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Suppose an author is writing a novel that is heavily based on autobiographical material and is based in the USA and Canada. What steps would need to be taken for the author to avoid being sued for libel? I would like to avoid being sued for libel, getting my work demonetized, a restraining order, or even getting a letter from a lawyer.

Will this disclaimer be enough?

This is a work of fiction. Names, characters, places, and incidents either are products of the author's imagination or are used fictitiously. Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental.

Would changing the setting, the physical characteristics of the characters, and creating composite characters be sufficient to avoid a suit? (And of course, not identifying it as autobiographical.)

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    How close to real life is this? Is it a retelling of a true event or a fictional event inspired by a real one. To give an idea of the difference, the Japanese film "Lucky Dragon No. 5" is based on the real events surround the fishing boat Dai-go Fukuryū Maru, which was caught in the fallout of the U.S. Castle Bravo Nuclear Test, which resulted in nearly double the expected explosive yield and contaminated the ship. Godzilla (1954) was inspired by the same event but it would be folly to say it was based on the true events as Castle Bravo reported no giant lizards as a result.
    – hszmv
    Oct 25, 2021 at 13:32

4 Answers 4

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You might do better to ask this over on law.se, but here is more or less the answer that I would give there.

The "standard disclaimer"

This is a work of fiction. Names, characters, places, and incidents either are products of the author's imagination or are used fictitiously. Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental.

has very little legal effect. If a plaintiff can demonstrate that the characters of a novel are intended to depict real people, or that some readers are likely to take the characters as representing real people, and that negative aspects of a character in a novel have been taken as reflecting on the plaintiff, and have harmed his or her reputation, then success in a libel action is quite possible, and the disclaimer will be of no help. After all it is a self-serving statement by the author. "I am not a thief" is not a defense to an accusation of theft.

And if the plaintiff cannot demonstrate all that, the absence of the disclaimer will not help the plaintiff's case.

At most the disclaimer establishes a lack of intent to describe real people. But intent is not a key element of a libel action. If a statement is false, and harms a person's reputation, it is potentially defamatory, even if made in the belief that it was accurate, or with no desire to harm.

The disclaimer does not hurt, and it helps establish good intent, but that is the most it can do.

To avoid risks of defamation suits, one might be careful that all statements about a character based on a real person are provably true. Or one might carefully make all characters based on a mix of multiple real people, plus fictional additions, so that no character is clearly identifiable with any real person.

Defamation actions are generally expensive. They are also risky, in that the original statements may be repeated many times in the course of reporting on the case, more clearly associated with a real person than the original novel ever was. (Consider the QB7 case in which Leon Uris was sued.) The chance of even a clearly defamed person bringing suit is not large, but it is not zero either. The risk will also depend on the jurisdiction likely to be involved. The US is notoriously less friendly to defamation plaintiffs than most European countries, for example.

The question says:

I would like to avoid being sued for libel, getting my work demonetized, a restraining order, or even getting a letter from a lawyer.

There is no way to be sure of any of that. Anyone may hire a lawyer to send a letter at any time, whether there is a valid claim or not. Indeed anyone may sue, even if there is no valid claim. Libel accusations do not normally result in restraining orders, or even injunctions (which are not the same thing).

An author in such a case might be wise to consult a lawyer experienced in defamation cases in the relevant jurisdiction. If the book is to be published by a major traditional publisher, the publisher would almost surely have a lawyer on staff or on retainer to asses such issues. Otherwise the author would have to make any arrangements. Initial consultations are often at low or even no cost, to asses if the lawyer is really needed and wants the case.

As a side note, I remember being amused by the standard disclaimer on one occasion. The novel Island in the Sea of Time includes the standard disclaimer. And on the first page there is a description of a character who is obviously based on a real person, another author well-known to Stirling, the author of Island. It happens that character is one of the heroes of the series, and there is no defamation. Indeed I understand that they are friends, and Stirling appeared as a bodyguard in a novel by the other author. But the "standard disclaimer" was obviously false in this case, and would have been of little value had the person depicted found something objectionable in the portrayal.

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This might be in "consult a lawyer" territory, I can't see your disclaimer being sufficient because in this scenario it doesn't sound as though it's true. A great deal will depend upon how recognizable the characters are as the people whom they are based on and how based on real events the story is.

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I agree with David Siegel's answer.

But I also like this perspective from Jericho Writers:

"Writers anxious about libel/privacy law can in most cases relax:

  • It’s exceptionally rare for a novelist to be sued for libel. As long as you are not obviously writing a roman a clef, your single strongest defense to any claim will just be to point to the way the book is categorized: “This is fiction, dummy.”
  • Let’s say you are writing and self-publishing a memoir, that isn’t vastly defamatory of anyone and isn’t very privacy-invasive either. You do those real-life people the courtesy of changing names and other details, so it’s not obvious who you are talking about. Let’s say you commission a print run of 500 copies and sell a few e-books as well. Is it theoretically possible that you face a lawsuit for the issues talked about in this post? Yes. Is it practically likely? No. It will be, for most authors, a vanishingly small possibility
  • And if you are writing anything else non-fiction, very much the same applies, at least 99 point something percent of the time.

Yes, the conventional advice is “take legal advice”, but that advice will cost a minimum of $5,000 / £3,000 if you’re going to a properly experienced lawyer. So for most writers, the actual practical advice will be:

  1. Proceed thoughtfully and with caution
  2. Change names and other details. Make your characters actually different from the real-world subjects.
  3. Think about privacy as well as libel
  4. Be realistic. If you are making serious comments about public [or wealthy] people and your work is likely to have significant readership/impact, then you can’t wing it. In all other cases, then just take good care and you should be fine."

A final bit of advice from Margo Leitman in "Long Story Short":

Storytelling isn't about bashing someone else: it's about being brave enough to share your story and make others feel better about their own lives.

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David Siegel gives a good legal answer. Here is the writer's answer:

Come clean about why you want to write a story about real people and events. Answer honestly for yourself the question of why you didn't invent a similar story and instead chose to write about the real persons.

If you want to profit from the people or events being well-known (e.g. writing about President Trump will guarantee sales), you can't complain if the real people want to either share in your profit or forbid you to make one. If you want to use someone else to make a profit, you already know what you should rightfully do: ask the person if you may write about them and offer them a share of the profit. That way you would both avoid legal trouble as well as have a clean conscience.

If you merely find the story interesting, then why not ficionalize it to the point where it can no longer be attributed to a specific person? Is it laziness? Lack of imagination? Again, you know what to do: Make the effort and turn the real events into your own story. It will very likely be a better story, as this gives you the freedom to change whatever you need to make it fit your target audience or your artistic vision better.

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