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Yet every fiction writer bases characters on real people. Memoirists and nonfiction writers identify people by name. How can writers use real people in their work without risking a lawsuit? First, a simple rule. For instance, you may thank someone by name in your acknowledgements without their permission.
If you are writing a non-fiction book, you may mention real people and real events. However, if what you write about identifiable, living people could be seriously damaging to their reputation, then you need to consider the risks of defamation and privacy and how to minimize those risks.
I am not talking about portraying your mother-in-law as a bossy queen bee; I am talking about portraying your mother-in-law as a drug dealer. Common sense and a cool head are key. The laws of other countries are more favorable to the targets.
Defamation To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff target must prove all of the following: False Statement of Fact.
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. Parody is not defamatory if the absurdity is so clear no reasonable person would consider the statements to be true. Of an Identifiable Person: A defamatory statement must contain sufficient information to lead a reasonable person other than the target to identify the target.
Typically, the target must be a living person, but companies and organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. Oprah won the case.
One person other than the target must read or hear the statement. The statement must be more than offensive, insulting, or inflammatory.
If the target is a public official or a public figure, then the plaintiff must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some fault or negligence by the defendant.
Invasion of Privacy Claims Even if you publish the truth, you may still be sued for invasion of privacy if you disclose private information that is embarrassing or unpleasant about an identifiable, living person and that is offensive to ordinary sensibilities and not of overriding public interest.
The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries a camera in their pocket.
Similarly, public figures can have little expectation of privacy. A movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointing her way.
Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of suits. Even if the information is highly offensive, courts often decide there is no legal liability if the information is of public interest.
Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest. Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims.
As you can imagine, judges and juries are not sympathetic when the perpetrator makes a privacy claim. In any situation, however, writers should try to get releases from people who will be recognizable in their work. Yes, this is permissible, even in memoirs. Photo by Ruth Suehle through OpenSource.
Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture, a true fact. If the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.
Whether the person is a private individual or public figure, you would be liable for damages, including punitive damages. If the person is dead, you could still get sued in some states and foreign countries. Right of Publicity claims are limited to:Whether you run a business out of your home or a big skyscraper, using written agreements is critical to protect yourself and to keep growing.
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