality… Spooky.

  2. Of course, it’s wishful thinking that you can disclaim your legal obligations. Like those ‘disclaimers’ that runners are asked to sign on race entry forms – not worth the paper they’re written on.

    Well, as to ‘Barry’! I wrote Chapter 1 about 10 years ago and it had more than a touch of autobiography about it. But it eventually moved away from that. No fault of Barry’s but my novice writing made both him and his wife Lara very superficial characters with no flaws. I’ve got great admiration for writers that can explore character deeply.

  3. 🙂 Gray is the person I would be at my best, and all characters in my books are pieces of me, I suppose, as they all spring from my imagination. I may base some characters superficially on people I see or know, but that’s all it is: superficial. I know very few people well enough to portray them accurately to the point where someone would know who they are if they popped up in one of my books.

  4. SF

    I enjoyed the Houghton article (it’s neat to think about how authors are like/dislike their characters), but I’m inclined to agree w/ you about the legal importance of the disclaimer. It was kind of weird that the article compared it to the ISBN & copyright when the legal importance of the disclaimer has nothing to do with the topic.

  5. I would think writing would be an easier process if one has themselves as a basis for the main character. It would seem to generate more creativity as the author lives vicariously though a fictional life of their making. But… I do suppose using a real person as a basis gives a writer a jumping off point to weave a new and more interesting story. I never understood why tying story to a real happening or person the author is unfamiliar was wrong, as long as it went in a completely different direction. So what if similarities could be drawn, especially if it was a well publicized news piece.

  6. As I began reading this, I thought back to the TV show Barney Miller and the novel the show’s Detective Harris wrote, Blood on the Badge. He said some none too flattering things in the book about a fictionalized version of a lawyer who visited the precinct from time to time. The lawyer read the book, sued Harris, and won. That was where I first learned that such a thing could happen, long before I went to law school. I suppose, however, it is asking too much of ordinary HuffPo articles that their authors either have a firm grasp of the law they discuss or at least have enough cultural refinement to remember what we all learned from 1970s sitcoms.

I appreciate your comments (respectful dissent is welcome)!

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