It's not really even so much a matter of proof -- someone made sexual drawings on a chalkboard. In and of itself, that's not libelous (assuming this person was a student.) What, exactly, are you afraid of? I don't see what "case" they would have, given this scenario. Even if this were a memoir, the POV is that of the author, reacting to an event. Although "proof" would be easier, having the particular time and place, I still don't see how this is libelous. (And there would be ways to 'disguise' the perpetrator, even in memoir.)
While your friend did this, this type of behaviour is actually not uncommon in many schools. (I've worked as a supply (substitute) teacher, so I've worked in a lot of schools and heard a lot of stories). If you're writing fiction and have character A drawing obscene images on the board while character B keeps a lookout, then I'd say (IMHO (= "In My Humble Opinion")) you're on safe ground. It happens all the time. However, if character A is utterly deplorable, and because of the way you write this the person who did this in your high school in real life may think you identify him with character A (rather than just using the particular incident) then you need to tread very carefully.
The other thing to keep in mind, is that if the incident is recognizable, it is recognizable only to people who already know of it. Also, if character A is utterly deplorable, real A would have to "out" himself as that character. Very frequently, authors have based characters on real life people, and thought the likeness was obvious. But the real life character made no connection to himself. Remember, also, that you're not even really writing about A, but rather, your own perception of A.
While what you say has merit, if there is going to be a major problem with the novel, it might be better to know ahead of time, rather than putting the vast amount of time and effort into writing the novel and finding an agent/publisher, only to discover there is a legal issue with the content. Maybe it's not a case of putting the cart before the horse, but deciding if it's proper to hitch a horse to that particular cart, or select another cart (or writing project).
if the person, or anyone who knows him can recognize him from what you wrote and he wants to sue you for defamation of character, or invasion of privacy or whatever else may apply, he can... and you'd have to spend lots of money you may not have to defend yourself... that said, when in doubt, never rely only on advice/info given by well-meaning strangers online [and that includes me], consult a literary attorney! not necessarily true... only an attorney specializing in such torts can say for sure... if you are one, liz, i'd like to know why you say 'no'... especially since, if the person being written about can tell it's him, then it's logical to assume others can, as well...
Mamma and Ervin are 100% correct when they tell you that only a literary attorney knows for sure. So, as Ervin said, the advice you get here is probably only helpful in gaining a layperson's knowledge of libel. Your question seems to be one of write vs. don't write. If you have not written much and have never published, then I would encourage you to write whatever you wish because the odds are heavily against getting a first-time project published. OTOH, if you intend to self-publish, that's a whole different question. Major childhood events tend to stay with us for the rest of our lives, sometimes in vivid detail. It's almost impossible to keep them from influencing your writing, and in many cases it can be cathartic to write about them. The downside is that there are some things that do not make for quality writing because the experience was so profound that the writer cannot separate himself/herself from them enough to provide perspective. For example, when I was fifteen, I stopped my father - twice - from committing suicide. I've never even tried to write about that because I know I couldn't be sufficiently detached.
The question asked whether, if ONLY the person who inspired the event knew it was him, so by definition, that is not logical to assume others can, as well. It is possible that an event could have been private -- only experienced by two people, with no one else having knowledge of the event. Therefore, no one else would know. It is also inaccurate to say that ANY lawyer can say anything "for sure." Most legal cases, particularly cases involving such 'mushy' concepts as 'harm to reputation' can never be predicted with 100% accuracy. Any attorney who says he or she can guarantee any particular result or says that almost anything is definitive is not an attorney I would trust. (Yeah, yeah - insert attorney joke here. There are plenty who actually are decent folks.) The key element in the OP has to do with writing about a particular childhood experience. Libel, specifically, wasn't even mentioned. The thing about libel, is it has to be *defamatory.* It has to harm the reputation. It has to portray someone who is readily identifiable in a bad light -- or make them look bad, AND it has to be false. From what the OP has said to us, it simply does not appear that anything could rise to the level of a libel. I did add the caveat that there may be more to the story that we don't know, and that it is impossible to answer the question with respect to an unknown set of facts. There is also a possibility of a case related to some sort of breach of privacy or a disclosure of private facts, but again, the facts as outlined here are not so unusual so as to be readily identifiable to a single specific person. (Particularly in a fictional story, where the intent is not to disclose "facts" to a general public and cause harm to the individual. Although of course there is the issue that the fiction was so poorly disguised that it really was merely a vehicle for doing so, but again, based on what's been told to us here, I don't sense that that is the case. And of course, as always this would be highly fact-specific.) There are also the practicalities of litigation. Just as it is a pain in the tuchus to be sued, it is also a pain in the tuchus to sue. This is not to say that baseless litigation doesn't exist. It certainly does. I would never say someone could not be sued for something. Any person can sue any other person at any time over just about anything. That doesn't mean that they will be successful. It does, however, take a certain type of mindset and personality to become one of these vexatious litigants, and I can't guarantee that anyone on this site won't encounter such a person, regardless of what they write.
liz... while some of what you say may be true, as it seems you are not an attorney specializing in such matters, then, as i said, it's still not a good idea for anyone to take advice/info given by non-attorney writing site members as gospel, in re legal issues... and the wisest thing to do in re these things is to consult an attorney who specializes in the field... i did say 'can' which doesn't mean 'definitely' as 'will' would have, but only 'maybe'... and certainly such an attorney should be more capable of giving more knowledgeable advice than the 'guesses' any of us lay persons can provide, don't you think?... ed... i can't imagine what you went through as a teen, but your courage in taking the action you did is laudable... if you ever want to write about it, i've found that traumatic events in our past can be dealt with by writing about them as if they happened to a fictional character... this usually provides an effective catharsis and can often result in a 'story' that will help readers who've gone throgh similar painful events... just a thought... love and hugs to you both, maia
Well, Maia -- all I can really say in response to this is that we all have varying tolerance for risk. If you want zero chance that anyone can sue you for something you've written, then don't write anything at all. If I want zero chance of being in a car accident, I'll stay in my house all day, rather than make the trip to the grocery store. We take into account levels of risk in almost everything we do every day. I've worked off and on in litigation for almost twenty years now. While I've never practiced specifically in the area of literary or media law, I've got a pretty good familiarity with torts and contracts in general, as well as plenty of experience with the practicalities of litigation. I took torts and intellectual property classes twenty years ago in law school. I had to study them for the bar exam years ago. I occasionally get some additional updates and familiarity with this area of the law in some sort of CLE class that might touch on these issues (I attended one such class in October, although the discussions related more to laws affecting libraries and journals and publishing contracts in particular, rather than tort-related issues such as author liability for defamation.) I'm only admitted to practice law in one state. Different states and different countries can have widely varying laws on particular issues. Some jurisdictions have some very specific peculiarities so I could never state with certainty that any particular outcome is impossible. Any legal advice is nothing more than an individual attorney's assessment of the odds. Even when it might seem that the law is crystal clear on an issue, the fact is that the legal system is run by people, each of whom have their own biases, motivations, and thought processes. Sometimes, even when a judge knows that a particular ruling is legally incorrect, he or she will make it anyway, knowing that the practicalities of appealing the ruling would make it not worth the trouble, or that real ramifications to the judge are unlikely. This doesn't happen a lot, and in fact, my experience has been that in the vast majority of cases, the 'correct' outcome occurs and the system works. But there are exceptions. When there is a real concern that there may be legal ramifications when a writer is on the verge of publishing a piece, I would agree 100% that any such concern should be reviewed by an attorney who specializes in literary and media law, rather than just on some random website. But overwhelming fears of litigation can lead to a significant chilling effect on a writer, leading to a paralysis and stalemate in writing when in the end, there isn't any real basis for this fear to prevent the writing. The writing itself isn't going to create any potential harm. The only harm could come once the writing is published. Reaching the precipice of publication is a significant ways away from when a writer (especially a novice writer) first opens up his laptop and makes the first strikes at the keyboard. Along the way, any number of things could happen -- the story could take a significant turn, obviating the original concern entirely. Or so many other things could happen in the story and the character could change so significantly that the original concern becomes moot. However, even if the story does end up as originally conceived, there are still roadblocks to get through. If a piece is going to be traditionally published, agents, editors and publishers who are familiar with these issues will discuss them with the author. If a piece is going to be self-published, then perhaps at that point, a consultation with an attorney would be appropriate. But one has to realize that the legal system is set up to protect rights and redress harms. It is not intended to be an impediment (but rather to enhance and encourage) artistic and commercial endeavors. Speech (which includes writing) is viewed with particular importance, hence the First Amendment protections that are so entrenched and deeply respected in our society. That said, there are real harms that can come from free speech, such as defamation/libel/slander to innocent persons, or the public disclosure of what are supposed to be private facts. So we have developed laws to protect that. But it's a pretty high standard required to overcome the affinity for free speech. Simply using a name or re-telling an event that happened, particularly one that isn't especially scandalous or all that unusual, really, is very unlikely to rise to such a level that would overcome this hurdle. Legal questions are always tough, primarily because they are so highly fact-dependent, but also because they rely so heavily on individuals, whose actions and behaviors aren't always easy to predict. So, with respect to the original question in this thread, is it *possible* that the OP could be sued for writing about such an incident? Yes. The answer will always be yes. Do I think it is likely? No. How does the possibility of a lawsuit weigh against the writer's desire to write this story? Only he can answer that. What's the worst that can happen if the OP writes the story and later determines he doesn't want to publish it? The story sits on his computer. What has he gained? Skills and practice writing. Fodder for future stories. A chance to have thought about these sorts of issues and experiences. Since, at this point, the OP hasn't even started the story, I stand by my advice to first go ahead and write it. He can take my advice for whatever it's worth -- as can any reader of this thread.
CatnipCupid: When i use childhood memories for my writing i just use them to heck with the consequences.
Maia - Thanks. Actually, I'm not sure how courageous it really was. Many things we do that seem "great" to others are simply the result of reacting to situations, often when we see no choice. So it was with me. I've thought about writing about it via a fictional character. Maybe someday I will. I really hadn't thought much about those years until recently, when I saw the film "Flight". Denzel Washington did such a good job of portraying an alcoholic that I found myself revisiting what I have always regarded as the worst time in my life. When my son, who is a huge DW fan, asked me if I'd be willing to see it with him (he'd missed it the night my wife and I went), I had to tell him I couldn't sit through it again.
Chicago :"What, exactly, are you afraid of?" I don’t know. I have a tendency to worry. I blame my Virgo Ascendant and Cancer Moon. Seriously, I’m the type of person who likes to have all my reasonable ducks in a row before acting. But, I don’t mind taking risks with something I care about. I think what I’m most afraid of is going through the gestation period, finding a credible agent, being accepted by a publishing house, seeing my dream come true, and having it taken away and my reputation ruined because of my own carelessness. *You articulated my reasons, TW *Heavenly hash, Ed. I’m sorry you had to go through that experience with your dad. I can see why you are hesitant to write about it. I second what Mamma suggested in re turning it into something positive to help people? Maybe. Hopefully you didn’t have to suffer the way Dean Koontz did. Holy bananas! Chicaco: “But overwhelming fears of litigation can lead to a significant chilling effect on a writer, leading to a paralysis and stalemate in writing when in the end, there isn't any real basis for this fear to prevent the writing. The writing itself isn't going to create any potential harm.” I’m doing my best not to let this happen. “However, even if the story does end up as originally conceived, there are still roadblocks to get through. If a piece is going to be traditionally published, agents, editors and publishers who are familiar with these issues will discuss them with the author. If a piece is going to be self-published, then perhaps at that point, a consultation with an attorney would be appropriate.” Thank you. I was wondering about bringing up my concern to the publisher if it was accepted. “What's the worst that can happen if the OP writes the story and later determines he doesn't want to publish it? The story sits on his computer. What has he gained? Skills and practice writing. Fodder for future stories. A chance to have thought about these sorts of issues and experiences. Since, at this point, the OP hasn't even started the story, I stand by my advice to first go ahead and write it. He can take my advice for whatever it's worth -- as can any reader of this thread.” I actually wrote this story for a creative writing class ten years ago. But, I thought it was a humorous event and think readers would also. I will definitely need to change a few things, though. ~Well, heavens! Thanks to everyone who participated in my thread. I’ve learned so much already. I did the right thing by asking even though I was apprehensive my query may not be taken seriously.
