Reality and Fiction: Part 3 - Writing Real People in Fiction

George & Abe hunting vampires?

After touching broadly on the legal principles, it's time to get down to practicalities:

Can you use real people in your fiction?

As I alluded to in my earlier post, the answer is a qualified yes.

Example 1:  You have your character have a chance run in with Martha Stewart in a posh Washington, D.C. restaurant.  They exchange greetings and discuss mutual acquaintances, then go on their way.

No problem here.  Passing reference to Martha doesn't raise any issue about privacy, publicity or defamation.

Example 2:  Your character is in a posh Washington, DC restaurant when he sees Martha Stewart, in a drunken stupor, berate and throw a drink in the face of her waiter, stand on her table and pull up her skirt to reveal she is going commando and has a tattoo of Matt Lauer on her ass, then say something that reveals she is, in fact, the Georgetown Slasher, a vicious serial killer who leaves victims in the finest hotels in Washington surrounded by handmade candles and tasteful flower arrangements.

Now we have a problem.  It's not a right of privacy or publicity issue, but straight out defamation.  Even though it is labeled fiction, it still exposes Ms. Stewart to a possible lowering of her reputation.  And it would be hard to claim that the statement was not made with knowledge of falsity when in fact you are writing FICTION, which by definition is false.

Example 3:  Your earlier books have been made into successful movies - one by Clint Eastwood, and the other staring Matthew McConaughey - so you write them in to your later novels.

No problem here.  That's exactly what was done by best-selling author Michael Connelly.  His novel Blood Work was made into a move directed by and staring Clint Eastwood.  So when Connelly wrote the sequel A Darkness More Than Night, he included references to Eastwood and to the fact that a movie had been made about protagonist Terry McCaleb's heart transplant.

Matthew McConaughey played the role of Connelly's character Mickey Haller in the movie version of The Lincoln Lawyer.  In Connelly's sequels The Brass Verdict, The Reversal and The Fifth Witness, there are passing reference to his characters having encounters with McConaughey

Example 4:  Your character has various dealings with early industrial giants Henry Ford, Louis Chevrolet, and Thomas Edison.

This is the context of D.E. Johnson's series of books (Detroit Electric Scheme, Motor City Shakedown, Detroit Shuffle) set in Detroit in the early years of the auto industry.  No problem here.  They are dead.  No defamation.  No invasion of privacy.  And because their deaths long preceded any rights of publicity laws, there is no concern there either.  But since rights of publicity statutes exclude books, that issue doesn't exist in any event.

Heck, you could even write a book about, say, Abraham Lincoln killing vampires.  But then again, who would ever want to read something as far-fetched as that.


photo credit: <a href="http://www.flickr.com/photos/ableman/245089912/">Scott Ableman</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

Reality and Fiction: Part 2 - Adding real people to fiction - the legal background

Best-selling author John Gilstrap, whose latest Jonathan Grave thriller High Treason is heading up the best-seller lists, made a comment to my last post.  He raised the issue of intermixing real people in fiction.

So can you have your main character have a chance encounter with Martha Stewart?  Or Matthew McConaughey?  Or Elvis?

The short answer is yes -- but with qualifications.

Let's start with a little legal background.

The legal issues involving real-life people revolve around the right of privacy, the right of publicity, and libel.  The rights of privacy, although recognized in some forms since the early 1900s, are still not uniformly recognized among the 50 states.  Some aspects, such as commercial use of images without consent, are adopted by virtually all states.  Public disclosure of truthful private facts, is another issue.  Members of an evenly divided Indiana Supreme Court opined that the state constitutional provision providing that truth is an absolute defense in defamation actions, precludes any liability for truthful statements -- even the disclosure by a nurse to a plaintiff's co-worker that the plaintiff had AIDS.

The right of publicity is a new concept.  It was not recognized at common law, under which all personal rights to privacy, publicity and defamation died with the person. The legal adage is that you cannot defame a dead person.

But prompted by the death of Elvis Presley, the Tennessee legislature enacted a statute giving the right of publicity for a deceased person to his estate.  In the following years, some, but not all, states have passed statutes regarding the right of publicity.

Generalizing, those statutes give the heirs all rights to use of the image, likeness and voice of the deceased person. So when you see a commercial using the image of Elvis Presley or the voice of Bing Crosby, someone is paying the estate (or more likely, a corporation set up by the estate).

But those statutes have an exception for books.  There would be significant First Amendment issues if the legislature tried to prohibit writing about people without their consent.  Hence the exclusion.

Finally, there is the issue of defamation.  In short, defamation is an untruthful statement about a person that lowers that person's reputation in their profession or in the community.  There are various standards that apply to defamation depending on whether the person is a public official, public figure, limited person public figure, or private person.  But in general,  the old common law still stands -- you can't defame a dead person.

In the next post, I'll discuss the practical application of these laws to using real life people in fiction.

Reality and Fiction in Writing -- Part 1: Changing Names

Back from a bit of a hiatus --

At the Midwest Writers Workshop, I was part of the Buttonhole the Experts session.  The question that came up more than any other -- both in the short "buttonhole" sessions and in hallway discussions -- was about the interplay of real life and writing.

The question came up primarily in three setting, all of which have arisen in my law practice.  First, and seemingly more common, is the "fictionalizing" of real events, usually by slight changing of names or places.  Second, is the use of real life people in works of fiction.  Third is the issue of writing about people without their consent.

The next installments of Law for Writers will address these issues.

So how about fictionalizing real events?

This seems to most commonly arise in the following scenario:  Joan Smith is writing what effectively is a memoir.  But because of family concerns, or because of fear that revelations will subject her to a lawsuit,  she changes the names of the characters, and maybe even the location.

So by changing the names, has Joan protected herself from libel?

The quick answer is "NO."

Just changing a name of a real life person to a made-up name does not protect the author from exposure to liability for defamation or even invasion of privacy.  The general rule is that if a person can be identified, simply changing a name or using the label "fiction" will not provide the author with an impenetrable wall against liability.

Now does that mean that one cannot use real life events as inspiration for fiction, or even as the basis for a work of fiction?  Of course not.  Much, if not most, fiction, is inspired by or drawn from real life.  Often that is what gives fiction its believability.  One of the classic American novels, Robert Penn Warren's All the King's Men, clearly was inspired by Louisiana Governor Huey Long.  But it remained a work of pure fiction.  It's characters were fictional, not just some account of real life persons and real life events with a simple name change.

There maybe reasons for "fictionalizing" a memoir or a true account by changing names.  Maybe it gives the author a way of dealing with disgruntled family members.  If so, that is the choice of the author.

But do not count on protecting yourself from liability by the simple expedient of a name change.  It's a thin veil and the law has no difficulty seeing through it.

photo credit: <a href="http://www.flickr.com/photos/jpaxonreyes/5034760960/">J. Paxon Reyes</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc/2.0/">cc</a>

Robert Ebert and Life Itself: Worth Reading

Within two weeks of reading Roger Ebert's autobiography Life Itself, I lost a law school
classmate, a friend and business associate of nearly 20 years, and a cousin, all of whom died suddenly and without warning.  It made Ebert's book and his reflections about life all the more poignant. 

Live Itself is a stunning accomplishment - not just for the very act of writing a book with all the maladies that Roger Ebert was suffering at the time - but for the book, the life it recounts, and the soul it reflects.

From the delicious humor of a chapter dedicated to the perfection of Steak and Shake, to recounting of long walks through London and Venice, to the remarkable people with whom his life was filled (including Gene Siskel, Studs Terkel, Russ Meyer and Robert Mitchum), this book is to be treasured. The story of Mitchum, his agent & Ebert trying to find a closed workhouse outside Pittsburgh where Mitchum was shooting a movie that he signed up for by mistake is laugh-out-loud funny.  So too is the story of a bathtub resurrection scene envisioned by Ebert and filmed by Meyer for a vampire skinflick, only for the scene to end up on the cutting room floor while the off-chance filming of nearby truckers recruited to carry the bathtub to a precarious hilltop perch made it to the screen.

And above all, Ebert tells of the love of his life, his wife Chaz.

But in the end, it is Roger Ebert who is the most amazing person in these pages. With the end clearly in sight (Ebert died in April of this year), he reflects on an illness that took away his ability to eat, to drink, to converse, or to take those treasured long walks.  He misses food, but misses the social aspect of dining with friends more.  He misses his walks, but can reconstruct them step by step from his memory.  Remarkably, he still finds contentment and happiness.

Ebert concludes the book by contemplating his own mortality and the greater questions of Man's place among the universe.  He does so with a calmness of vision, a clarity of thought, and without fear.

Ebert takes an honest look at himself, his travels, his family and friends and -- at life itself. And in doing so, he makes all of us the richer for it.

If you are looking for a book to read as summer moves so quickly into autumn, consider Life Itself.  It is well worth reading.

First Amendment at Risk: Blogger / Lawyer Faces Discipline for Criticism of Judge

This is a bit off-topic, but it does deal with an important issue of free speech, which is
the life-blood of all writers.

Indianapolis lawyer / blogger / all-around gadfly Paul Ogden has been hauled before the Indiana Disciplinary Commission, an agency of the Indiana Supreme Court that is responsible for prosecuting disciplinary complaints against lawyers.

His "misconduct" which threatens his law license and his livelihood?  Sending a private email stating that a judge, who had already been removed from handling an estate.  Somehow the judge got wind of the negative comment and filed a disciplinary complaint.

Adding grist to the issue, just before the disciplinary proceedings were filed against Ogden, he had published a post highly critical of the disciplinary commission, pointing out that of the 400 complaints filed against lawyers during the final three years of the previous executive director, 397 were filed against solo and small firm lawyers.  Only three complaints were filed against lawyers in larger firms.

Ogden has expressed his view that this made him a target because of his critical postings.  He buttressed this in a post-hearing article (CLICK HERE) in which he pointed out that during the 11 1/2 hour hearing, the Disciplinary Commission utilized 5-6 lawyers, and presented boxes of files from the estate case.

Ogden's post contrasts this to the handling of numerous complaints against noted construction injury lawyer William Conour, who this month pleaded guilty in federal court to stealing  $4.5 million from more than 25 clients over several years.  Numerous disciplinary complaints had been filed against Conour for mishandling client money, but the Diciplinary Commission never charged him with misconduct until after he was indicted by a federal grand jury.

So the question remains:  how much right to free speech does one give up by becoming a lawyer, particularly a lawyer who posts comments critical of the state supreme court?

We'll see. The decision of the Indiana Supreme Court likely is months off.

photo credit: <a href="http://www.flickr.com/photos/kkoukopoulos/5267773229/">kouk</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by/2.0/">cc</a>

Defamation and the NFL Cheerleader: Gossip Website found liable for $338,000

Sarah Jones - former Bengal Cheerleader

Writers and bloggers need to be keeping an eye on the case of a former Cincinnati Bengals cheerleader who won a $338,000 judgment against thedirty.com, a website most recently known for exposing (pardon the expression) the latest Anthony Weiner photos. 

The case revolves around Section V of the Telecommunications Act of 1996, commonly known as the Communications Decency Act, and specifically Section 260.  Provisions of that Act provide immunity to website operators for content posted by third parties and not edited by the website.

Traditional common law rules of defamation held that a person who republishes a libelous statement is equally culpable with the person who made the original statement.  With the growth of the Internet and spread of electronic communications such as message boards,  internet providers such as Yahoo, Comcast, AOL and AT&T ran to Congress to obtain an exemption.  They did not want to be held responsible for content that people posted on the internet.

Congress agreed, and in 1996 enacted Section 260 of the Federal Communications Decency Act.  The provision granted immunity to internet content providers for content posted by others, so long as the provider did not select or edit the content.  In other words, as long as the provider was simply providing the mechanism of the communication, and had no part in the content, it was immune from defamation liability.

Enter our fair cheerleader and thedirty.com.  In 2009, thedirty.com published two posts from anonymous contributors asserting that  Sarah Jones, a school teacher and cheerleader for the NFL's Cincinnati Bengals, had sex with every player on the Bengals, and in a separate post, that she had two sexually transmitted diseases.  Under common law established long before the internet - or electricity for that matter - statements attributing unchaste behavior to a woman (but not a man) or a "loathsome disease" (old speak for sexually transmitted disease) to anyone, are considered defamatory per se - that is, by the statement itself without any proof of damages.

The Arizona judge denied a motion to dismiss the case based on Section 260, finding that thedirty.com, through its operator Nik Richie, had selected the posts for publication and had then added comments to the post, thereby taking it outside the protection of federal law.

The case was previously tried in January, 2013, resulting in a hung jury.  This recent jury deliberated more than 10 hours before finding Nik Richie had acted with malice, and awarding damages of $338,000.  

An additional issue was presented by Ms. Jones well-publicized conviction for her sexual relationship with an underage former student.  In criminal proceedings in Ohio, Ms. Jones avoided jail but was banned from ever teaching again.  In a trial strategy move, Ms. Jones sought damage only until February 1, 2011, apparently the date she was charged for her conduct with the former student.  Her attorney argued (apparently successfully) that the jury should ignore Ms. Jones conduct after that date.

Lawyers for thedirty.com are promising an appeal on the judge's refusal to dismiss the case on the basis of statutory immunity under the Communications Decency Act.

NOTE:  Ms. Jones, now 28, and her former student, now 18, have announced plans to marry.  Truly, "There are more things in heaven and earth, Horatio, Than are deamt of in your philosophy."



photo credit: <a href="http://www.flickr.com/photos/caliorg/6147674214/">cali.org</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Lawyer Disbarred for Writing Tell-All Book

A Carmel, Indiana lawyer thought he had a great story to write.  So lawyer (now former lawyer) Joseph Stork Smith wrote a book about Dee Dee Benkie, a former aide to President George W. Bush.  The  2010 book, Rove-ing Her Way to the White House: Machiavelli’s Sexy Twin Sister, was not a best seller, but is was sold on Amazon.com.

The problem is that Ms. Benkie, now a Fox commentator and Republican strategist, was Mr. Smith's client.  Apparently for a time she also was involved in a personal relationship with Mr. Smith.  But that relationship ended -- apparently very badly from Mr. Smith's perspective.  So he wrote the book detailing what he perceived as Ms Benkie's dirty laundry.  Cue Don Henley and Dirty Laundry.

Smith's book details Ms. Benkie's asserted criminal background and claims that she should never have been given clearance to work at the White House.  The book description on the Better World Books website states: "Rove-ing Her Way to the White House, demonstrates that it was clearly possible to lie, cheat, steal, and manipulate others to gain full security clearance in the White House."  The description promises revelations of  "sex, criminality, not following the Golden Rule, and, most importantly, jeopardizing the security of the United States of America."

That same description claims that the author had a "unique perspective" which gave him knowledge to write the book.

Damn right he did.  He was her lawyer !

Confidentiality is at the core of the attorney-client relationship.  It is taken seriously by lawyers, the legal profession and certainly by the Indiana Supreme Court, which is in charge of enforcing those rules and disciplining lawyers in the Hoosier state.

Those same Rules of Professional Responsibility also prohibit lawyers from having a sexual relationships with their clients.  There is an exception where the relationship pre-existed the representation, so you can represent your spouse. But if a relationship develops during the representation, the lawyer must withdraw (no pun intended - well, maybe a little pun intended) from the representation before he/she "does the deed" with what should now be a former client.

Apparently Mr. Smith didn't pay any attention to that rule, either. 

In disbarring Mr. Smith, the Supreme Court did not mince any words or hide its disgust. It was a tour-de-force of clear to-the-point writing.   The Court opinion stated:

"In the book, Respondent revealed personal and sensitive information about [the former client] that was obtained in confidence as her attorney, and its revelation had the potential of causing her public embarrassment and other injury, such as impairment of her employment opportunities.  .  .  . Respondent's selfish motivation in deliberately attempting to reveal this confidential information to a wide audience for monetary gain, his false statements in the book and in this disciplinary matter, and his lack of any remorse lead us to conclude that that disbarment is appropriate for Respondent's misconduct."

Cue Queen - Another One Bites the Dust.

 Note to Indiana Supreme Court:  My legal thriller, Stars Fall, is entirely fiction.  

photo credit: <a href="http://www.flickr.com/photos/caliorg/6147674214/">cali.org</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>