THE REAL PERSON IN YOUR NOVEL You write a fictional story about a child actor who becomes famous

early in life amid the adult and sometimes dangerous temptations of Hollywood. As she grows up, your character is celebrated less as an actor and more for giving in to those Hollywood temptations. In her early twenties, the character quits the party scene and makes a successful comeback to the movie business for a happy ending. After publication, your novel is critically acclaimed, but you and your publisher are faced with a cease and desist letter from Drew arrymore. !he real"life actress alleges that your character is not only based on her, but defames her because some of what you wrote is untrue. #hat is an author or publisher to do and how could this situation have been avoided$ A solution is definitely attainable, but sometimes difficult because fiction develops from truth. Authors often rely on actual facts and events, historical or personal, as inspiration for characters and plot.i %nlike the e&ample above, the facts and events do not have to be public or newsworthy in order to attract libel suits. In fact, the risk of being sued for libel is significantly increased when dealing with private individuals versus public figures. 'eeping with the hypothetical child"actor story, a Hollywood bartender may sue for libel because the barkeep you described as continually serving the underage actor works at a bar similar to the one described in the novel and he has like characteristics to your fictitious bartender. !he implication that the real Hollywood bartender regularly breaks the law by serving to minors could damage his reputation and hurt his career, so he too may bring a libel suit against the author and publisher. Minimize Claims of Libel in Fiction !he financial burden that could result from a libel suit is a compelling reason for an author to use real individuals and events only as the starting point of her creative process and for

a publisher to have the manuscript reviewed to spot and avoid libelous issues. ii If your manuscript is based on actual people or event, then the author and publisher want to work together to ensure that the characters are sufficiently altered so as to be unidentifiable. )ibel in fiction is a difficult thing to prove, but it is often tried and can result in costly litigation. ecause

libel law varies from state to state and because the claims are very fact"specific, it is impossible to deduce a simple list of steps that every author should follow to avoid possible libel suits.iii However, there are certain steps an author and publisher can take to reduce the risk of being sued for libel in fiction. (. Disclaim, disclaim, disclaim. Include a disclaimer that your book is *fiction+ and label it *a novel.+ !his is a simple measure that should notify readers that the book is not based on real people. Although an author or publisher that includes such disclaimers is not insulated from a libel suit, it may support her case when a suit is brought. !he cover of your book should disclose that it is *a novel+ and the copyright page should include a more detailed disclaimer. A typical disclaimer may say, *!his is a work of fiction. ,ames, characters, places, and incidents are either products of the author-s imagination or are used fictitiously. Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental.+ .%rsula Hegi, Stones from the River, copyright page/. !he disclaimers are essential, but do not go far to effectively avoid a libel suit. A ,ew York 0ourt has found that in order to prevail in a libel suit, the statements made about the fictional character must be so closely akin to the real person claiming defamation that a reader of the book who knows the real person would easily link the two.iv !herefore, regardless of these disclaimers, if a person

recogni2es himself as the *fictional+ character portrayed in your *fictional novel,+ he may sue.v 1. 0hange details to distinguish the characters from actual people. Disguise your character from the real person on which he is based by giving him different qualities and characteristics.vi 0hanging the name of a character based on a real person is a simple step towards separating fiction from reality. 0hanging the physical description of the character, such as height, girth, hair and eye color, and giving him a discernible mannerism or personality could further separate fiction from reality. 0onsolidating several real"life people into one fictional character is another way to make him unidentifiable as a real person.vii !his step, like the others, will not guarantee immunity from a libel suit, but should be considered as a reasonable measure to lessen the risk.viii !hat risk is further reduced if the character is treated as a likable character rather than a nefarious evildoer. #hen a character based on an actual person is not being portrayed as a likable character, it is even more important to disguise the connection.i& 3. 4lace the characters in a fictional setting. 0hanges in geographical location, 5ob function, and actual events can help make the characters unidentifiable. If possible, placing the story in a different era may also be effective. !his step should be utili2ed to the fullest without compromising the purpose or integrity of your novel. 6. Attempt clearance. 7aking reasonable efforts to clear the names of your characters before publishing is important because even if you do not intentionally base a character on an actual person, you

could be sub5ect to a libel suit from someone who identifies with that character. 4aying a company to vet your novel can be costly, but there are some things an author or publisher can do on her own to clear the names of characters. 8or e&ample, if the story is set in an actual city, you can check the phonebook to determine if real people with the same names of your characters live there. !he Internet is great source for people"searching as well. If you find that there is a real person living in the same town with the same name as your character, then you have a few decisions to make. 8irst, you could change the name of your character to avoid further problems. However, this option may be undesirable if the name is vital to the story. Another option would be to ask the person9s permission to use his or her name as a fictional character in your book. !his entails e&ecuting a signed release agreement between the author and publisher on the one hand, and the real person on the other. !his may be risky because it could invite e&penses that may never have resulted if you didn9t bring the book to the person9s attention.& !he person could refuse and you would be faced with having to change the name or severely increasing your risk of liability post"publication. It is also possible that the person would never discover the likeness between himself and your character, and it9s equally plausible that he would not have minded. ringing it to his

attention allows him to bargain for the use of his name and could be costly to the author or publisher. If you do decide to e&ecute a release agreement, you should seek proper professional assistance to ensure that the contract contains necessary provisions. 8or e&ample, you want to be released from potential claims of defamation, misappropriation and privacy in all e&ploitations of the publication. !hat means that the person agreeing to the release can make no claims against you if the book is produced in other mediums, i.e. film or

theater.&i You also want the release to apply to the successors of all parties .i.e. author, publisher, and real person/. )astly, you could choose to do nothing about the coincidence and risk later litigation. !his option is ideal if the character and real person have little else in common other than their names.&ii However, errors and omissions insurers will most likely inquire whether you are aware of any potential liability such as this and whether the real people characters are based on have been approached for releases. In any case, : ; < insurance will increase proportionate to the risk of being sued. T e A!t o" # P!blis e" A$"eement 7ost publishing agreements contain indemnification clauses that seek to relive publisher from any liability regarding the content of the author9s work.&iii !he clause usually states that if the author breaches any of her representations or warranties, she indemnifies the publisher against the costs resulting from any claim against it. However, that clause is rarely enforced to e&tent where it allows publisher immunity for libel suit&iv because rarely do authors have the financial assets to back the indemnity. &v !herefore, the publisher should work with the author and perhaps review the book9s contents prior to publication. After the publisher reads the book, a review may include an interview with the author as to the source of the story and how the characters were created.&vi 7ore attention should be placed on sensitive or negative topics. A prepublication review that includes the following steps will alert the author and publisher of any potentially libelous material in the manuscript. 8irst, make a list of every person, organi2ation, or product mentioned or described in the novel. Also make a list of people not mentioned, but who may be identified by implication. 4ay attention to the tone of the book to avoid negative inferences should a 5ury be asked to find evidence of bad faith or ill will on

behalf of the author against the real person the character describes. ,e&t, make a list of all statements corresponding to the list of people described or implied in the manuscript. 8rom this list, determine if any statements by be potentially libelous. If some statements may be libelous, then decide whether you can defend a claim brought against you. 8inally, it is always a good idea to seek legal advice if your work appears to be at risk for libel suits.&vii #hen deciding whether to take any of these steps to disguise the real person on whom your character is based, you should consider if the benefit gained from doing so outweighs the cost. !he goal is to lessen the risk of a libel suit without offending your 8irst Amendment rights and without compromising the virtue of your novel. eing able to do this at the least cost

economically and artistically will optimi2e the worth of your published novel.

CASE AN% COMMENTARY In Bindrim v. Mitchell, >1 0al.App.3d ?(, (== 0al. @ptr. 1>, cert. denied, 666 %.A. >B6 .(>C>/, a psychologist successfully sued an author and publisher of a popular novel for libel. Dr. indrim alleged that the character *Dr. Aimon Herford+ in 7itchell9s story, Touching, was actually based on him, but was portrayed in a way that defamed his reputation. indrim offered group therapy sessions called *,ude 7arathon+ as a means

of helping people to shed their psychological inhibition with the removal of their clothes. #hen 7itchell wanted to attend a nude therapy session, she verbally assured indrim that she would not write about the sessions. 7itchell also signed a contract that prohibited her from disclosing any information regarding what transpired during the session. ,otwithstanding this agreement, 7itchell9s novel depicted nude therapy sessions

conducted in Aouthern 0alifornia by psychiatrist Dr. Aimon Herford. #itnesses testified that when reading Touching, they could identify Herford as the real"life doctor. indrim

convinced the 5ury that despite the author9s attempt to disguise the fictional doctor from the actual one, Dr. Herford was based on indrim. !he author9s attempts to mask her character included a name change, slight alteration in his physical characteristics, and changing the occupation and educational background D Dr. Herford was a psychiatrist with an 7.D. while indrim was a psychologist with a 4h.D. !hese alterations did not outweigh the similarity between what transpired in the book9s nude sessions and indrim9s actual nude sessions. ecause he and others recogni2ed him as Dr. Herford, indrim argued that 7itchell9s inaccurate portrayal of him and of the ,ude 7arathon resulted in libel. 8or e&ample, indrim asserted that he was libeled by the fictitious doctor9s use of obscenity during the sessions which indrim did not in fact use. 4rior to printing, 7itchell assured her publishers, Doubleday, that the character in her book was not identifiable as indrim, but the author9s indemnity was not sufficient to insulate Doubleday from liability. !he author and publisher were found to be 5oint tort" feasors. indrim received compensatory damages of E=F,FFF as 5oint and several against

both defendants and punitive damages of E1=,FFF against the publisher.

7artin Garbus and @ussell Amith, New York Courts Deal Blow to Claims of i!el in "iction, ,:# Y<@' )A# H<%@,A) , .7ay C, (>>(/ .citing Middle!rooks v. Curtis #u!lishing Co., 6(3 8.1d (6(, (63 .6th 0ir. (>?>/ and #eo$le on Com$laint of Maggio v. Charles Scri!ner%s Sons, 1F= 7isc. B(B, B1(, (3F ,.Y.A.1d =(6 . rooklyn 7ag. 0t. (>=6//. ii Alan H. 'aufman, & 'riter%s Counsel( Defining i!el in "iction, 4ublishers 7arketing Association ,ewsletter, .<ctober, 1FF(/, availa!le at httpIJJwww.pma"online.orgJscriptsJshownews.cfm$idK==>. iii ))Y<D H. HAAAI, ; A!:L:, 0. A0H:0H!:@, !H: 0<4Y@IGH! 4:@7IAAI<, A,D )I :) HA,D <<' M (F .(>>B/. iv Aee S$ringer v. The )iking #ress, >F A.D.1d 3(=, 6=C ,.Y.A.1d 16? .(st Dept. (>B1/ .finding that superficial similarities such as a common first name are insufficient to identify the fictional character with the real person/. v ':,,:!H 4. ,<@#I0' ; H:@@Y AI7<, 0HAA:,, !H: @IGH!A <8 A%!H<@A, A@!IA!A, A,D <!H:@ 0@:A!IL: 4:<4): (C6 .(>>1/. vi ))Y<D H. HAAAI, ; A!:L:, 0. A0H:0H!:@, !H: 0<4Y@IGH! 4:@7IAAI<, A,D )I :) HA,D <<' M (F.C .(>>B/. vii @obert 'olker, Negotiating Ti$s for #roducers Making Television Docudramas* +andling Releases , ? :,!:@!AI,7:,! )A# ; 8I,A,0:, Aeptember (>>6. viii ':,,:!H 4. ,<@#I0' ; H:@@Y AI7<, 0HAA:,, !H: @IGH!A <8 A%!H<@A, A@!IA!A, A,D <!H:@ 0@:A!IL: 4:<4): (C? .(>>1/. i& Alan H. 'aufman, & 'riter%s Counsel( Defining i!el in "iction, 4ublishers 7arketing Association ,ewsletter, .<ctober, 1FF(/, availa!le at httpIJJwww.pma"online.orgJscriptsJshownews.cfm$idK==>. & @obert 'olker, Negotiating Ti$s for #roducers Making Television Docudramas* +andling Releases , ? :,!:@!AI,7:,! )A# ; 8I,A,0:, Aeptember (>>6. &i @obert 'olker, Negotiating Ti$s for #roducers Making Television Docudramas* +andling Releases , ? :,!:@!AI,7:,! )A# ; 8I,A,0:, Aeptember (>>6. &ii Aee S$ringer v. The )iking #ress, >F A.D.1d 3(=, 6=C ,.Y.A.1d 16? .(st Dept. (>B1/ .finding that superficial similarities such as a common first name are insufficient to identify the fictional character with the real person/. &iii Alan H. 'aufman, & 'riter%s Counsel( Defining i!el in "iction, 4ublishers 7arketing Association ,ewsletter, .<ctober, 1FF(/, availa!le at httpIJJwww.pma"online.orgJscriptsJshownews.cfm$idK==>. &iv 4atricia #eiss, Negotiating a #u!lishing ,True Crime% Manuscri$t, ,:# Y<@' )A# H<%@,A) = .April 11, (>>6/. &v Alan H. 'aufman, & 'riter%s Counsel( Defining i!el in "iction, 4ublishers 7arketing Association ,ewsletter, .<ctober, 1FF(/, availa!le at httpIJJwww.pma"online.orgJscriptsJshownews.cfm$idK==>. &vi 4atricia #eiss, Negotiating a #u!lishing ,True Crime% Manuscri$t, ,:# Y<@' )A# H<%@,A) = .April 11, (>>6/. &vii ))Y<D H. HAAAI, ; A!:L:, 0. A0H:0H!:@, !H: 0<4Y@IGH! 4:@7IAAI<, A,D )I :) HA,D <<' M (F.B .(>>B/.