by Marcia Moston @MarciaMoston
A disclaimer: Growing up, I wanted to be an archeologist, astronomer and missionary doctor. The latter ambition lasted through two years of pre-med until a meltdown in a chemistry exam ended it. Among other pursuits, I’ve couriered architectural blueprints from one city office to another, hung telephone directories on doorknobs, filled vending machines, written a book, and taught. But never once did I consider being lawyer. So don’t construe the following as legal advice. It is simply intended to raise points of consideration, because whether we write fiction or nonfiction, facts or fabrications, we write about people. And some may not like what we have to say.
Defamation: When writing about the relatives or other real people can get you in trouble
In short, defamation involves making injurious, false statements about another (living) person who can be recognized. More than being rude or insulting, a defamatory claim has to be harmful to the person’s reputation or business.
Disclaimers: Many writers—both fiction and nonfiction—think tacking a legal sounding disclaimer onto the copyright page guarantees protection. Although a clearly worded disclaimer will help, it is a second line of defense. The first, if you are writing nonfiction, is to tell the truth. But what if the truth isn’t favorable? Let’s face it—the best people to write about are usually the odd ones—the quirky, quaint and questionable.
The most common way to deal with this is to change names and identifying details as Jeannette Walls does in her memoir The Glass Castle: “The names and identifying details of some of the characters have been changed.” Fiction writers use a similar form: “Any resemblance to persons living and dead is coincidental.”
But for people writing stories of abuse or addictions, for instance, changing names and details may not be enough, nor may it be desirable. The disclaimer in Richard Hoffman’s memoir, Half the House, contains a startling admission: “This is not a work of fiction. It contains no composite characters, no invented scenes. I have in most instances, altered the names of persons outside my family. In one instance, on principle, I have not.”
That “one instance” of not changing a name led to the arrest and imprisonment Hoffman’s former coach who had abused him years ago and who, unbeknownst to Hoffman, was still coaching and abusing. Hoffman hadn’t intended to be vindictive but saw no reason to protect the man. In this case, since Hoffman’s trauma was a necessary and true part of his story, revealing the real name of theperpetrator was legally acceptable. However, situations like this need careful and prayerful consideration.
Sometimes writers get release forms or let the people named preview the relevant portions of their work. Although it’s your story, ultimately, you are responsible for what you say about others and need to decide whether it is worth it.
Even with a disclaimer, how much can you change before your nonfiction work becomes a piece of fiction? The disclaimer in Jennie Lawson’s memoir—Let’s Pretend This Never Happened—A Mostly True Memoir, gives me the shudders: “This book is totally true, except for the parts that aren’t.” Yipes! Which parts are those?
As a reader, I can accept story-crafted passages, but I want to know which is fact and which is fiction. In Unless It Moves the Human Heart: The Craft and Art of Writing, Roger Rosenblatt tells which parts are fabricated. His disclaimer: “Before you read this book, I must confess a fraud. What I present as a word-for-word account of the conversations that went on in my writing classes at Stony Brook University in the winter/ spring of 2008 is fiction, top to bottom. I would like to have recalled verbatim all the marvelous things that I and my dozen students said over the course of the semester, but my mind, hardly a steel trap, recalls only the problems and subjects we discussed. To be clear: nobody really said what I say he said in class. But the ideas expressed here were expressed there.”
Novelistswho use real-life historical figures are also concerned with disclaimers. Historical fiction writer, Ariel Lawhon bases her book, I Was Anastasia, on the real-life mystery of a woman who claimed to be the surviving daughter of Tsar Nicholas Romanov. Like many historical writers, Lawhon includes this disclaimer: “Where many real-life historical figures and public figures appear, many of the situations, incidents, and dialogues . . . are not intended to depict actual events . . . .”
The problem for me is that many historical situations do reference real events and I have to spend the next day looking up the actual record in order to identify them. That’s certainly one way to learn history for those of us who missed it the first time.
Disclaimers don’t have to be stuffy. They can give the writer yet one more opportunity to show their voice as Tobias Wolff does in his memoir This Boy’s Life: “ I have been corrected on some points, mostly of chronology. Also my mother thinks that a dog I describe as ugly was actually quite handsome. I’ve allowed some of these points to stand, because this is a book of memory, and memory has its own story to tell. But I have done my best to make it tell a truthful story.”
Wolff’s mother, whose two sons both published memoirs, later said, "If I'd known both my sons were going to be writers, I might have behaved differently." Ha! The dangers of being related to a writer.
One last option for writing about others is this advice from Phillip Lopate:
1. Befriend only people who are too poor to hire lawyers to sue you.
2. If you plan to write about friendship, make lots of friends, because you are bound to lose a few.
3. For the same reason, try to come from a large family.
TWEETABLES
Thank you for clear explanations Ms. Marcia. I wonder though; are disclaimers needed in nonfiction when your writing offers praise of individuals from whom we've learned life lessons from? Would welcome your thoughts. God's blessings ma'am.
ReplyDeleteJim, Thank you for the input. My thought is that if you are praising someone, then there is no concern of defamation, but if for any reason you wonder if the person would mind, you could tell them you wanted to mention them. I actually had a case when a woman wanted to name my husband and me for supporting her through a questionable situation and I asked her not to name us. However, I wouldn't think it necessary usually, although sometimes publishers request release forms.
DeleteWriting about real people is always a tricky proposition. Thanks for this post, Marcia. It brings clarity.
ReplyDeleteIndeed Ingmar--people are tricky business--whether we are living with them, writing about them or talking about them! But the public part can be a minefield. Thanks for stopping by.
ReplyDeleteI used several marquee characters in my novel A Poppy in Remembrance. The trickiest were Oswald and Biddy Chambers. I spent a lot of time researching them at Wheaton College and when it was important, used only direct quotes. That meant I had to get permission from Discovery House Publishers (who manage that).
ReplyDeleteAn Oswald Chambers expert also read through the work. If I had been told I misrepresented them, I would have made alterations. AS it was, no problem.
OTOH, I also included Lawrence of Arabia, Mary Lee, Winston Churchill and General John Pershing as characters. For them, I took simplified quotations of things they publicly wrote or, in Mary Lee's case, just quoted her straight from a newspaper article.
For my memoir, I gave people names which described them: Merciful, Lyrical, Insightful, Teddy Bear. I steered around most of my relatives except for my parents. But I was very careful to not depict them without honor. If I publish, I will run it past family fist but I don't anticipate a problem.
But then, does anyone? :-)