For a few years now, I’ve enjoyed reading Rob Walker’s opinions on everything from writing to contracts. He always has something new and unexpected to say. So when he told me that he’d written up some thoughts on this topic where fiction meets reality, I asked if he’d post them at suspenseyourdisbelief.
The Much Maligned, Or: Anyone Sued Lately for Malicious Intent in Mind of A Fictional Character?
So this publisher wants your book but he/she is insisting that you and all their authors keep a list of every “real person, real place, or real thing” mentioned in your novel…down to the page it appears on so that they can check behind the author to determine if the author has gone over the line and has said something “actionable” or even “objectionable”, or see if the poor dumb author inched toward that dangerous area where lawsuits live. This is a bit crazy, having authors second guessing everything they can say about products, public personalities, dead people, items and things, and to my mind this is just being way overly paranoid on the part of the publisher and way out of line with the spirit of the law that protects folks from people like Ann Coulter. I sense once burned twice shy is behind this particular publisher’s decision. That at some time in the past, perhaps decades ago even, the publisher got sued because of a book that maligned someone or something in the real world.
If you go way out of your way to malign some product badly, if you attack a real person, place or thing, yeah, you might have a problem down the road and your publisher hates being embroiled in any legal matters. BUT, if in passing your character takes a couple of Excedrin….and even if he abuses the medication as in Stephen King’s The Shining, you realize no one has a case and no logical lawyer would pursue a case on behalf of Excedrin against Stephen King’s fictional, slowly going insane character’s use of the pills. If a character in your story verbally attacks let us say O.J. Simpson, you might have to worry if you are in the legal department of the publishing house, but if your cop character offers an opinion on his guilt or innocence there is no case whatsoever.
Publishing Houses in NYC maintain lawyers primarily for their nonfiction titles which so often cross the line as in an Ann Coulter book or others who attack individuals and such organizations as Mothers Against Drunk Driving or Wives of 9/11 Victims. It is as rare as can be for a fictional character’s worldview, where he hangs out, or what he drinks, or eats, to be of concern to lawyers bent on winning their cases. Rare for a fictional book to have a cadre of lawyers coming after it — as in the DaVinci Code, but even there THEY HAD NO CASE. It’s fiction. Guess who paid the court fees? Not even the Pope could sue Dan Brown and win, and please, how many real places were named in Brown’s book aside from Vatican City and its rituals and secrets?
Another author attempted to sue me over my first in series novel, Killer Instinct, because I used her nonfiction as-told-to book along with newspaper accounts for forensic details in an airliner crash—a real crash in the real world. Anyway, this author never got off the ground with her suit, when I placed my paragraphs side by side with hers and sent them back to my publisher (Berkley). Her publisher’s lawyers immediately recognized she had no case whatsoever and it went away but she did not — she lambasted my entire eleven Instinct novels and my four Edge novels on Amazon for years. It is extremely rare that people sue over fictional works and invariably when they do, they lose. In my case, her lawyers knew she hadn’t a leg to stand on. But my paranoid agent, my paranoid editor, my paranoid wife all jumped down my throat on learning I was being sued, each in turn asking, “How could you be so stupid as to copy someone else’s work?” I was accused and condemned even before I saw the complaint, which was baseless. This was years ago, of course, and I have long ago moved along, but I learned a few truths that came out of this, and one is that an author scorned is an author scorned.
I suspect smaller and medium-sized publishers have more nightmares and sleepless nights over this subject as they may have one or no lawyers on retainer, but by the same token, they really have no business telling writers they can’t use real people—dead or alive, real places, and real products and stuff and things in the real world in our books. Or that we need to reword a phrase because it may upset someone working at Proctor & Gamble because of a joke or a jibe, while a good one needs be taken out or reworded to pablum. It is censorship and nonsense.
King’s and Koontz’s entire body of work are huge and hugely proliferated with issues and news of the day, the famous and infamous, from Wrigley’s gum to Bono. If a book does engage in malicious intent and truly attacks someone in a cruel and sustained and systematic and relentless way (rather than a quip or joking way) and that is the obvious purpose of the book itself, yeah they can sue you and win, but there has to be proof of malicious intent. Remember the film with Sally Fields and Paul Newman entitled Malicious Intent? The entire film dealt with what is and what is not actionable and intent is at the heart of the matter. Malicious intent is hardly the case in naming a certain restaurant and using it for your ends, or setting a gun battle inside a real movie theater in Chicago, because a character wanted it to happen where John Dillinger bought it, and etcetera, etcetera. Been doing that since 1967 and have had no repercussions save the one fool who thought she was going to collect big time on Killer Instinct.
After having written crime novels as long as I have, you do learn a bit about the law and that the law is actually based on common sense if you scratch the surface of the thing. I have published with some eight or ten publishers, working on my 50th novel, have 23 ebooks, many of them Original Titles partnered with Amazon.com, and can you imagine if I had to make a list of every product, every person, every restaurant, theater, street name, and issue in the media? When would I have had time to write? It is hard enough keeping a list of character names, but in the end you cannot sue what is sifted through the mind and five senses of a person who does not exist outside your fictional world. When asked to provide such a list for a recent title, I simply ignored it and waited for the publisher or my editor to demand it. I never got that demand and the book was published as I wrote it so that Remington shotguns and the names of people in the news, places my characters imbibed, hotels, streets, cities, towns all stood as they should.
Frankly, very like all the confusion over copyright laws, the laws surrounding malicious intent are more often than not misunderstood, and cause more worry than they ought to. As to having to provide a complete laundry list of names of people, places, and things you place in your novel, well this is a silly game some are playing and absolutely unnecessary.
ROBERT W. WALKER has written award-winning historical fiction since 1982. His current series features Inspector Alastair Ransom. Titles include CITY FOR RANSOM (2006), SHADOWS IN THE WHITE CITY (2007), and CITY OF THE ABSENT (2008). Find him and learn more about his work at www.RobertWalkerbooks.com and www.HarperCollins.com