WRITING DIFFICULT TRUE STORIES

One of the most compelling types of writing for many is telling true stories from the writer’s own life, in other words, writing a memoir. Memoir writing isn’t just for books targeting adults. Examples of memoirs for young people include The Red Scarf Girl by Ji-li Jiang (her adolescent years in China at the beginning of Mao Ze-dong’s Cultural Revolution), Real Friends by Shannon Hale (a graphic novel about difficult relationships), and I Am Jazz (a picture book about the real-life experience of a transgender child). Memoir writing is tempting because crafting a memoir can help a writer make sense of life. It is one of the most personal forms of writing, but it is also one of the forms that create the most legal questions for people. Writers wonder if they need to change everyone’s name. They wonder if they should write under a pseudonym. They wonder if they can get in trouble if they remember something wrong. They worry about being sued. As a result, many writers enter the memoir with hesitation, trying to navigate the tricky waters of staying legally safe while also telling their story. This can be frustrating and stifling. Many teachers of memoir writing recommend throwing aside all concerns about legality in the rough draft and simply focusing on getting the story down on paper. Memoirs are never a matter of one draft and a polish anyway. Because the memoir is so deeply personal, the process of revision is almost always complex and multi-stepped, even aside from the legalities, as you find the purpose of the story within all the memories. But Still, What About the Legal Stuff? First, when in doubt, ask a lawyer. If your memoir is absolutely going to contain things other people will not like having revealed, you will be best protected by securing a lawyer (especially if self-publishing. If you’re going through a traditional publisher, they may have their lawyers go over the manuscript, but it doesn’t hurt to be especially careful). What follows here in this essay isn’t legal advice, and I am not a lawyer. It’s basically more along the line of explanation and information so you have a better understanding of the potential problems and will be less confused when time comes to get feedback from a lawyer. You Have A Right to Your Story In the US, with our first amendment rights, courts are generally reluctant to prevent you from being able to tell your story. However, this doesn’t give you complete freedom to tell the stories of other people or to write for the purpose of revenge. So basically, the two big potential issues are libel and invasion of privacy. As a result, let’s talk a little bit about what those are. Libel is defamation in print, and defamation is a false statement that injures a person’s reputation. The real person must be identifiable (which isn’t fixed by simply changing the name. You would need to make the real identity of a character unidentifiable to be completely safe). If a person in your book is identifiable despite your best efforts to prevent that from happening, the best defenses to libel suits are truth, opinion, or parody/satire. For instance, my opinion of Person A may be that he is horrible. He won’t like hearing that, but it’s only an opinion and not libel. However, if I say, “My opinion of person A is that he is a horrible person because he poisoned my cat,” then I have introduced a statement of fact and that can be libel, unless I can prove it’s true. (If I only thought it was true, I could be in trouble. And it doesn’t really help to say “because I think he poisoned my cat.” Sure that sounds like an opinion but it’s still trying to convince the reader of a fact). Thus, an opinion may be problematic if it implies facts, like “In my opinion, he is a murderer.” By definition, you’re pretty much saying he killed someone, and that is a problem. Keep in mind that the best defense is probably to avoid being sued by doing one of three things: (1) writing the person so that he is truly unidentifiable, even by other people who knew him and you, or (2) waiting until the person dies since you can’t libel the dead. Invasion of privacy laws can be a problem even if you are simply telling provable truth, giving opinion, or saying things that aren’t all that bad about a person. Invasion of privacy laws allow people to be left alone when they want to stay out of the public eye. Truth is not any kind of protection here because the issue is that they didn’t want to be talked about at all. So if a person is identifiable in a memoir and the things you are sharing are likely to put their private lives on public display, you could be in trouble, especially if the person can argue that they believed the stuff you’re disclosing would remain private. For instance, if you disclose that Aunt Lucy’s famous cherry pie that won all the ribbons at the fair was actually made from a mix of canned cherry pie filling and pomegranate juice, she might be publicly embarrassed, and it might lead to her not being able to enter her pies in the competition any more. She might have told you her secret “ingredients” believing you would keep it secret. It’s not a huge things, but it could be problematic in court because of invasion of privacy laws. Memoirists have been given some leniency because of the court’s support of a person’s right to tell his or her own story, which invariably will include the revelation of other people’s stories as well, but that isn’t a free pass to invade someone else’s privacy, especially when that revelation will negatively impact their lives. You can, of course, wait until the people involved die. You can’t invade the privacy of dead people. The best protection when revealing pretty much anything about living people is to get them to sign waivers saying they knew about the contents of the book as it related to them, and they were comfortable with it. Again, a lawyer can help you with that. Make a list of everyone in your memoir. Ask yourself some questions: Is the person alive? Is the portrayal positive? Does it reveal information the person told you in private? The answers will help you decide if you need to drop a story that isn’t really important to the book or get a waiver to keep you safe or change the story a bit to better hide the identity of the person But If I’m Changing Things, Is It Now Fiction? Since protecting the people in your story can involve changing some things to make them less identifiable, memoir writers can be uncomfortable, because what they have written isn’t exactly what they experienced. They worry that they aren’t being true. The reality is that all memoirs have things in them that aren’t entirely true. Memories are dubious sources of truth at the best of times. And there will be things you changed to protect yourself from issues with invasion of privacy or libel (changed names, altered circumstances). These sorts of things are actually expected and accepted in memoirs. They are your story, not a deeply researched biography. Still, you do want to avoid out-right lying. If you once chased a fox out of your garden and then wrote the memoir of your life in the wilderness where you faced off against packs of coyotes, bears, and rabid critters, that’s not a memoir, that’s fiction. And passing off full-on fiction as memoir can be fraud. Fraud suits for memoirs come about from blatant lying intended to make the memoir more interesting or more controversial. Simple mistakes of memory or changes made to protect the identity of other people do not result in this kind of legal problem. For example, if you and your brother chased a fox out of your family’s garden, but you know your brother would rather not be mentioned, then simply leaving him out of the tale isn’t fraud. How Unrecognizable Do People Need to Be? This can be one of the trickier things about memoir. If you set the memoir in your hometown where you know lots of people and you write about the town eccentric in a negative way but change his name, no one in that town is likely to struggle to come up with who you’re talking about. A simple name change is not usually enough. You might change the people’s physical characteristics, job, and name — but still, you know the folks from your hometown will recognize him, you’ll likely need to do a bit more. You might consider writing under a pseudonym or pen name and making up a name for your small town in order to disguise the identity of the people involved. This can work, but these days it’s hard to keep the true identity behind pen names secret, and as soon as people know the real writer is you, then all the issues of identity of characters returns. So even if you use a pen name, you’ll still need to make enough changes to hide the identity of your characters, which may include changing the location of the incidents, the time period of the incidents, or simply waiting until the person dies. Again, try to think of this as a specific task in your revision process. One with several steps:

1.  If you have some issues with negative or embarrassing portrayals. Make a list of the places in the book where these portrayals happen.
2. If the things revealed were common knowledge (or took place in a spot where there is no expectation of privacy—like they attended a protest march) and directly impact the telling of your story—you’re probably fine. (For example, your eccentric once snuck onto one of the Possum Day floats dressed as the Statue of Liberty, you can likely be fine to tell the story of that. The event had witnesses. The person took part in the public event of his or her own volition. And though it might be embarrassing, it was a public act so not protected by privacy law. Again, a lawyer will be the best judge).
3. If the things were revealed to you privately (such as the town eccentric once telling you he doesn’t like to do laundry so sometimes he wears his clothes inside out), get a signed permission to use the information in the book.
4. If you can’t get permission—alter it to obscure identifiability or cut it out if it isn’t essential to the story.
5. And, always, when in doubt, lawyers are invaluable. Be sure to find one well-schooled in libel and invasion of privacy issues.

Know that people can sue over all sorts of things, even if they aren’t much likely to win. So be prepared. Keep meticulous records. Avoid revenge as a writing motive because that will virtually always drag you into legal issues. Add disclaimers (they aren’t perfect protection, but if you’re altering facts, it’s worthwhile to add a disclaimer letting readers know that. You can find lots of help about disclaimers online.) Memoirs can be legally tricky, but they can also be powerful stories that illuminate moments in history, and give readers in tough situations hope and make them feel less alone. They are engaging, compelling, and cathartic. So, if you feel you have a story that needs to be told, go for it, with eyes wide open and courage in your heart. Your readers will be glad you did. With over 100 books in publication, Jan Fields writes both chapter books for children and mystery novels for adults. She’s also known for a variety of experiences teaching writing, from one session SCBWI events to lengthier Highlights Foundation workshops to these blog posts for the Institute of Children’s Literature. As a former ICL instructor, Jan enjoys equipping writers for success in whatever way she can.