You know those movies that are not documentaries, but they’ll claim “based on a true story” or even “this is a true story”. Or, maybe more ambiguous but borderline true “this is my story” or “this is how it happened to me”. How can these stories be told* while reducing risk of being sued in a credible suit (as opposed to a frivolous or nuisance suit). Granted, you can change character names. You might shade or exaggerate some points, conveniently omitting other facts. Yet, is there some hedge against law suits to tell a true story? Or, do true stories (or, stories with claims of truth) require all real characters to sign a release? Might any SD avid reader and/or movie fanatic know of any exceptions that might come to mind? Thanks all in advance for your thoughts. (BTW, yes I am aware anyone can sue you for anything at any time, but there must be ways to mitigate the risks.)
*told, as-in book form, movie form, or otherwise publicly disclosed
If you are writing a* true *story, then it makes little difference. A person is allowed to write factual information that is in the “public interest.”
However, a scriptwriter might make an error or introduce a deliberate change to the story. If the story makes a false or unprovable claim and makes a person look bad, they might have the grounds to sue. A person might also debate what is in the “public interest.” (eg. That time your little sister wet the bed may be factually true, but if you are publishing it just to humiliate her then she might have grounds to sue). For this reason, it makes sense that a writer or producer might seek permission from a person before they try to “spice it up” for TV.
MAD Magazine once said to change the names around, but not so much as to obscure the person’s true identity. They won’t sue, because that would be tantamount to admitting they had done all the dirty, disgusting things described in the book!
First, in the U.S., anybody has the right to write about real life. Newspapers do so, magazines do so, books do so, blogs do so, podcasts do so, video games do so. Any media anytime anywhere can use real world incidents. That might mean that not everyone is portrayed as a wonderful human being. Tough. It is virtually impossible to defame a person when retelling things that actually happened. You must act egregiously, i.e. deliberately falsify facts or slant them in a way that contradicts reality so badly that the person has a demonstrable loss of future income from the portrayal. Writers have huge leeway to report on reality. How many defamation suits are there in real life? Even the National Enquirer seldom gets sued and even more rarely loses. It’s basically not an issue.
Second, “based on a true story” means that somebody somewhere did something at some time and that one-line synopsis has been expanded into movie length. It’s a guarantee that almost everything in the movie did not actually happen in real life.
Third, movies normally buy the rights to somebody else’s work to “base” the screenplay on. That gives them an extra layer of protection.
What is more likely to happen is that some people hold rights to content that the movie wants to use. The Hendrix family holds the rights to Jimi’s records and won’t let anyone make a movie out of those songs. The recent movie Jimi: All Is By My Side had to avoid anything written by Hendrix and so kept its timeline to his early career. Its portrayal of him had fictional negative elements. Nobody sued. Some future movie may get signed releases from the family in order to get these rights and make a full biopic. Overall, getting releases from individuals are rare. You’d need very particular circumstances to require it.
There simply are no credible reasons to file suits about real life in 99.9% of cases. The First Amendment actually works.
I seriously doubt authors asked their subjects to sign releases before publishing. Look at all the “unauthorized” biographies out there. You can write whatever you want about someone as long as you can show your sources if needed.
Remember, libel is a false portrayal of fact, and if the person is a public figure, he needs to prove you knew beforehand the information was a lie.
“Based on a true story” is meaningless, but when you fictionalize events, you are, as the verb implies, writing fiction. Fiction is not fact, and thus you have a very strong defense against the lawsuit.
Ultimately, it boils down to how far the aggrieved party wants to take it, and what he can convince a judge and jury.
Truth is an absolute defence in libel cases. If it really is a true story, and you have evidence, then any suit will fail.
Also, in English and American law, you can’t libel the dead. Tell any lies you like about a deceased person, their family has no right to sue over it.
*"The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors.
In the case of the Hendrix biopic mentioned above, the Hendrix family had no legal right to sue for claims of Hendrix violence, but Kathy Etchingham *might *have had grounds.
…slightly (but not all together off topic) a couple of Kiwi’s recently made a documentary about competitive tickling(no, I’m not making it up) has so far survived two lawsuits, and at the Tickled Q & A last night at LA they were threatened with more when the subject of the movie turned up to confront the makers of the movie.
IANAL, but if you’re writing about living, identifiable people who are not public figures without their permission then they may have grounds for some sort of invasion of privacy lawsuit. Even if nothing you say about them is false or even negative then they may object to being thrust into the public eye.
Public figures are legally considered to have a more limited expectation of privacy, and if you know a true story about a famous person’s private life then it’s likely because someone else already made it known to the public.
I have considered this as a defense, but I sit on the fence debating how strong an argument this is. I would presume the burden of proof would be on the accuser since they brought suit. And, I wonder, in reality, how can they prove a thing? It would be their word vs. the author’s; yet, who could prove anything, really?
Can you clarify that last statement? I added the bold text for clarity, assuming that is what you meant. Did you mean to say "…and, if you know a true story about a famous person’s private life, then they are less likely to sue because someone else already made it known to the public. And, if that is what you meant to say, what if one were the first to disclose? Then, I WAG one better have their resources in line, huh?
The current legal standard is whether a reasonable person would assume that the character is the plaintiff, despite any minor changes to hide the identity. That can’t be known ahead of time; only a court verdict decides it.
Copyright is not libel or defamation but the principles are the same. That’s why very few cases go to court. They’re too unpredictable.
I assume that what Lamia meant was that you, Jinx, are not doing any original research into digging up scandals. You would be copying presumed facts that are in the public record. Yes, if you somehow knew damning details about a public figure and published them as fact you could be the first in line for a potential suit - but, again, if your facts were true you have a solid defense against a charge of libel. You could still make up damning details. Just look at any political discourse in the last few decades. Probably 90% of what is said are lies, damned lies, and bad statistics. Nobody gets sued for them, even when published in supposedly authentic nonfiction by reputable publishers.
What could you possibly say about anyone that would be worse than what is regularly said about Obama?
IANAL, but I understand that in order to be libellous, a claim must be plausible. If nobody believes them, they don’t damage someone’s reputation, and therefore aren’t defamatory. That’s how South Park gets away with making ridiculous claims about lots of different celebs.
Whether a famous person is likely to sue really depends on the person, but I wouldn’t think they’d have a strong invasion of privacy case against you if you stuck to information that was already publicly available.
My main point though was that while truth is a defense against libel, you could potentially be guilty of invading someone’s privacy even if everything you say about them is true.
You can’t be sued for printing facts, no matter what the source. If you use a direct quote and present it as your own writing, you are liable for copyright infringement. Of course, citing your source gives it more weight (cf, this very board).
You can be sued over anything. They probably won’t win.
But is being sued such a bad thing? Can the suit be used as advertising.
If you are sued, there are news stories, so the subject is more in the public eye. Some may read the story only because there is controversy. If you win, you say ‘The true story they don’t want you hear!’
Nah. Lawsuits cost tens to hundreds of thousands of dollars and takes up countless hours of your time. You wouldn’t get 1% of that back in publicity sales.
I’ve always wondered about those disclaimers like: “Any resemblance to actual people, places or situations is coincidental.” That’s probably to ward off lawsuits, I’ve always thought. But they often make reference to or even portray actual historical figures such as, say, Abraham Lincoln or FDR. So if it can be shown some of the characters are not fictional after all, does that leave the door open to claims about other figures?
Again, nah. They came into existence because of nuisance suits from people who happened to have the same name as a fictional character. Disclaimers have no standing if a real person is really slandered. If your character is John Smith, your next-door neighbor John Smith can’t successfully sue but the real life Jack Jones who is the person libeled in the book has a case.
If a real historical figure or some current celebrity is involved, the lawyers will modify the disclaimer accordingly. But you can’t libel the dead and anything said about them would be irrelevant to what you say about real living people in the first place.
