In his recent article What’s in a Name? (Guardian Unlimited, Nov 17, 2006 –http://books. guardian.co.uk) John Sutherland explains the legal ramifications of using real names in fiction, whether intentionally or not.
In his article, Sutherland tells of several high profile writers who have been sued by the ‘real’ owners of their fictitious characters, mainly because the storyline shows them in a bad light. He goes on to explain that using the standard disclaimer “any resemblance is purely coincidental" is of no benefit whatsoever in the eyes of the law.
So what does this mean to writers around the world? According to Sutherland, “if you can be shown, by using a real-life name, to have injured a real-life reputation, then you will pay. ”
One of the examples used by Sutherland was that of novelist Jake Arnott who created the character of Tony Rocco, big-band singer turned pervert. Unfortunately, real-life Tony Rocco, a former big-band singer (of impeccable reputation) was not at all thrilled about Arnott’s character, or the possible damage to his reputation.
The result was the withdrawal of the book, which was subsequently destroyed, causing huge costs to the publishers Hodder and Stoughton.
When writing my novel Saving Emma, I created Gary Bedford , the male protagonist who was a police officer based in Bairnsdale, Victoria (Australia). After the book was finished and under contract, I discovered there was a real-life cop named Gary Bedford living in same city I used as the base for my story. Since my character and his name were entirely fictitious in my eyes, I did nothing to change the character’s name. But now it seems I could be at risk of being sued for innocently creating a character with the same name as a living person, especially since they share the same occupation.
It’s been known for many years that using real people in your stories, especially those you don’t like, is a huge risk to take, and would leave you open for litigation. No-one could have predicted that using fictitious characters meant you could become a sitting duck in regard to legal action.
In my opinion, this is just another example of the world going mad. Litigation is rife, especially in the US, but we’re seeing more and more of this trend here in Australia. It seems the whole world wants a free ride, and this sort of nonsense makes it easier than ever to get one.
What precautions can we – as writers – take to prevent the risk of litigation for our creative works? Unfortunately I don’t have a cut and dry answer, but I suggest doing a search to find out if such a person exists, and check out his/her situation, occupation, etc. That will at least eliminate the chance of accidentally using the same or similar background information.
Creating characters is now going to be a real concern for many writers, myself included. It seems the joy of writing has become a need for caution instead.
Cheryl Wright is an award-winning Australian author, freelance journalist, and editor. In addition to an array of other projects, she is the owner of the Writer2Writer.com website and the Writer to Writer monthly ezine for writers. Her publications include novels, non-fiction books, short stories, and articles. Her upcoming releases are Winter Sabbatical (2007) and Saving Emma (2007) from Black Velvet Seductions, and The Write Resources (2008) from Central Avenue Press.
Visit Cheryl’s websites http://www.cheryl-wright.com and http://www.write-essentials.com