both ed and shadowwalker have expanded on my advice much as i would have done... all they have said is valid and based on established fact, not the kind of wishful thinking some others here are presenting that runs counter to being realistic in a very litigious world, because: 1.lawsuits in re such issues are not only for 'libel' but also for invasion of privacy and a host of other niggling affronts that can be actionable... 2.it won't matter who wins, because it will still cost the writer a lot of money to defend against the suit and the book can be stopped cold by an injunction against publication/distribution/sales in the meantime...
Libel and slander involve FALSE information about people, so providing that what you write is the truth and you can prove that it is the truth, you'll be ok as far as defamation is concerned. As far as the laws of privacy are concerned, most relate to data protection, video surveillance, workplace surveillance etc. The TRUTH is an absolute defence to defamation (check out www.enotes.com/firstamendment-law-reference) and it is down to the plaintiff to prove that what was written or said was in fact false. For PRIVACY check out www.gilc.org/privacy/survey/intro/html There's a fair bit of inacurrate information floating around here. A quick check on the above sites will tell you what you need to know without resorting to the expense of a lawyer.
Change the bloody names, exaggerate their facial features, mix truth with fiction so defintively that any solicitor/lawyer would be too afraid of taking up the case for fear of professional suicide. Just turn it into a 'grotesque', make it funny, make it hideous. Imagine sitting down to Christmas dinner and watching your relatives watching you, as they wonder if you were levelling devastating insults at them. Just let loose and to hell with consequences.
First, most attorneys don't charge for a first consult. Second, private persons have much better privacy protection than public figures - and that has nothing to do with data protection or surveillance. Last, none of this addresses the point that if you're writing about real people, you can be sued and whether or not you can defend yourself, you still have to pay for that defense. Much better, to my mind, to seek out expert advice first, rather than rely on the internet or forums. But if one is determined to go headlong into the storm, nobody can stop them.
The truth is only a defense if you can prove it. If you are sued for defamation, the burden of proof is on you! Even if Joey the Bull does have mob connections, saying so could put you in jeopardy other than trying to swim in the East River chained to a cinder block. He doesn't have to prove he's an upstanding citizen - you have to prove the letter of your accusation. Moreover, if you're dishing the dirt about a neighbor who's banging half the housewives in the 'burbs, you can have photographic evidence and still be up the creek. Unless the neighbor is a politician or a celebrity, you could be sued for an invasion of privacy. So don't cheap out of consulting a lawyer. It could turn out to be very expensive indeed!
ditto cog and shadow... it's incredibly irresponsible to counsel people to not consult an attorney when not doing so could result in having to spend money they can't afford on proving their case... which they may well not be able to do, thus costing them much more money...
It is also irresponsible to counsel people without first of all knowing what you are talking about. It is, despite your suggestion, not wishful thinking to state what is fact. And the facts are that defamation whether slanderous or libelous, is to publish something about someone which is not true. The truth is an absolute defence to libel.
No one has said it isn't. What we are saying is that it will still cost you to prove it's the truth. An attorney can advise the writer what to include and what not to so as to discourage/eliminate the lawsuit in the first place. There's an old saying about being penny wise and pound foolish...
What can a lawyer really tell her at the planning stage? Until he knows what is in the book, what is he going to be able to judge may be libellous? The advice is out there - 1) write the truth. 2) the onus is on the plaintiff to prove 4 claims in court: that the statement is defamatory; that the statement was published or communicated to at least one other person; that the person could be identified; that the statement caused injury to the plaintiff. The time to consult a lawyer, if at all, is when the ms is completed so that, if necessary a judgement as to content may be made.
Just get a reasonably-priced consultation with a literary attorney and ask them to brief you on the ins-and-outs of anything that could prove problematic. That''ll blow 99.9% of problems clean off the chalkboard.
Okey, maybe not when it's ready to be published, but at least half-way through the process, when you have developed the concept, you know what you want to tell, you gathered information and you can show something to the lawyer. What are you going to ask him before you even start doing anything?
I guess it's easy for me to give advice on writing memoir, since I am practically the last member of my family. I have written quite a few memoirs and a number of them have sold and are published. If I had written about my family when they were still with me, I would simply have asked them what they thought about being mentioned in my stories. In my family there would have been no objections because there had never been any hard feelings between us. That may be hard to believe but it's true. Maybe it's because my father wrote fiction, my mother wrote poetry, my sister wrote children's illustrated stories, my brother tried his hand at mysteries, and I, even in high school, was making weak attempts in typing class. I suppose that getting advice from a lawyer would be the safe way to go, but I would also have a face to face with the family. If you are thinking of some sort of expose' and showing the family, warts and all, you might just want to forget it. Why be a smart ass when you could hurt someone? Stick with fiction.
I thought about writing a non-fiction story about one of my colorful relative's interesting experience in the woods of Pennsylvania one night. But I promised Uncle Ray that I'd never tell anyone about the time when he wrapped his body in tin foil from head to toe and hid in a pile of leaves to stop the CIA from tracking him........Oh, wait. Never mind.
I've been in the midst of something similar during my gathering/outlining phase (close to a years worth now) and had libel concerns when I first joined this forum last summer. Basically it came down to me stressing over a book that didn't even exist yet and will have a probability of never even seeing publication, despite my highest hopes. I'm just now in the beginning phase of actual writing and am trying to take care to present the motives of my villains, I mean family members, in a clearly guarded fashion of opinion, despite the outcome of events "proving" my opinions as fact. Is it a full proof plan? Not at all...but I'm not going to consult with a literary attorney until I have a more cohesive piece of work to present. I'm also betting that rather than to risk bringing to light the true nature of their characters in court - especially when it'd basically be a they said/I said over conversations and events having nothing to do with illegalities, in no way reflecting their employment, and solely involving personal family situations that do not affect their way of life - it would never be brought further than a phone call to tell me off. That said, I'm not throwing caution to the wind either and will protect myself with necessary avenues when the time calls for it. This is the risk you must knowingly choose to take if writing a nonfiction memoir. If you do take the fictionaluzed route, making the persons virtually unrecognizable in both appearace and speech should suffice. The better the masquerade, the more difficult for them to prove the character is them. I'll echo what others have said about telling the story for you and not your grandmother. If it's an account that you feel must be told, a message you are passionate about sharing, then please put it to paper. If it's not so important to you, that will show in your work, regardless of the genre. Best of luck and I hope my ressurecting this thread is ok. I can relate to your initial struggle and I hope my relation offers help.
that's a redundancy... if it's a 'memoir' it can only be 'non-fiction'... if it's 'fiction' it wouldn't be a 'memoir'... ...the problem is that you can still be sued... and, while having only told the truth may result in you winning a lawsuit for defamation of character and invasion of privacy, etc., you'd still have to undergo the trouble and expense of a trial, if sued... ...which is why no one should rely on what's claimed/advised by well-meaning folks on writing sites, who are not literary attorneys...
Obviously that's correct, it was just poor wording. She'd mentioned possibly fictionalizing and I would hope she is capable of understanding my overemphasis of a fully autobiographical account vs. semi-autobiographical. Apologies for my semantic error.
Actually, the book Bastard out of Carolina by Dorothy Allison did just the same thing - it's a fictionalized account of her life. Or, more, of her childhood. So, it has been done. But, of course, she changed names, and, I'm fairly certain, didn't publish until after certain family members were dead.
Several years ago I wrote down my grandparents love story starting with how they met and their married life when the kids where born all of those things and they loved it.
It really depends on your family's skeletons. What if you're half through, you're frantically researching, interviewing and really "into" your family's story... then you find out about Uncle Fester the child molester or that your grandfather was a train robber back in the day but was never caught - Are you prepared to "out" these guys or are you hoping you grew up on Walton's Mountain? 'night Mary-Ellen.
live2write: I have a thought, you were talking to your grandmother when you came up with this idea. Why not write about your grandmother.
