February 21, 2010

Guest Post: Robert W. Walker

Filed under: The Writing Life — jenny @ 10:32 am

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?Rob Walker

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


  1. Wonderful article Rob, and one I’m going to hang onto. I always set my stories in real places, and will on occasion use the names of real people or events, as well as products. So far, no publisher has ever asked me to change anything or produce a list of names and places, but it’s nice to know if one ever did that I can safely ignore them. I have never defamed anyone. All I do is write fiction.

    Every writer should read this to clear up the confusion many of us feel over this issue.

    Comment by Pat Brown — February 21, 2010 @ 1:57 pm

  2. Hi, Rob:

    I’ve been stewing for some time over this problem. In my WIP, I want to use something that is quoted on the PBS web site in connection with one of its documentaries. I haven’t read this particular quote anywhere else, and the person who made the comment is a living author and expert in her field.

    I’ve read the book PBS mentions but don’t find the quote in it. Should I just try to contact the woman by e-mail and ask if it’s okay to identify her in connection with the PBS report, or should I just pussyfoot around it — “a TV report, with a comment by an expert on the subject”?

    My protagonist is sitting at her computer, doing a search,and comes upon this documentary web site and it turns the story in a possibly new direction.

    “It’s a puzzlement” — quoting the fictional King of Siam.

    Pat BrownING

    Comment by Pat BrownING — February 21, 2010 @ 8:29 pm

  3. I hand this one to you, Rob, and thanks to the Pat Brown(ing)s for visiting!

    Comment by jenny — February 21, 2010 @ 8:57 pm

  4. OK am going to field the question but first thank you Pat Brown — Pat Browning is also well spoken authoress often posting on DL as well as Pat Brown. That fixed in our minds, thanks Pat for the cogent words – any praise of my remarks is cogent, don’t you see….well thanks is what I mean.

    Now as to the question of quoting said author heard on PBS. She put the words out there on the radio; obviously, she will have to live or die by them. If you wanted to you or anyone could get the radio transcript, I suspect. As to permissions for quoting say Rush Limbaugh – no, not really. He is a public figure and publicly spews forth. If he said it, it is quotable so to speak although I would likely only quote him to lambast him. It is in the level of maliciousness that you need worry. If Anne or is it Ann Coulter says something awful and you want to slam her for slamming someone else, again the language you use and the intensity must be weighed against the legal definition of Malicious Intent. If it is a quip or a quick quote, I would not worry one iota, but if your book is a systematic attempt to destroy some person or personality or persona — private person or public and this person can PROVE it — then you have a problem and courts are going to get involved, but it does not sound in the least that you have a poblem here. I suspect the Queen of Slam is Coulter, the King of Slam Limbaugh. Can they come after me for my publiclly here calling them out as such? No. They are wheat they are. Recall the guy who wrote the book with the title The 100 people who are bringing down America or some such title — that was nonfiction or opinion stuff; yours is fiction and all is filtered through your ficitonal character. Nahhh….I think you have no reason to lose any sleep over it and you needn’t chase it down. It is public domain at this point. Now if you used six or more lines from the PBS program, you need to get permission.
    That is a copyright concern not a Malicious Intent question.
    Can we get a lawyer in here? A good one who knows this stuff?


    Comment by Robert W. Walker — February 22, 2010 @ 10:50 am

  5. I’ve never thought of this as a major problem before, maybe because a) I’m a new writer or b) because I write fiction (paranormal/science fiction/fantasy). But when I do write something that comes from someone I know, it’s more of the way that they are than the things that they’ve done.

    If I do use something that someone has acutally done, I usually write something that I’m pretty sure the person who did it wouldn’t admit to it. That is if the person has actually read something I’ve written.

    But on the note of what a writer should or shouldn’t write is limiting a writer, then I think it’s a question of what category or genre is your story? For example, if you have a racist person in your story and you want to get across how much of a jerk they are, then certain language should be used. If it upsets the person who’s reading the book, then the job as a writer is done, it is my job for you to not like this person, so that when he trips down a flight of steps later you’ll feel more vindicated.

    Which is one of the reasons why I think, Battlestar Galactica is going so well, they’ve made up their own insults and language that really means nothing to anyone in the real world. Is that what we should do?

    As far as the publishers go, someone wanting to sue you over the opinion of a character in a book is ridiculous because I’ll let you in on a little secret, “They’re not real.” I have a character that hates Paris Hilton, Paris Hilton can’t sue me, the character isn’t real, and I don’t hate Paris Hilton.

    Comment by Lauren — February 25, 2010 @ 2:14 am

  6. Well said, Lauren! Thanks for visiting. The Paris Hilton comment made me laugh. I was interested to get a glimpse into something I too had no idea was an issue.

    Comment by jenny — February 25, 2010 @ 7:49 am

  7. As aways, your take on publishing is thoughtful and valuable. Thanks for continually sharing your hard-earned knowledge.

    Comment by Rebbie Macintyre — February 25, 2010 @ 3:22 pm

  8. Thanks for visiting, Rebbie! You have a beautiful website.

    Comment by jenny — February 25, 2010 @ 4:25 pm

  9. This is my first time leaving a comment, here goes…
    Thanks for all the valuable info! I’m getting ready to copyright my first romance novel and there are a couple things that concern me, some of which I have gotten the answer to from Mr. Walker’s article, “Thank you, so much!” I still have a few questions, such as:

    In one scene, a song comes on the radio. Can I write the chorus to the song in my book since it relates to the persons immediate situation? If not, how can I get around it without compromising the writing, yet not leave myself vulnerable to lawsuits? Anxiously awaiting your response…

    Comment by mary — March 25, 2010 @ 7:55 am

  10. Welcome, Mary! I’ll let Rob know you stopped by…

    Comment by jenny — March 25, 2010 @ 8:06 am

  11. Mary – great question dealing with music lyrics. Lines of poetry, lyrics, and even using quotes from say the same book at chapter headings as I do often can make publisher’s lawyers cringe. There is a pretty firm acceptance of a few lines. Four lines is not likely to cause problems, but six is seen as copyright infringement. I have run into this using Elvis as well as Axel Rose. Also by quoting from a single book a bit much and making Berkley Books lawyers a bit nervous. So in terms of number of lines, if the chorus is less than five, no more than six, you should be OK. What I did with Elvis coming through the killer’s radio in Hawaii in Primal Instinct is intersperse key lines coming over the radio with the killer’s commentary on them and his thoughts and his actions as he was disposing of a body.

    One way to get around the limit of lines – do not put them all in in a block….intersperse them over two pages. But yes you need watch it — as with a poem. To use the entire poem, you are in jeopardy.

    Hope this helps. The key is to focus, I think, on your character in the scene and how he or she reacts to the lines.

    Rob – oh and thanks everyone for visiting here and for your kind words about my words on the subject. I appreciate it. Jenny’s great, ain’t she?

    Comment by Robert W. Walker — March 25, 2010 @ 8:22 am

  12. Thanks, Rob, I knew you would be able to steer Mary (and others) in an expert direction!

    Comment by jenny — March 25, 2010 @ 8:54 am

  13. Wow! I can’t thank you enough for the quick response… Mr. Walker, you’re a Godsend! I consider myself extremely fortunate to have happened onto this site and just as thankful that Mr. Walker authored the Guest Post. To Mr. Walker, “Primal Instinct” will be tucked away inside my luggage for my next vacation ‘read'; I can’t wait… Thanks again for your time and expertise!

    Comment by mary — March 25, 2010 @ 9:45 am

  14. Happy you found us, too, Mary, and so glad Rob could help. He knows everything about a LOT in this biz…

    Comment by jenny — March 25, 2010 @ 9:51 am

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