Novels often draw inspiration from real life events and people. However, novels are works of fiction, not factual reporting. This raises questions around whether a novelist can be sued for how they portray real people and events in their fictional works. There are a few key considerations when assessing if a novelist can be sued: copyright infringement, defamation, and right of publicity/privacy.
Copyright Infringement
Copyright protects original creative works like novels. If a novelist copies sections of someone else’s work without permission, the copyright holder can sue for infringement. Examples include:
- Quoting lengthy passages from another book
- Closely paraphrasing major plot points or characters
- Reproducing song lyrics, photos, or artwork without licensing
Fair use allows some limited reuse of copyrighted material for purposes like commentary, criticism, news reporting, etc. But novels don’t usually qualify for fair use since they are creative rather than factual works.
So novelists need to avoid substantively copying from other copyrighted works without permission. Unique stories, characters, and prose are needed to avoid infringement claims.
Defamation
Defamation laws prohibit false statements that damage someone’s reputation. If a novelist includes a character based on a real person and falsely portrays them doing illegal, unethical, or reputation-harming acts, they could potentially be sued for defamation. For example:
- Portraying a real person as a criminal, adulterer, etc when they are not
- Making up damaging actions, views, or facts about a real individual
- Putting a real person in an extremely negative or offensive light
To defend against defamation, novelists should clearly state their work is fiction. Avoid too closely modelling characters after single real individuals. Seek legal advice if portraying public figures and officials who may scrutinize how they are depicted.
Truthful factual reporting is an absolute defense against defamation claims. But novels involve invented stories, so novelists must avoid false facts about real people that could damage their reputations.
Right of Publicity/Privacy
These laws give people control over how their name, image, and likeness are used commercially. Novelists need permission to directly depict living people or clearly identifiable public figures as characters in their books. Examples requiring permission:
- Naming a character after a famous actor, athlete, or other well-known figure
- Basing key plot points around a living individual’s real life personal events
- Describing a character’s identifiable appearance, mannerisms, style, etc
Novelists are generally free to be inspired by basic ideas or stories relating to real events and people. But closely mirroring a living individual without permission raises right of privacy and publicity concerns.
Obtaining life rights agreements with living public figures and others depicted in novels can help minimize legal risks. Fictionalizing names, details, and story arcs avoids directly violating publicity rights.
When Can a Novelist be Sued?
Novelists are artists, not journalists. They have creative license to invent characters and stories that may take inspiration from reality. However, they can still face lawsuits if their fiction crosses certain legal lines:
| Type of Claim | When a Novelist Could be Sued |
|---|---|
| Copyright infringement | Copying lengthy verbatim passages, song lyrics, etc from another copyrighted work without permission |
| Defamation | Including damaging false statements of fact about real people that harm their reputations |
| Right of publicity/privacy | Closely depicting living people without permission by closely mirroring their names, likenesses, personal details, and life events |
Novels that stray too far into directly copying other works or maliciously portraying real people face higher legal risks. But generally novelists have wide creative freedom in crafting fictitious stories and characters. Standard disclaimers that the work is fiction and that characters are invented also help minimize liability.
When is a Lawsuit Most Likely?
Lawsuits against novelists are fairly rare, but certain factors increase risk:
- Portraying famous people or officials – Public figures are more likely to carefully scrutinize their depiction and bring defamation or publicity claims.
- Extremely negative portrayals – Defamation suits are more common when false information clearly damages reputation.
- Veiled references to real people – Even fictional names and details won’t avoid privacy concerns if based too closely on living individuals.
- Factual memoirs – Lawsuits are more frequent against memoirs, autobiographies, and semi-fictional historical novels that blend fact and fiction.
- Using real sources extensively – Heavy reliance on copyrighted interviews, documents, recordings, etc raises infringement risks.
- Financial incentives – Multi-million dollar franchises and major movie deals give greater incentive to sue.
Still, most novelists can craft engaging stories without facing legal action if basic precautions are taken. Ambiguous inspiration from reality is safer than closely mirroring specific real people and events without permission.
Notable Cases
Some examples of novelists who faced lawsuits over their fictional depictions of real people and events:
Dan Brown – Da Vinci Code
Dan Brown’s popular conspiracy thriller The Da Vinci Code sparked multiple lawsuits:
- A author sued for copyright infringement over alleged similarities to his books on Jesus and Mary Magdalene. The case was dismissed.
- An author also sued claiming Brown copied his theory of a Jesus bloodline. Lawsuit dismissed.
- The book’s negative portrayal of Catholic group Opus Dei prompted a lawsuit from them. Case eventually settled.
Despite outrage from religious groups over the fictional story, the vague similarities to other works and lack of clear malice made legal hurdles for claims.
John Grisham – The Appeal
Grisham’s legal thriller focused on a rigged judicial election. A real Mississippi Supreme Court justice sued for defamation over parallels between him and the villain. The case was dismissed due to weak evidence the book was based specifically on the real judge.
Dan Moldea – Confessions of a Guerrilla Writer
Journalist Dan Moldea published a memoir about covering organized crime. It suggested a researcher for an alleged mafia member acted unethically. The researcher sued for defamation and won since the factual book directly questioned his reputation.
Historical Fiction Cases
Novels that blend fiction with historical events and figures have also prompted lawsuits:
- William Manchester – The Death of a President – Jackie Kennedy sued over his JFK assassination book before settling.
- Kathryn Harrison – Exposure – Lawsuit filed by poet Ezra Pound’s heirs over his portrayal. Dismissed on free speech grounds.
- Thomas Keneally – Schindler’s Ark – Defamation suit from one of the book’s Holocaust survivors that was settled.
These cases show the risks of depicting real historical figures versus purely fictional ones. Disclaimers on works as fiction are critical.
How Can Novelists Reduce Legal Risks?
Novelists can take several steps to minimize the chances of being sued over their creative works:
- Avoid lengthy verbatim copying of copyrighted works beyond short quotes, lyrics, etc that would fall under fair use
- Fictionalize stories, characters, settings, and details rather than closely mirroring specific real people and events
- Use disclaimers at the front of books stating all characters and events are fictional
- Avoid false damaging facts or implications about real individuals and groups
- Seek legal review for any negative portrayals of famous figures and officials
- Secure life story rights if depicting living people extensively
- Note when passages refer to actual sources like documents and interviews
- Purchase media liability insurance in case a lawsuit occurs
With proper precautions, novelists should feel free to craft engaging stories without being constrained by legal fears. Base characters and storylines on imagination, not harmful stereotypes or unflattering depictions of real people. Tell compelling human stories creatively without violating the rights of others.
Conclusion
Novelists have wide creative license, but not total immunity from lawsuits over their fictional depictions. Defamation, copyright, privacy, and publicity laws still impose some limits on how real people and works can be portrayed without permission. Lawsuits remain fairly rare, however, when no actual malice or blatant copying is involved. Ambiguous loose inspiration from reality is far safer than closely mirroring specific individuals and events or making up damaging false facts. With disclaimers that the work is fiction, avoidance of improper copying, and reasonable fictionalization, most novelists can craft bold inventive stories without facing viable lawsuits over their creative license as artists. The law affords significant protections for free speech and artistic expression, allowing novelists wide – but not unlimited – latitude to render reality in their own unique voices.