Legal Terms of Respect for Writers #1

Installment #1 of my big takeaways about slander, libel, and copyrights from intellectual property attorney Renee Duff’s presentation this past Saturday at the NYC Self-Publishing Expo.

Did you fiction writers ever wonder how much you could “get away with” when you want to weave an actual person or business establishment into your story?  Well, I have. For instance, how could I write a story about a gambler with a golfing problem, set in Cincinnati, without weaving in bits and pieces of the legendary Pete Rose, whose continued presence in the Southwestern Ohio air ranks second behind only oxygen as a life-defining substance?

When we use real peeps and places in our make-believe – especially the notorious ones (after all, they make things interesting), how do we avoid a lawsuit?

According to attorney Renee Duff, a little knowledge about intellectual property law can go a long way toward keeping you out of trouble.  For instance, if you use a real person or place, keep it within the “fair use exceptions” to copyright law.  Here are four fair use exceptions that Renee cited (her headings but my examples):

  • Newsworthiness.  Don’t use your story to get back at Vinny down the street, who didn’t do such a great job and overcharged you on top of it, last time you took your car to his shop.  It’s not newsworthy to the general public, so Vinnie will have no trouble establishing your specific intent to harm him.
  • Public domain.  You could weave portions of Homer’s “The Odyssey” into your story because it’s been longer than 70 years since Homer died; so his copyright has expired.  But if you lift a paragraph from, say, James Patterson; you just might hear from his legal counsel.
  • Educational purposes.  Let’s say your’re writing a novel about a character who has discovered he is HIV-positive; and you want to employ your literary talents to educate readers about the real risks of “catching AIDS from someone else.”  So, you decide to put the words of a specific study by a specific university or research team into the mouth of one of your characters.  As long as you’re not butchering the study’s results and conclusions, you’re probably safe.
  • Derivative works.  “Harry Potter” this, and “Twilight” that!  If you want to use Bella, Dumbledore, or any other character or scenario from someone else’s literature in your own story (beyond the incidental name reference or three), always get permission from the original author before you publish.

Finally, don’t write something unfair or damaging about a real person or business!  Don’t give someone a reason to come after you, and chances are they won’t.  There’s no legal watchdog agency reviewing your work; enforcement of slander, libel, trademark and copyright law is up to the individuals who might be harmed.  So use common sense – treat others the way you want to be treated – and when in doubt, change names and identifying details, or get permission.

Next time I post, I’ll talk a little about what I learned from Renee about copyrighting our own work.

One thought on “Legal Terms of Respect for Writers #1

  1. Carrie C. says:

    Thanks Dave, that’s a useful overview. I’ve wondered about some of the characters in my Spanish Civil War novel, as almost all of them are based on real people.

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