This month I wanted to talk a little bit about incorporating real people, or a character who is a pastiche of multiple real people, into your work. This is a question often faced by writers of memoir and historical fiction in particular, but many other writers will wonder at some point in some project or another about the extent to which they can write about real people without being potentially liable for defamation.
As always, I should remind readers that nothing written here is intended as formal legal advice and folks who need help with particular issues should consult an agent or attorney (or drop me a line and I’ll see if I can point you in the right direction).
The good news for American authors at least is that the defamation laws in this country are balanced against powerful First Amendment rights so it’s more difficult for someone you write about to support a defamation claim than might be the case in some other countries. However, that doesn’t mean the law can’t apply to your writing.
A brief note on terminology: defamation includes “libel” and “slander”. Libel is written defamation and slander is spoken. Writers are typically, of course, more concerned with libel, but for the purposes of this discussion I’m going to stick with the generic term “defamation”.
You’ve probably heard that truth is a defense to defamation and that’s basically accurate. Additionally, statements of opinion (rather than fact) are typically not actionable as defamation. In other words, if you write something about another person that is either objectively true or is clearly your opinion, rather than a statement of fact, it’s not likely to amount to defamation.
It’s also worth noting that defamation only applies to a statement made about a specific identifiable person. So if you change enough facts about a person when you create your character, you should have a good chance of arguing that your statement isn’t actually about the real person. It’s often a question of degree.
Also be aware that public figures (politicians, celebrities, sports stars, etc.) will have a harder time proving defamation against you than private individuals in most cases. Because of our powerful First Amendment protections, these public people generally have to prove that you acted with what the law calls “actual malice”. This basically means that you knew that your comments were false or you were reckless about whether they were false.
If you’re writing about real people and are concerned about defamation, you might try chatting to a writing buddy about ways in which you can conceal the true identity of the person you’re writing about. If you need to identify the person because, say, you’re writing historical nonfiction or memoir, you may want to consult an expert to ensure you’re steering clear of defamatory comments. You should also be aware that the United States does have some privacy laws that relate to issues like presenting someone in a false light, publicly disclosing private facts about them, or intruding into their private life. I’ll talk about these in a future blog post, but they’re not very often successfully raised as a basis for a legal complaint, again largely due to the balance between privacy interests and the constitutional guarantee of free speech. So you typically don’t have to worry too much about them in practice.