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In one of my novels, I took two "contemporary" real life people, and sent them back to the 18th century to fight the American Revolution. (Yours truly is one of them.)

My current understanding of the "libel in fiction," as in the Red Hat Club case was that the true "backstory" of the main character was so accurate, believable, and convincing, as to lead people to believe that the supposedly fictitious (and "defamatory") parts (about the main character's alcoholism and promiscuity), were also true. In other words, there was no "disconnect" between fact and fiction.

Does sending your characters back in time create such a "disconnect" (assuming that your characters are reasonably well disguised)? Put another way, is "18th century" a strong enough signal of fiction so that people would not reasonably believe other things you say about your character, whether or not they are true.

If you're a lawyer that can answer on legal grounds, great. If not, you can still answer as a prospective juror and "finder of fact."

  • I'm not sure if this is an opinion-based question that'd be better off on a writing discussion forum than here, or a brilliant writing question for this site. Either way, I'm looking forward to the answers! – Neil Fein Feb 2 '15 at 16:42
  • @NeilFein: Thanks for your reply. This is one of my more "pointed" questions. I asked it in the hope that we could make a "canonical" point of law, right here on the site. – Tom Au Feb 2 '15 at 16:50
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    How much is truth, and how much isn't? is there a way for the reader to tell? I mean, when you put Einstein into 18th century, not 20th, but keep him being the best scientist and have him developing the relativity, how should the reader distinguish whether him cheating on his wife was reality or not? – Alexander Feb 2 '15 at 19:46
  • @Alexander: You (and others) have made the excellent point that "18th century" isn't necessarily a good disguise. What seems to work in my novel is "American Revolution." Basically, no one born in the second half of the 20th century could have done the things they did in the Revolution. Indirectly, you've answered my question. – Tom Au Feb 2 '15 at 20:07
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    @SteveJessop: The Red Hat case was decided by a group of jurors. More to the point, I linked it in the question. So the point was, if you were a juror, would you say that something is "a strong signal of fiction," or veering into "factual" territory. Apparently, most people believe that "18th century" is not enough BY ITSELF to fictionalize something. That's interesting. – Tom Au Feb 2 '15 at 23:31
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Note: Not a legal expert

If you based a character in a historical novel on a real person from the present, it would take a fair amount of concerted effort for anyone to even notice, and even if that character had distinctive traits or speech patterns linked to the real person, one could make a good case that it was usage for satire. No reasonable person would read an account of a historical figure as representing accurate information about a living person.

The only exception I could see is if the entire book was a thinly disguised account of a group of contemporary people, where the actions described were generally true to their present-day counterparts --which would be a tough thing to make historically plausible.

  • I consider Lauren's answer correct "in theory," and yours to be more true "as a practical matter." – Tom Au Feb 2 '15 at 20:09
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In general, your characters will be assumed to be fictional, unless you give overwhelming reason for them to be considered otherwise.

Which means that you're asking the wrong question. There's no one twist which will make a borrowed character untouchable in his "disguise"; there are only ways that you, the author, can expose that the character is borrowed.

A trivial example: You can create a character in a 3rd-century proto-Viking setting and introduce him as the anthropomorphic personification of infertility. But if his name is "Charlie Chaplin," he has a small mustache and a bowler hat, and you describe him eating leather footwear in the snow, well, people are going to recognize the resemblance.

What you need to avoid is unique, identifying features. Moving Barney Stinson to the 18th century doesn't render him unrecognizable if he still bellows "Legendary!" and high-fiving French revolutionaries. Likewise, your friend's life history might be rendered unrecognizable by transplanting it to a different time and place, but then again, if it's specific enough, it might not. When you're portraying a very specific, real-life person, it might be clear what parts of your portrayal are entirely fictional and don't reflect in any way on the actual person. But then again, if your writing has convinced people that you're trying for a one-to-one correlation, it might not be.

Your question seems to be operating on the assumptions that:

  • You'll be copying a real-life person so faithfully that the parallels will be fairly clear, and
  • That person might object to your use of his personality and/or history in your book, or to your portrayal of him.

There is absolutely no reason to reach this kind of scenario in the first place. If you are in the position where you are looking for a way to disguise that a character is based directly on somebody real, then you are already doing something wrong.

All you need to do is this:

  • In general, when creating characters, never base a character entirely on a real person. It can't be "This is Brad, but in the Wild West." Brad might be your starting point, but you need to develop the character in its own right - and you'll want to develop the character as something other than "absolutely identical to Brad."
  • Avoid unique, personal identifying details. Avoid them like the plague. Heard a marvellous, OMG-I-Can't-Believe-How-Evocative-That-Is personal story? Don't use it. It can influence you, but it isn't yours to copy wholesale. And if you're copying material wholesale from people's lives, they could be justified in their accusations that your writing can reflect on them directly.
  • If you do really want to use something entirely real, and no substitute will do, then ask permission. Explain what you're planning to do; give context. "Sarah, the story you told me about the last time you saw your dad is really sticking with me. It would be really perfect in a story I'm writing. The characters would be totally different from you guys, but that one scene would be almost exactly the same. How would you feel about that?" Or "Emma, I've got these terrific ideas which are all basically you as a starship captain. I'm totally imagining it as what you'd do if you were there. Are you OK with that?" Listen to them; address their concerns. Perhaps they'll want to go over your work before publication; consider whether or not you're OK with late edits or vetoes. And if you do agree to something concrete, ask for it in writing - "yeah, I know, it's just a formality, but professionally I have to have this."

Hope this helps.

  • This is a good answer. But it might be even better for the earlier question that I asked (and you edited), "where is the dividing line..." I'm not sure whether we should 1) migrate it there 2) leave it here or 3) post it in duplicate on both questions. – Tom Au Feb 2 '15 at 21:18
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    Related: "How to avoid hearing 'that's me!' from your friends when you write about them" writers.stackexchange.com/questions/1602/… – Lauren Ipsum Feb 2 '15 at 21:54
  • Tom, I've linked to the question in the comments, so the questions will show as related. I phrased this specifically towards your question here, and I think I'd rather leave it as-is. :) Glad you liked the answer, though. I think the answers to your previous question are great too, but I'll think whether I have anything worth adding there as well. – Standback Feb 3 '15 at 7:12
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Only as much as bringing a past character forward can disguise him or her.

If you have a brilliant, borderline sociopathic crime-solver who uses recreational pharmaceuticals to stave off boredom and has a physician friend/living-space-mate who helps with cases, setting the story in 25th century Starfleet, 21st century New York, or Camelot isn't going to let you off the hook from readers recognizing Holmes and Watson.

Just changing setting/time isn't sufficient. You have to change enough of the details that the character is no longer the real person.

  • Very interesting answer. So how do you differentiate a "detective and sidekick" from Holmes and Watson on one hand, vs. Batman and Robin, and the Lone Ranger and Tonto? They're all of one "type." – Tom Au Feb 2 '15 at 19:23
  • I'm not sure I agree this answer is on point. There's a difference between writing derivative characters and libeling a real person. Any number of armchair critics could convict someone of the former for "crimes" that wouldn't hold up in court for the latter. – Chris Sunami Feb 2 '15 at 19:58
  • @TomAu "Crime-solver and sidekick" is a type. That's not what I delineated. Holmes and Watson have very specific characteristics (brilliance, personality, drug use, medical degree) which the other pairs don't have. House, MD had House and Wilson, who were recognizably (and deliberately) Holmes and Watson derivatives. But Reese and Finch on Person of Interest are not. So my point is that if you use a real person to create a character, you need to change enough details that the person is no longer recognizable. I happened to use fictional characters in my example. – Lauren Ipsum Feb 2 '15 at 21:48
  • @ChrisSunami My point would have been just as valid if I had used "charismatic political leader who spent decades in high office while hiding the effects of a crippling disease" who is ported to Starfleet or Camelot. You're still going to recognize FDR. – Lauren Ipsum Feb 2 '15 at 21:52
  • You'd recognize a character inspired by FDR, sure. That doesn't mean FDR would have grounds for a libel suit. – Chris Sunami Feb 3 '15 at 2:52

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