Essays

Life, Literature, and Litigation

By posted at 6:00 am on August 9, 2017 5

 

When my debut novel came out, I had two firsts—a work of published fiction—and a lawsuit.

I had never thought about lawsuits before. I incorporated everything and everyone I knew or imagined into my fiction, spinning them into characters. At first, to my surprise, most people didn’t know they were any part of my stories. I was sure my mom would be delighted that I used a story in my novel that she had told me a million times over: how at 19, she had been jilted at the altar by the man she thought she loved, marrying a brute on the rebound. She was later visited by her ex, who brought his wife with him, taking my mom aside to whisper to her that he had made a mistake. “It’s really lovely you wrote that,” she told me, “but that character is not anything like me at all. Plus, that never really happened that way.”

My mother might not have recognized herself in my pages, but another family—one I didn’t know—did. A week after my first novel came out, I received a letter from a lawyer. A family, who lived in Pittsburgh, where I was living at the time, just happened to share the same (very common) names I had given my characters, along with the same dramatic conflict. They were suing me for invasion of privacy. I called my publisher, shocked. “I want to countersue.” I cried. “Even if I did know them, which I don’t—how could they imagine I’d be stupid enough to use their names and their situation?” There was a funny silence and then the publisher said, “We’re changing the names in the paperback. We don’t want to hold up the book because of some lawsuit.” I was upset. These people were claiming that I had stolen their life when I hadn’t! And worse, I had to change the names because of them and only then was the lawsuit dropped.

But that didn’t squelch my yearning to write about what mattered to me. I started publishing personal essays, and I worried about how things might get more personal without a character to hide behind.  I was writing about my life, I was laying myself bare—how I felt, how I hurt, and sometimes how I healed. When I was asked to write an essay about food issues for an anthology, I wrote about a long-gone ex who monitored my food intake until I was down to 95 pounds, who clouded my vision so I couldn’t see how controlled I was. Of course I knew enough not to use his name, his physical description, or his job, but even so, two weeks after the anthology was published, I got a call from the publisher’s lawyer. Somehow my ex, who I hadn’t seen in years, had read the essay. Though he insisted he had never done a single thing I had mentioned in the essay, he still recognized himself. And he wanted to sue.

“His wife is very upset,” the lawyer told me. “He said that’s why he called. Did you ever tell him you were writing about him?”

“Never,” I said.

“Okay, good,” the lawyer said, “then I can make him go away.”

So was that the key, I wondered? You had to ask people before you wrote about them, even if you disguised them? When I was asked to write an essay for an anthology about infidelity, I played it safe. I asked permission. I was writing about one long, hot brutal summer when my first husband was cheating on me. His sister, who was also my best friend, was orchestrating his trysts without my knowing, and her shrink was stalking her. She not only okayed the piece, she enthusiastically provided extra details. She was fine when my piece was reprinted in a major magazine, fine when it landed me on the Today Show, but when I got a movie option, she immediately threatened me with a lawsuit. I was gobsmacked. “But you gave permission!” I insisted. “And it’s my point of view of what happened!” I had to hire a lawyer from The Author’s Guild who assured me that because she had known about the story for so long, because it had been out there, she had no recourse. And he wrote a polite letter to her to tell her so.

I was fed up and frightened by lawsuits. So I gave up personal essays for a while and wrote another novel. Set in 1969 and 1970, it began to morph into a lot of things. I wrote about my mom falling in real reciprocated love for the first time, at 93. Like most writers, what I think I am writing about often u-turns into what I need to write about, and I began adding in a new character, exploring a really important relationship in my life that had become troubled over the years. I had kept trying to fix her, to help her, but the more I did, the worse things got for both of us. I finally realized that it wasn’t my job to change anyone, let alone someone I loved, and that sometimes you just have to let people be. I meant part of the novel as a love letter to her, and when the novel came out, I said so on NPR—without mentioning names, of course.

The email came almost immediately and it was spikey with threats. She recognized herself, and so had a friend of hers. And she said she could prove it. She had, she said, already spoken to a lawyer, and she was going to sue for defamation and invasion of privacy. It didn’t matter that I took the blame for my persistence in trying to change her. “You’re dead to me,” she said flatly.

By now, I was used to talking to lawyers and I knew I had to contact mine. “It’s sticky business,” my lawyer said. “People can sue for anything they want, but no reputable lawyer will take on a case like this, at least not without considerable money, plus anything you said was only your opinion, and not fact, and you can’t sue for that. I’d just let it go. I can write a letter to her, but it might make things worse.”

“They already are worse,” I said.

“She won’t sue,” he assured me. And she hasn’t.

Why didn’t I learn my lesson with my first lawsuit? Because it’s a writer’s nature to keep digging into peoples’ lives, to be curious. And the truth is that whether I am writing about a character or myself or a living person, the story always comes from a deep place within. I’m not trying to hurt, expose or defame anyone. Instead, I’m trying to figure things out—to make sense of why I (or anyone else) couldn’t and wouldn’t leave an emotionally abusive boyfriend, why I (or anyone else) felt I had to rescue someone who not only resented my help, but was furious that I thought she needed any. It has nothing to do with revenge, and everything to do with revelation, with connecting to some reader who might say, gratefully, “Oh, thank you for writing about this scary/terrifying/wrenching topic, because Me, too. Me, too. Me, too.”

Image Credit: Public Domain Photos.

The Millions' future depends on your support. Become a member today!




Share this article

More from the Millions

5 Responses to “Life, Literature, and Litigation”

  1. Kathleen DeCosmo
    at 1:18 pm on August 9, 2017

    Wow Caroline!

    So sorry you have been hurt so many times!

    Sharing all this had to be painful for you but I know this post can help many handle their writings using your experiences.

    Best,

    Kathleen DeCosmo

  2. Kelly Lynn Thomas
    at 4:32 pm on August 9, 2017

    Great essay! I’ve wondered about hurting people close to me in my writing, but I’ve never really thought about being sued. I think you really hit the nail on the head at the end, though–we have to write about these difficult things to figure them out and connect with readers who’ve experienced the same thing.

  3. Kate
    at 6:10 pm on August 9, 2017

    A writer can only write from their own knowledge and research. If our characters resemble a person in real life, it is because we must craft their personality from those of persons we have met. Facebook and other social media connections give us a new group to select from. My own characters are composites of people whom I have either met or corresponded with at some time in my life. In most cases, each individual consists of personality traits of three or four individuals. Some friends claim to recognize themselves, while others claim to be unaware of which character most closely represents them. I select names by opening a phone book and blindly pointing to a last name. Another page gives me the corresponding first name. Thus, I may have a Spanish sounding surname that is paired with a Russian given name or vice versa. I have a list of physical characteristics, such as height, weight, hair length and color, natural or tinted, glasses, eyes, or whatever else might form a human body and be readily noticed by an observer. So far, I have not been sued, so I guess I should perfect my marketing skills and obtain a larger audience.

  4. DL
    at 2:32 pm on August 11, 2017

    Interesting essay!

    I will say, I think your ex’s sister probably engaged you like a friend – maybe thinking she was helping you with an essay. She probably didn’t envision it would be a steady, reusable source of repeatable merchandising for you. I think she was well within her rights to be perturbed that you didn’t offer to compensate her for content in the same way you were asking for. If you weren’t interested in optioning your content for free, then you shouldn’t be so righteous and shocked that someone else, especially someone not in the business, felt taken advantage of when it turned out her story and “extra details” meant far more to you in the material world than you let on.

  5. Caroline
    at 8:41 pm on August 12, 2017

    Dear DL, thank you for your comment but I never said I actually used her extra details. She offered them, but I didn’t. I wrote my perception of that terrible summer. She had already read he essay in the anthology, the essay reprinted in New York Magazine, and watched my two appearances on the Today Show. And interestingly enough, I never mentioned in this piece that she wanted money when she was threatening to sue. You did.

    Also, I don’t look at my work as merchandising. I look at it as art. And according to the Author’s Guild attorney, she was not within her rights to ask for compensation for a story that was distinctly mine. And you presume too much when you think the material world means more to me.

    Writers need to be able to tell their stories through their own lenses.

Post a Response

Comments with unrelated links will be deleted. If you'd like to reach our readers, consider buying an advertisement instead.

Anonymous and pseudonymous comments that do not add to the conversation will be deleted at our discretion.

NEW COMMENTING RULE: Comments may be held for moderation and/or deleted. Whitelisted commenters will see their comments appear immediately. Don't be a jerk. We reserve the right to delete your comment or revoke commenting privileges for any reason we want.