Can I Write Fictional Stories About Real People?
The Blunt Instrument on sourcing your characters from life—without getting sued
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The Blunt Instrument is an advice column for writers, written by Elisa Gabbert (specializing in nonfiction), John Cotter (specializing in fiction), and Ruoxi Chen (specializing in publishing). If you need tough advice for a writing problem, send your question to email@example.com.
Dear Blunt Instrument,
I’m fascinated by a particular cultural event from recent history. (Not a huge one, and not a negative one—think “the first season of Real World” in scope more than, like, #MeToo.) I’ve been wondering lately whether that fascination would lend itself to a novel, but I’m not sure how to walk the line of turning fact into fiction. If we continue with the Real World metaphor, could I write about Kevin, one of the actual contestants, which would mean ascribing thoughts and offscreen experiences to a real person who is presumably still alive? (It’s not actually Real World, so I had to look up the contestants’ names, please don’t anyone get mad if Kevin was boring.) Should I add a little more distance and write about a fictional fan, but still use real events from the show? Or should I write about a very popular and somewhat genre-defining fictional early reality show called, say, True Life?
I realize some of these are just questions of preference, but I feel like there must be some general rules or at least suggestions. What considerations should I take into account when deciding how much to rewrite history, versus simply being inspired by it?
I really thought the first season was the Puck one
Blunt Instrument is many things—a critic, a taskmaster, a style icon—but Blunt Instrument is not a licensed lawyer. Before we talk about the ethics and aesthetics of your question, we’ll outline some potential legal issues you may want to discuss with an actual lawyer before you make a final call.
Let’s keep using the example you suggested, Kevin from Real World Season One. Just as a TV watcher or reviewer back in 1992 might have found Kevin either heroic or unsavory, and been free to say so, Kevin’s televised personality is fair game for your characters to snark on or stan. If they’re watching him on TV.
The trickiness appears when you depict not only what TV watchers think about Kevin, but what Kevin thinks about Kevin, or you begin to invent things for him to do behind the scenes. Then you get into the realm of potential defamation. This is a notoriously weaselly area of the law, a discipline rich in weasels. “Perplexed with minute and barren distinctions,” defamation (like its cousin, slander) can be boiled down to three broad-strokes questions:
- Is the person you’re writing about dead? If so, knock yourself out. Dead people can’t sue you for what you write about them and neither can their heirs nor fans. Breakfast on their ashes, you monster.
- Is the person you’re writing about famous enough to qualify as a Public Figure? Are they a big-name actor, musician, politician? If so, good news for you, because public figures have to clear a higher bar in a defamation case: they have to prove you were acting with “actual malice,” about which more below.
- Is the person you’re writing about an obscure private citizen? If they aren’t in the least bit famous, you may have a problem. Especially if what you write is construed as implying an actual, real-life (insulting) truth about them, rather than pure invention.
If something is so absurd that no one could possibly believe it—say a story in which Real World Kevin teleports back in time to seduce Marie Antoinette—you’re fine: no reasonable person would think that’s something Kevin might do; no one’s under the suspicion you’re making “actual statements of fact about the plaintiff.”
But let’s say it isn’t Kevin, rather my friend Gil, a non-famous person. If I write Gil into my novel but depict him only as a reasonable and forthright dude … well, I’ll probably be fine. If I tell the reader I don’t like him very much that’s also probably fine; “I don’t like Gil” isn’t actionable. “Gil’s objectively a shit” may be more so. To answer your question above, if I fictionalize Gil but everyone who knows him can tell it’s Gil, then we haven’t solved much.
Let’s shift away from jurisprudence for a moment and into the realm of aesthetics. The trick with non-famous real people is not just to rename them but actually fictionalize them. Rather than giving real Gil the fictional name Gus and describing him as detestable, I’d do better to use my fiction for something other than settling a score with Gil. Fiction is a poor tool for revenge. In my role as a fiction instructor, I’ve read probably hundreds of stories expressly written for the purpose of revenge and almost all of them were dull, partial, not-quite-credible affairs.
The dirty secret of humanity as a species is that people don’t differ from one another as much as we might like to think they do; what differs are their circumstances. Let’s say I’m writing a story about a standup comedian—I’m doing this because standup is an interesting and perennially topical subject. Let’s say I have an idea for a story and need to select my characters. I don’t know any professional standup comedians, so the first question I’ll ask myself is, “Who do I know who could be a standup comedian?” Not just who do I know who’s funny, because I know lots of funny people—who do I know who would actually have the guts to get onstage and be laughed at?
Got someone: my friend Kirsten, a professional public speaker and also funny. Okay, so the standup comedian in my story—for pure story reasons—needs to be elected to the California State Senate, and then forced to resign. Eventually, for story purposes, I realize they need to be a man. Shoot, Kirsten may not work. But my friend Kenny will. Am I basing the character of the senator on Kenny, such that the senator is, basically, Kenny? Not as such. The Senator is an embezzler (Kenny never stolen a dime) and hotly religious (Kenny agnostic). But Kenny has a teasing way of greeting people he knows well—he squeezes their bicep, pinches their stomach. I’m porting that to the senator. Now I’m figuring out how to depict the Senator’s shamefaced return to standup in the ruin of his Senate career, so I’ll make use of the pursed, frozen frown Kenny greeted us with on his return from Florida after a bad breakup; I’ll keep in mind, too, the way that frown became, in the course of a week, boasts about how things were better without her, about how he’d been scheming to get out of that relationship all along. I’ll use lots of Kenny in the story, whole pages worth, and if I do it right he’ll never recognize himself. No one else will either.
We think of ourselves as unique, partially because we’re trying to market that uniqueness. But in truth we’re collections of gestures and perceptions and received ideas, united mostly by whatever fiction we’re using to provide ourselves with coherence. (Rimbaud: Je est un autre. I am someone else). Even when we write about the very famous—people so constantly in the public eye the Public Figure defense protects our work—we’re inventing them, supposing, projecting.
I’m thinking here of Chimamanda Ngozi Adichie’s wicked short story “The Arrangements,” a half-burlesque of Mrs. Dalloway that imagines Melania Trump reviewing the week just past as she prepares for the arrival of her Pilates instructor. What’s so effective about the story is the way Melania remains on the side of satire but resists becoming absurd. There’s a richly imagined world here. Her jealousy of Ivanka, protectiveness of Baron, even her fondness for Donald ring true (“even the way he nursed his grudges, almost lovingly, unleashing in great detail slights from 20 years ago, made her protective of him.”)
The Trumps are a litigious family, but if Melania tried to sue Adichie for “The Arrangements” it wouldn’t survive summary judgement. Public figures can’t sue The Onion either, or Saturday Night Live. Satire is a legal shield. Even when Adichie’s Melania rubs caviar cream onto her son’s face, or fantasizes about seducing her instructor, or when “just thinking of Ivanka brought an exquisite, slow-burning irritation,” Adichie’s exercising her rights.
There’s a deeper truth here too, which is that Adichie’s story isn’t about Melania at all, not the real person Melania may suspect herself to be. It’s about an actor in a Melania mask. Gore Vidal, who knew something about writing history (recent history included) wrote, “Each writer is born with a repertory company in his head. Shakespeare has perhaps 20 players … I have 10 or so, and that’s a lot. As you get older, you become more skillful at casting them.” To create a fictional character is to fit somebody for a mask.
The law is mutable but the law is also for sale. On the one hand, the fiction writer ought to have godlike rein to invent and un-invent what she likes. On the other hand, there are lot of assholes out there. The First Amendment protects most books, but if you want to be on the safe side, denature your characters (or, as a smart editor told me of a too-autobiographical story I showed him: “Next time, chew your meat a little better.”)
I’ll leave you with an interesting coincidence. I know the example you chose in your letter was chosen at random, but Real World’s Kevin was, in fact, sued for slander only last year, thanks to something he’d written and published. The woman who sued him won.