Monday, July 13, 2015
If You Write It, They Will Sue
Most courts tend to provide authors with some leeway when depicting characters derived from real life. Although this freedom is sometimes framed as a first amendment defense, it more likely results from the complaining person's failure to prove his or her case. For example, if an unhappy childhood friend sued you (known as the plaintiff in legal jargon) your friend would have two substantial hurdles. First, the plaintiff must prove that the character actually depicts the plaintiff (an analysis that needs to include the dissimilarities as well as the similarities). Second the court must be convinced that you made a damaging false statement or portrayed the plaintiff in a false light. Some courts have ruled against novelists (blame it on this 25 year old case), but if you haven't completed your novel, there are simple ways to avoid the sound of the judge's gavel.
BTW Dept. (1) The right of publicity -- another claim sometimes made in these situations -- is a hard argument to win against a novelist. (2) You cannot defame or invade the privacy of someone who has passed on.