Does the indemnity clause, “The characters in this book are fictitous. Any resemblance to persons living or dead is purely coincidental.” really protect a writer from libel suits. The short answer is maybe. It really depends on the circumstances and how the author handles the writing.
I am not an attorney and I cannot offer any legal advice, but there are some scenarios that suggest an author proceed with caution.
1. You answer the phone. “Hi. I’m Joe Smith. My friend Kathy Jones told me you are a writer and I have a story that should be told. Thing is, I have no idea how to write the book. Can you help me?”
“Tell me about the story.”
“Well, it goes back about three generations. Seems my great-grandmother met this farmer. They wanted to get married. He was a good man, but her daddy didn’t approve of his children marrying beneath their stations. He told her if she married the man, he’d cut her out of his will. The farmer wanted to give Granny time to think about the consequences of marrying, so he suggested they wait until after the harvest for the wedding. Granny’s cousin wrote saying Gramps changed his mind and the marriage was a go. They got married, Granny was disinherited and the cousin got all the money. It broke up the family. We haven’t spoken to the cousin’s family in years.”
“Okay, do you have any papers, letters, or journals to prove the story?”
“No. This is my Granny’s story. She told my grandmother, who passed the story to my mother.”
2. A big scandal is reported in the local newspaper. Councilman A embezzled a couple of million from the city’s economic development budget. Great plot for a fictionalized account of the events.
3. A historical event catches the author’s interest. However, it is recent news and key figures and their families are still living.
I wouldn’t touch the ghost writing request for a million bucks. Unsubstantiated stories are an invitation to a law suit. Without documentation to prove the events, an author would be unwise to write this book.
I listened to a writer speak about the scandal story. Of course the names would be changed, the location disguised, and some changes would be made to the actual events. But anyone who was around at the time would recognize the story. There was a gleeful gleam in the author’s eyes as the details were revealed. The conference speaker was not amused. “Be careful,” he warned, “you could be sued. You might win, but your reputation will be damaged, and you might have problems getting an agent or publisher. Let’s face it,” he continued, “your agent and publisher will not appreciate being drawn into a legal battle.”
The third situation is a non-fiction publication that hits the book shelves every week with great success. The caution here is verifying the facts. Research. Research. Research. Adhere to the oath a witness takes to tell the truth, the whole truth, and nothing but the truth. In other words, present the facts; all of the fact; and leave out the spin.
While a writer should feel free to write his story, he should also exercise common sense in selecting assignments. The writing community is not that large. News travels and people will remember. Don’t risk your reputation and financial security for a burst of fame.