How to avoid libel when writing a fictional account of a real event

Question

I was a researcher for many years and it is a habit that has its usefulness in writing but also some serious drawbacks.

The usefulness is that it helps create believable plots and functional physics in your novel. Nothing irritates me more than reading a science fiction story that seems more magic than science. If you prefer to write fantasy, fine, that genre works for me too, but don't violate the fundamental laws of physics in science fiction.

Now, the drawback of intensive research. Detailed writing in fiction can get the writer sued for libel if they are not careful about how they present their characters. Am I just being a worrywart? You tell me:

Scarlett Johansson won a defamation suit against a French writer for creating a promiscuous character who happened to look like the movie star. A Georgia jury awarded $100,000 to a woman who claimed a character in The Red Hat Club falsely portrayed her as an “alcoholic s**t.” https://helensedwick.com/how-to-use-real-people-in-your-writing/

Well, that doesn't sound too fun especially if one is a struggling writer living on a meager income. The author of the above article gives useful advice but some simply don't work for me. For instance:

If what you write about a person is positive or even neutral, then you don’t have defamation or privacy issues.

So if I want to write a fictional story that has Einstein as a time-traveling psychopathic killer that may be fine, but if I even suggest that he WAS a time-traveling psychopathic killer then I may as well lawyer up.

I don't like these constraints. Who wants to write a story and have it first reviewed by their lawyer before submitting it to an editor. Yet many successful writers do create stories based on real characters:

J.K. Rowling used her chemistry teacher, John Nettleship, as a model for creating Severus Snape. Edward Gein, who kept the skin and bones of his victims, inspired Buffalo Bill in The Silence of the Lambs. Dr. Joseph Bell, a surgeon known by Sir Arthur Conan Doyle, inspired Sherlock Holmes. https://www.sidebarsaturdays.com/2017/08/05/httpwp-mep7vddb-us/

Libel is the publication of a false statement that injures a person’s reputation, however, there is an out, the real person must be living to sue for defamation. You could simply ask permission, but again I see this as not being feasible because what if they say, "No, I don't like how you describe me or my motives."?

My story involves a famous legal case with REAL judgments for tens of thousands of dollars. I don't want to risk being targeted by the whistleblower who did the world a great service. Yet, he was successfully sued and even lost his appeal because he revealed that a research team was purposefully withholding information for decades because then only they would be the experts in this field. I believe that the cornerstone of research should be sharing discoveries with others as accurately and punctually as possible.

My worry is that the whistleblower in my novel has an ulterior, selfish motive for disclosing restricted information. Many of my characters come across as petty and self-serving because academics are plagued by the same foibles and biases that exist in all of us. I hope to entertain the reader with a novel about revenge against the powerful while informing them about a significant historical issue.

I was able, however, to find one useful comment:

Parody, particularly when it comments on political, cultural and social issues, is protected speech. As with fiction and non-fiction, your use of someone’s name, image, etc. should be related to your topic and a matter of public interest.

My advice about parody is don’t go half-way. Make sure it’s so clear your work is parody that you can argue no one would reasonably assume it’s true.

Even though parody is protected speech, if you disparage someone that person might come after you. The case may be weak, but you would still have a legal headache. https://www.thebookdesigner.com/2015/07/tricks-and-traps-of-using-real-people-in-your-writing-part-1-the-right-of-publicity/

So that tells me to play up the fictional elements as I keep true to the historical plot.

Any other suggestions?

Answer 1

You can’t publish that story without lawyers involved

You’re not writing a book loosely “inspired by” this person and this event in their life, as in your examples about Severus Snape or The Silence of the Lambs. You are literally writing about a real person, and basing a book directly on their life story and real actions, and directly confirming these matching identities between fiction and real life in your story.

Neither is your story a parody. Nor can just playing up the fictional parts transform a work of fictional history into a parody.

These aren’t legal evaluations—I’m not a lawyer. These are “plain as nose on face” observations from having layman understanding of what you’re proposing to publish.

This is not a character and a plot you can just lift and use directly. You’re either going to have to buy the rights to their life story or get a lawyer—probably both.

Answer 2

Consider the situation where I write a story about a famous writer named Richard Stanzak.

First I do some research about where the real person with that name lives, about his workplace, where he shops, his neighbours and family, etc.

Then I research the various unsolved crimes that have happened in his region of the country during the past decade.

Finally I have him going about his normal day to day life, but occasionally committing those awful crimes.

Everyone you know wouldn't doubt that I'm talking about you, and since everything else is correct, down to the fine details, many of them might suspect that the fictional part was also correct.

Or suppose instead, I used one of your beloved, but now dead, relatives as the main character.

How would you feel about this? What would you do about it?

Why would anyone else feel any differently about it?