Using a real person in an historical novel, and appropriate disclaimer

[NeuroFizz]

Hi, All

I've used a real person, by name, in my historical (a major character, not the protagonist). Is this a good idea, or should I change the name slightly? Either way, a disclaimer is necessary. Below is mine, written as a Foreward. I didn't include full references of my source books here so I wouldn't be accused of spamming. Is this the way to do it? Comments would be appreciated.

Foreward



Phoenix, while fictitious, follows major events in the real life of one of its characters, John William (Jack) Swilling. Although I lived in the Phoenix Valley for twenty-four years, the name Jack Swilling did not register with me until I initiated research for Phoenix. This surprised me, after the fact, since Swilling was known as the “Father of Phoenix” to many.

The Swilling Irrigating and Canal Company reconnected the elaborate network of ancient Hohokam canals to the Salt River in the late 1860’s and re-opened the Phoenix Valley to agriculture. Swilling was a successful businessman, and benefactor to many, but he was addicted to morphine and abused alcohol, to deal with injuries suffered in his raucous past. This is the enigma called Swilling—a good but imperfect man, as documented in two interesting references, Tragic Jack by XXXXXX (full reference) and Catch the Stage to Phoenix by XXXXXXXXX (full reference).

In Phoenix, I have remained true to some of the facts and lore surrounding Swilling’s life and death. Also, the Arizona Territory towns, cities and mines in the story were all real. But that’s as far as it goes. All of the other characters are products of my imagination. Similarly, my portrayal of Swilling’s personality is a fictitious extrapolation from the bedrock of documentation presented in the cited references.

This book is dedicated to the memory of Jack Swilling, Father of Phoenix.

[NeuroFizz]

Okay, so the question seems stupid, but I'm not talking about famous historical figures. I'm talking about "regular" people who may have living relatives with good lawyers.

[Garpy]

Hmmm, I think that's a good question. I too have real people (mostly dead now I think) in my novel...namely President Truman and his war cabinet. I wonder what the legal position is on that?

[aruna]

Hmmm, I think that's a good question. I too have real people (mostly dead now I think) in my novel...namely President Truman and his war cabinet. I wonder what the legal position is on that?

Same here. I have two real life historical chacters - not regular people, but ones that made history in a small country. I have them interacting with my fictitious characters in some cases. Both are dead. I've been told it's OK.

[Diviner]

Okay, so the question seems stupid, but I'm not talking about famous historical figures. I'm talking about "regular" people who may have living relatives with good lawyers.

I'm no lawyer and inexperienced to boot, but I would keep the dedication and the apologia, put the apologia in the back, and change the character's name. I would say with emphasis that the story is roughly based on the life of Swilling with changes to suit the needs of fiction.

I agonize over changes that I've made to characters who died 400 years ago, so I know the challenge of recreating from bits and pieces of written history. Even though people don't read historical fiction as biography, they tend to think it is true if it is well written, so it might be better if such a main character has a different name.

[Jamesaritchie]

I regurlarly use real historical characters in historical fiction, and never use a disclaimer. If the publisher wants one, they can put it in, but so far, no pubisher has deemed a disclaimer necessary.

With characters who are not famous, my publishers have always said not to worry about it. They're long dead and fair game. With character who are historically famous, publishers have said to set the novel during years or months when the character really could have slipped away from regular life and done this. In other words, pretend it really did happen just this way.

In one novel, for example, Andrew Jackson plays a role, and I carefully set the action during a period in his life when his whereabouts and activities were unknown for a couple of months.

But no disclaimer.

With one historical character who wasn't famopus, I even put in an author's note stating that this character was a real person, and if anyone knew more about him, including his family, I'd like to hear from them.

I did hear from the family, and learned a great deal more about the man in the process. After well over 100 years, the family still has letters this man wrote to them.

[Richard]

You can't libel the dead - that's a priviledge reserved for the living and their lawyers. However, there are ways that their family can cause trouble, depending on what you say - for instance, you could expect a stack of legal papers through the post if you did a biopic on Tolkein as an alcoholic paedophile who stole everything he wrote from the guy at the post office.

[Jaws]

Richard, IAAL, and I'm afraid you're incorrect. Not only can one infringe the privacy and publicity rights of dead people, sometimes one can libel the dead too—especially if the particular statement could somehow be imputed to the character of living descendants. Further, there's also the issue of business disparagement raised by the original fact pattern; if there is a business, or even just an owner of goodwill from a business, that business may (under some circumstances) have a cause of action for business disparagement (the commercial equivalent of libel). None of these are necessarily good cases, but they do happen.

Diviner, I'm afraid that won't do any good. All that is necessary is that someone could identify the subject of the defamatory material, not a name. For example, if I say "The Chief Executive Officer of the United States of America is a because [insert false assertions of fact here]," anyone who looks at the date on this post can infer exactly to whom it refers. Although that individual would also have to overcome the problems with being a public figure, note that it gets completely around the proposed "solution". There is a long literary tradition of the [i]roman a clef (sorry, this stupid system makes it hard to put in accent marks) that support libel actions.

[Jamesaritchie]

Richard, IAAL, and I'm afraid you're incorrect. Not only can one infringe the privacy and publicity rights of dead people, sometimes one can libel the dead too—especially if the particular statement could somehow be imputed to the character of living descendants. Further, there's also the issue of business disparagement raised by the original fact pattern; if there is a business, or even just an owner of goodwill from a business, that business may (under some circumstances) have a cause of action for business disparagement (the commercial equivalent of libel). None of these are necessarily good cases, but they do happen.

Diviner, I'm afraid that won't do any good. All that is necessary is that someone could identify the subject of the defamatory material, not a name. For example, if I say "The Chief Executive Officer of the United States of America is a because [insert false assertions of fact here]," anyone who looks at the date on this post can infer exactly to whom it refers. Although that individual would also have to overcome the problems with being a public figure, note that it gets completely around the proposed "solution". There is a long literary tradition of the [i]roman a clef (sorry, this stupid system makes it hard to put in accent marks) that support libel actions.

For the most part, it's true, you can't libel the dead. You can get caught if the dead person is a trademark, but that's about it. Using a real person in historical fiction is simply not going to get anyone into legal trouble. If it could, pubishers would have to pull about a million books off the shelves.

For me, it's pretty simple. If the pubisher's lawyers say it's no problem, then it's no problem, and they've always told me it's no problem in any way.

[zornhau]

As a Forward, that sucks. As a Afterword, it would be quite interesting.

Can't answer for the legalities. Morally, historical characters are still real people, so I'd feel squeamish if I felt I was being unfair.

[britwrit]

If the first two books you refered to didn't raise the ire of the Swilling clan, I doubt if your novel would either. Besides, if the historical record shows him as a morphine-addicted alcoholic, there's not much more you could do to besmirsch his reputation.

[NeuroFizz]

Thanks, everyone. This has been very useful. And, Z, thanks for the bluntness. I hadn't thought about the impact of placement for a statement like that.

I don't want to change the character's name. Aside from all of the practical reasons related to research and accuracy, can you think of a better name for a character who abuses alcohol than Swilling? In an earlier e-mail program, the word swilling even triggered the "potentially offensive language" warning, if you can believe that. Do any of you wordsmiths out there know of another meaning for swilling that might be offensive?

Again, thanks for the great information, advice and insights.

Cheers, Rich