Can you be sued for writing memoirs

Little Red Barn · May 9, 2007

Sakamonda said:
I don't know of any attorney who will take a libel case on a contingency basis. Libel is insanely difficult to prove, and the burden of proof is on the accuser in libel cases, not the accused. In libel cases, you not only have to prove that the author maliciously fabricated lies about the accused (not easy to prove if the author insists they are true statements), you have to prove that the accuser suffered irreparable emotional and financial harm (i.e., losing a job or business income over the supposedly libelous statements), as well as permanent damage to one's public reputation. Tall orders to prove in court, all. This is why most libel/slander cases are brought only by people who are already quite wealthy and of some public standing.

Since none of the people I discuss in my memoir are wealthy or of public standing (nor would they be able to prove my statements are not the truth), I'm not worried about being sued for libel/slander. I will of course follow my publisher's legal advice on how to protect against potential suits (even frivolous "nuisance" suits) when/if offered a publishing contract. But the fact is, as Blair says, for someone to bring a suit against you, they a) must have a serious bone to pick and b) a lot of money at their disposal to pay lawyers, possibly for years, while the suit drags on.

Congrats Sakamonda,
I too write memoir. I do know that anyone can sue for anything. And I especially know a lot of attorneys will take on the most fruitless of cases and causes.

I think you want to protect yourself very well as said above. And true I could invite 3 people over for dinner, they get sick off my meatloaf and two days later will have three entirely different memories and stories.

pollykahl · May 9, 2007

John, I thought so, and appreciate your explanation. I suspected as much because I too have been following the Augusten case and have read that the family bringing suit is not wealthy. It seemed they would only be able to pursue litigation if their representatives were being paid on a contingency basis. And of course, the attorneys would only take on the case if they thought they had a good chance of winning and collecting their fees.

Thanks for your comments too, Blair. I have never actually approached an agent or publisher about my memoir, so my level of persistence is yet to be seen! My book has some interesting elements that I believe make it unique and interesting beyond the usual abuse-addictions-recovery memoirs (not to insult them by any means, it's just that my experiences are unique on several fronts, and I also believe I have a good solid platform.) I was almost done with it when I found this site, through John's site, through Augusten's site, since I'm a big AB fan and check his blog regularly. I am now making some revisions based on what I have learned here in my brief time on this site. From what I have read it is best to have memoirs completed before approaching anyone about any kind of representation. I want it to be the absolute best that it can be because I have targeted specific agents I am interested in working with, and I am afraid that once I am rejected by an agent I won't be allowed to re-submit. I am also reluctant to publicly post my writing online so am hoping it is permissible to approach other AW members to see if they would be willing to offer private critiques. Once I do that and am ready to approach my targeted agent(s), we'll see what happens. This is my full time job until it is done.

And I personally am not worried about litigation, although it's such an important issue in the world of memoirs that I do keep up with what's happening in the field. I have reams of journals, letters, interview notes, and other documentation for everything, that I have compiled over the past twenty five years until the time was right for me to do this project. I also have lots of witnesses who are supportive of me and my work. Of course, one can never be too careful and you never know what some people will do! But I feel I am being as safe and responsible as I can be, not to mention humane, for all concerned, under the circumstances.

Sakamonda · May 9, 2007

thanks

Thanks again John for clarifying on this issue. I find it very disheartening that some lawyers will take on a libel case on contingency. I do sincerely hope, for both my sake and other authors', that St. Martins/Augusten Burroughs prevails in this case. If the other side were to win (God forbid), it would have very sinister consequences for all authors and journalists and the integrity of their work.

I will continue to be vigilant in my own memoir, and will of course follow any publisher's legal department's directives on how to protect myself and them. But above all else, I value the truth. I think any author of a memoir should, too----especially emotional truth.

Blair Tindall · May 10, 2007

I haven't heard of anyone hiring a lawyer on a contingency basis for libel. In general, it seems that's something most publishers could take care of if they believe a book includes libelous issues -- after all, they will suffer from a lawsuit as well, so the investment of a legal vetting when the book is done may prove worthwhile.

Also, the Argo Insurance brokerage in Walnut Creek, Calif., has an agent who specializes in libel insurance policies.

Susan B · May 11, 2007

Blair Tindall said:
An editor once made a good point to me about writing angrily in a memoir. If a personal scene exists as a vendetta without advancing the real point of the story, it's not compelling reading, and you're going to lose your audience. However, if the author can expose his/her own foibles and weaknesses in the course of simply telling what happened, the results can be poignant and empathetic.

Someone on this thread remarked that using real names makes for a real story. It is, after all, your experience. Going too far afield can get Oprah very, very mad, as we know. One alternative is publishing the pseudonyms (not the real names) on the copyright page, and also keeping their use to a minimum.

.

Hello Blair, and welcome.

Have to admit I got a little jolt reading your name in these posts, because that's also my first name. (Susan, the name I've been using here, is my middle name.)

Another coincidence, I've also written a music memoir (pretty far from the classical world, though!) It's currently being shopped around by my agent. I'd read the reviews of your book, meant to read it, and now I will. Also liked your website and some of your articles (read the one on beta-blockers with interest.)

I agree with the points you make; I may have been one of the people who argued for using real names, at least real first names. But I've been pretty careful not to say anything critical, either of personal friends or the handful of people appearing in my book who are fairly well known in my little corner of the folk/ethnic music world.

Sometimes I worry that I may have sidestepped some issues. But unlike your book (which I gather combines investigative journalism with memoir) mine really is much more about a personal journey--opening up to music in midlife, discovering another culture, working closely with a mentor.

Again, welcome to AW!

Susan B.

Anthony Ravenscroft · May 12, 2007

Polly & Sak, you're clearly lovely people, & your posts are far more literate than most of the queries I review.

You're merely, in my experience, incorrect.

I often hear/read, "Oh, but I'm just telling what really happened!" I call this the conduit theory of writing, & it infects errant journalists & more than a few memoirists.

It's nonsense, you see. The whole point of having a scrivener is to choose what is told, how it is told, in what order it is told. For instance, two facts widely separated are drastically different from the same two facts back-to-back, & denying it "because that's how I believe" is silly at worst, unfounded opinion at best. Writing is a one-dimensional form -- sure, it "unpacks" in the reader's head, but it's still got to be packed in the first place, & the order is vital as to the impressions left when it unpacks. A writer who denies creating those impressions is either a poor liar or a fool.

It's also my prejudice that most errant memoirists don't have a story worth telling. That's why they prefer to trot out childhood grievances as though this is a substitute for storytelling, for actually having an interesting plot -- & since even "how to" books can be said to have a plot, I see no good reason to except memoir. "Before you write your life story, you ought to have a life." And if the bulk of the nonplot is grievances, then these clearly must be exaggerated to historical levels of Significance, or there's nothing to propel the reader forward except (a) voyeuristic interest in witnessing scenes of abuse, &/or (b) shared misery.

Finally, look at how you're writing on this thread. So much has been statements of unfounded opinion as though it's obvious, it's carved in stone, & everyone agrees with you. If that were true, your words would have little value -- which, if thus true, suggests you've got nothing to say worth publishing. Don't fear making clear that it's your opinion, experience, observation, or whatever, & maybe then offering some sort of bolstering; it strengthens the prejudices, & there's nothing wrong with well-stated prejudice because it brings the reader into the recounting.

pollykahl · May 12, 2007

Anthony, it would be helpful if you would show which statements or quotes you are referring to. Sakamonda and I have said a variety of different things and there is no way of knowing which statements by which poster you are referring to. Without these clarifications the statements in your post are merely generalizations.

Yes, it does sound like you have a prejudice against the memoir genre. It's not my job to educate you about it or convince you of its many virtues. But I would like to clarify that in my case, and from what I have read in Sakamondo's case, and the cases of other memoirists here on AW, as well as the many, many memoirs that have been successful commercially, the genre is not about dumping grievances. It is about surviving, overcoming, and transcending. Many people find these books not only helpful, but inspirational.

To quote Anne Frank, "Despite everything, I believe that people are really good at heart."

Penny Graham · May 12, 2007

Sakamonda said:
I am reading this thread with great interest, as I am also a memoirist who has written a very shocking and graphic memoir dealing with growing up in a family with severe mental illness issues. This memoir is currently under review at several large houses (including Augusten Burroughs' publisher St. Martins). I know for a fact that I will likely lose friends and alienate family over this memoir, but that is something I'm willing to live with in order to tell what I believe is an important story that is designed to help people and families dealing with severe mental illness.

As far as how I'm handling "changing names", et cetera, in my current manuscript, some people's (not my family members') names have been changed; others' have not (although in many cases I use first names only), and I have not changed any locations. My agent advised me that I should write as straightforward a manuscript as possible, only changing names in this version in cases where I thought it unavoidable or people specifically asked me to do so. In the event I am offered a contract, my agent advised me that I would likely have a sit-down with the publisher's legal department who would advise me line-by-line on anything I'd need to do to minimize lawsuit risk, et cetera, and I plan to follow that advice as it is given. I am also following the Burroughs' case quite closely; I am very glad St. Martins is working hard to defend the case.

As far as my own process is concerned, a few of my family members started threatening to sue when I even told them I had the _idea_ to write this book. They told me they would go to court and tell everyone I am lying, even though I have the capacity to prove my story. (This is due to some of my family members' being so afraid of the stigma of mental illness they would rather lie on the stand than admit to being ill). I am frankly not worried about these threats, because I know they are nothing more than threats. None of my family members who are even now threatening to sue have the gumption, stamina, or financial ability to follow through on those threats, so I am frankly not worried about it. They also would not be able to prove I'm not telling the truth.

As far as some of the more tangential people in the book, I am frankly not worried about them, either. The thing is, anybody can threated to sue or even file a suit, but having the stamina (and vast financial resources) to actually mount a major lawsuit against a major media outlet is something else altogether. We authors thankfully have the First Amendment on our side---provided we aren't outright fabricating malicious statements about people. Since I'm not doing that, I've decided that losing a few friends and alienating a few family members a worthy price to pay for telling a story that I believe has the potential to benefit many millions of people suffering from mental illness. I don't have that great of a relationship with my family anyway, so it's not even that much of a loss.

John, I look forward to reading your book when it comes out.

Hey Sakamonda,
I appreciate everyone's input in this question, and for all reading this, if you google or search the actual question of this thread, it comes up immediately, so be aware all our comments are out there in the world for anyone wondering about that question. Someone advised me to pull the thread, for legal reasons, and it was probably good advice. I considered it, but have changed my mind because it is an important question and worthy of all these opinions, experience, both within the publishing companies and their perspectives, and outside of them from the writers' standpoints. As I have stated many times in this thread, there is nothing in my book that happened or required a revenge feeling. All the way to the end this person was awesome. As John Robison has stated, it is not the libel I worry about, it is the invasion of privacy issue and the book would not be published because I wanted to invade his privacy. I would do everything I can to protect his privacy. I could write it so that he might be the only one to recognize it, but that would require lying which I won't do, and if he is the only one who did recognize it, even after changing enough names descriptions and locations, he still has the foundation for a lawsuit. To make up a completely fabricated example, let's say he was, in the 70's, dealing drugs. Let's say it has been this many years, he no longer does that, but his family or wife never knew during that time. Let's say by publishing my book and mentioning that his wife and family had a meltdown. Now again, this is so far removed from what actually happened this would never be a cue that it was about him. But if he had, say, and someone recognizes the events here and there and says, hey, I know that guy, but I never dreamed he dealt drugs. What if he had a child who read the book and said "Daddy, you never told me, how can you tell me not to when you did," And wife says, "so that is what really happened. You lied to me back then!" Now this is NOT what the book is about, but this might be something he preferred not to ever get out, and this is what I am trying to avoid, and still tell a story that could help people. Thanks for your input, and please let us all know how your own story goes with the publishing.

Penny Graham · May 12, 2007

Southernwriter,
As they said in the Titanic, " You've got my attention Rose." It seems like we are both treading water in shark infested areas that may never take a nip at us. You are the closest to getting the drift of what this is about. You said Paranormal romance, and you do have my attention. I may need to PM you so I can keep legal issue details out of the public here, but in a nutshell, I am sorry about your friend, reallly, and that goes to show what having someone's husband or wife find out something they never knew. As far as mine goes, of course he knows the whole story in living color detail. He too has a great respect for this guy, knows how I came out of it, knows how what I learned changed his own life for the better, and gave him a better understanding of this world as a result of realizing there are other worlds and dimensions than this one. So, yeah, he does know and has been the one insisting it should be published, not to get melodramatic, but for "the betterment of mankind". (I know, talk about egocentric about your own book, huh, but really this isn't about a book, it is about an event which I fear I can never share. Trying to do the right thing vs....? And no this was no Mary Sue, at all, in fact, completely the opposite. Could I call it fiction? Sure, but if I did, there are better, scarier, more elaborate fictions...sometimes if it really happened, it is profound, scary and people would say "God, I hope I never go through that." But if you say it didn't happen, they will say, " I could have made up something better than that." And it would be true. As for editing, I am at least going to start doing that and disguising descriptions as I go, also not mentioning any city or state. Trying to cut, yes, because it is 1500 pages double spaced, if you figure 250 words a page, so what is that...without a calculator about 375,000 words. Yes, must be whittled down and maybe I will be a better writer in the end as well. Thanks for jumping in here, and I may be pming you soon, if that is okay with you.

Penny Graham · May 12, 2007

John, this is so true it is disheartening. No one wants to hurt anyone, everyone has to be careful, and wants to be, but the song must remain the same or there is no point in doing it. You have so much wisdom, sense, logic, caution you should start your own memoir advice column. Looking forward to your book and your brother's outcome in the suit.

Penny Graham · May 12, 2007

Ritergal said:
Penny,

Let's suppose that in 1970 I belonged to the Merry Order of Mothers (MOM). By now, in 2007, I've moved so far beyond the MOM mode in my thinking that I may avoid mentioning this fact to people who didn't know me back then. But the fact is, I did belong, and if I've said or done anything to lead people since then to believe I didn't, I have not been truthful in my own life.

Building on that background, let's say that you also belonged to MOM in 1970. So did lots of other people, some more public about their membership than others, but nobody took oaths of secrecy.

I find it reasonable to expect that people I knew in MOM would mention the connection to others if it ever arose in a relevant context. "Oh, sure -- I knew her. we were in MOM together back in The Day."

The only way to escape the past completely is to go into a witness protection program, and even that isn't foolproof.

If the events you allude to were perpetuated for the purpose of good, and were genuinely helpful and uplifting, then this person you mention was acting from a center of love. His purpose was to help, to uplift and teach. Perhaps his own understanding has continued to evolve, but if he was operating from a center of love, it's unlikely that decades down the road, he'd do something unloving like sue someone for bringing up helpful things he did in the past. More likely he would feel gratified that you are still feeling grateful and sharing the helpful information still further -- beyond the bounds of the small circle he was able to reach.

The risk you face if you dilute your message by fictionalizing it, or not publishing it at all, is that those who need to hear it will be deprived. Which is the greater risk? Only you can answer that!

My call: Say whatever sort of prayer works for you, and follow your heart in this matter. Go to a quiet, private spot, get comfortable, and have a "virtual" conversation with this man. Ask him what he wants you to do about this matter. Ask for a message to make it clear, maybe a dream. This isn't a decision that can be made with reason and logic, because the message of your memoir obviously goes beyond the bounds of the physical and logic. Use the resources you have learned to make it.

Ritergal, please see below for answer

Penny Graham · May 12, 2007

Penny Graham said:
We are all following that case, I am sure. Yours sounds like a great book I would be very interested to read. Keep us all posted.

Ritergal,
I love your take on it...your call. That is about all I can do at this point. And it is what I've been trying to do, but maybe I should be focusing all my energy on doing just that. Loved your example...MOM...sounds like the militia of Montana, one of my favorite groups. I wish I could tell you all the details so you would know why the living breathing person I am afraid of hurting is no longer connected to the one who helped me, even though they were both the same flesh and blood body. So your advice makes complete sense to me.

Penny Graham · May 12, 2007

Anthony Ravenscroft said:
Polly & Sak, you're clearly lovely people, & your posts are far more literate than most of the queries I review.

You're merely, in my experience, incorrect.

I often hear/read, "Oh, but I'm just telling what really happened!" I call this the conduit theory of writing, & it infects errant journalists & more than a few memoirists.

It's nonsense, you see. The whole point of having a scrivener is to choose what is told, how it is told, in what order it is told. For instance, two facts widely separated are drastically different from the same two facts back-to-back, & denying it "because that's how I believe" is silly at worst, unfounded opinion at best. Writing is a one-dimensional form -- sure, it "unpacks" in the reader's head, but it's still got to be packed in the first place, & the order is vital as to the impressions left when it unpacks. A writer who denies creating those impressions is either a poor liar or a fool.

It's also my prejudice that most errant memoirists don't have a story worth telling. That's why they prefer to trot out childhood grievances as though this is a substitute for storytelling, for actually having an interesting plot -- & since even "how to" books can be said to have a plot, I see no good reason to except memoir. "Before you write your life story, you ought to have a life." And if the bulk of the nonplot is grievances, then these clearly must be exaggerated to historical levels of Significance, or there's nothing to propel the reader forward except (a) voyeuristic interest in witnessing scenes of abuse, &/or (b) shared misery.

Finally, look at how you're writing on this thread. So much has been statements of unfounded opinion as though it's obvious, it's carved in stone, & everyone agrees with you. If that were true, your words would have little value -- which, if thus true, suggests you've got nothing to say worth publishing. Don't fear making clear that it's your opinion, experience, observation, or whatever, & maybe then offering some sort of bolstering; it strengthens the prejudices, & there's nothing wrong with well-stated prejudice because it brings the reader into the recounting.

Anthony,
Are you a publisher? You seem like you are right in the thick of it and know what you are talking about. If so, maybe you got some bad ones to give you that opinion of memoirs.

Penny Graham · May 12, 2007

Susan B said:
Hello Blair, and welcome.

Have to admit I got a little jolt reading your name in these posts, because that's also my first name. (Susan, the name I've been using here, is my middle name.)

Another coincidence, I've also written a music memoir (pretty far from the classical world, though!) It's currently being shopped around by my agent. I'd read the reviews of your book, meant to read it, and now I will. Also liked your website and some of your articles (read the one on beta-blockers with interest.)

I agree with the points you make; I may have been one of the people who argued for using real names, at least real first names. But I've been pretty careful not to say anything critical, either of personal friends or the handful of people appearing in my book who are fairly well known in my little corner of the folk/ethnic music world.

Sometimes I worry that I may have sidestepped some issues. But unlike your book (which I gather combines investigative journalism with memoir) mine really is much more about a personal journey--opening up to music in midlife, discovering another culture, working closely with a mentor.

Again, welcome to AW!

Susan B.

Susan B,
Are you using lyrics in your book, and did you have to go through hades to get permissions? Thanks

Penny Graham · May 12, 2007

Blair Tindall said:
Greetings, I'm a friend of John Robison's and new to the board. This is my first post, but on a subject of great interest. My first book, "Mozart in the Jungle" was a memoir peppered with many of the issues discussed here -- and I have insight not only from that, but also from the media law course I took as part of my journalism degree at Stanford in 2000. In addition, writing for the NY Times and other pubs has made me even more vigilant.

I think it's important to realize that lawsuits can be quite expensive for both sides. Someone instigating one must really have a bone to pick -- because many books are covered by their publisher's libel insurance (which often does have a deductible which may be split by the author and publisher, by the way.) Some publishers have the manuscripts vetted by an attorney, who makes recommendations of changes and omissions.

An editor once made a good point to me about writing angrily in a memoir. If a personal scene exists as a vendetta without advancing the real point of the story, it's not compelling reading, and you're going to lose your audience. However, if the author can expose his/her own foibles and weaknesses in the course of simply telling what happened, the results can be poignant and empathetic.

Someone on this thread remarked that using real names makes for a real story. It is, after all, your experience. Going too far afield can get Oprah very, very mad, as we know. One alternative is publishing the pseudonyms (not the real names) on the copyright page, and also keeping their use to a minimum.

One interesting case is Nora Ephron's "Heartburn," which is officially fiction. It's worth googling what happened between her and her ex-husband, Carl Bernstein, in the aftermath of book and film.

Welcome Blair,
Glad you joined us! What a subject, huh? Everyone has been so helpful here and I wish I could go into detail about why I am so worried, but it seems like a couple people here did pick up on it and gave me some pretty good advice. Actually just about everybody did that, so well I just put the book up for a while. Thought the thread was dead, everyone had stopped adding to it, so I got busy doing something else, then today checked and Voila...how to answer everyone. It is quite a question, and the answers are different for everyone, depending on what our books are about. Thanks for jumping in.

Susan B · May 12, 2007

lyrics

Hi Penny,

Well, good to have something a little easier to discuss!

I wonder if there is a thread on this elsewhere. It sort of fits here, I guess, since it is another way you could get sued.

I started out using lyrics extensively. Then I read something online (I think it was perhaps on AW) that suggested this was something to avoid if possible, because of the difficulty getting permisssions.

I found it hard to believe--what about journalists, scholars? I was sure this must be wrong. But I checked around, including with an ethnomusicologist friend. He told me a horror story about including lyrics in his doctoral dissertation (hardly a commericial venture) without getting persmission. As a result, it can't be distributed as freely as most (like to other scholars doing research.)

It is much easier to get permission to quote from a published book than to use song lyrics. Usually a book publisher will simply give persmission, as long as sources are cited. But music publishers (BMI, ASCAP) have incredibly high licensing fees--for playing recorded songs live, on the radio, making recordings--or quoting lyrics. It's all the same.

So, quoting lyrics is considered the proverbial "can of worms" especially for an unproven writer seeking representation or publication. The publisher might not want to take it on, so you'd be lefting paying yourself.

So I rewrote what I'd done, trying to conform to what is thought to be "fair use": Keeping direct quotes to 2 lines or under, then paraphrasing to capture the meaning of the song. This actually worked out for me, because the lyrics are not in English, for the style of music I play and write about.

Song titles are ok, by the way. And some music is "public domain"--but much less than you'd think. A lot of "folk music" is actually published by someone.

Hope this helps.

Susan

pollykahl · May 12, 2007

"Song titles are ok, by the way. And some music is "public domain"--but much less than you'd think. A lot of "folk music" is actually published by someone."

I hope no one minds if I continue the new bent on this discussion, because it's actually quite interesting and helpful. Susan, do you know if up to a certain number of words in song lyrics are permissible? I am correlating this to music, where I think you are allowed to sample a certain number of seconds (like 6 seconds I think) before you are breaking the law. I am actually using some song titles for some of the chapters in my memoir, but in one case I would like to use two words from one of the lyrics. The song is Alice's Restaurant, the lyric is "You can get anything you want in Alice's Restaurant, excepting Alice," and I would like to name the chapter Excepting Alice. What do you think?

Susan B · May 12, 2007

fair use in lyrics

Polly,

Yes, I mentioned in my overly long post about this, but probably got lost!

Many people think fair use to be 2 lines or less of lyrics. You could probably google this and find a reference. But it has not been established legally, it's kind of a hunch or operational definition or something that's floating around out there.

The Arlo Guthrie song--well, that is so high profile it might be risky. Not the title, but quoting the line. I'd try to get permission, I think. And if you aren't quoting a lot of different songs, might not be that big a deal.

Good luck!

Susan

pollykahl · May 12, 2007

Thanks Susan, and yes, I did miss that bit about the two lines or less. I grew up in the Massachusetts Berkshires where the song events took place, and played many times at the church Alice lived with her husband and step children, and used to eat in her restaurant. This chapter relates to some of the events that happened in my life during that specific period of time. Arlo Guthrie probably has the rights to the song and we have friends in common so I can ask him. It's the only song I want to use parts of a lyric from, and in that case it's only the two words that I would use. My other chapters that use parts of songs only use the titles. And most chapters don't even use that. Thank goodness - I can't imagine having to track down permissions for oodles of song lyrics. What a hassle.

Thanks so much for sharing your knowledge here, it is appreciated. Everyone is terrif.

Susan B · May 13, 2007

To go back a few posts, I'm a little troubled that we've fallen into talking about memoir as though the focus is always on "airing grievances" or (a more neutral way of putting it) exploring personal trauma.

Much memoir does concern suffering, trauma, illness, family dysfunction. And naturally there is self-focus. But to criticise it for this--well, in some ways that may mean one doesn't really like the genre. Which is fine. We are all drawn to different things. I love mysteries, but have been been unable to "get" science fiction or fantasy. (I consider this a personal failing, by the way, and would love to be enlightened

There is also that whole category of memoir that has more to do with exploring a different world--travel, picking up some oddball passion at midlife, traveling across the country in a van (like one of the other posters on the boards).

Maybe it makes more sense to talk about the pitfalls of particular genres. And maintaining plot, narrative tension, etc is definitely one of our big challenges when we write memoir.

My thoughts, anyhow.

Susan

johnrobison · May 13, 2007

Susan, you make a good point. In my own story, I'd guess that "personal trauma" does not comprise any more than 5% of the book.

In most of my story, I had no concern at all about being sued. My concerns were about how my friends and acquaintances would feel, reading what I'd written.

There are posters who derided this concern when I expressed it before, and all I can really say to that is, "sell your book to a major publisher, show your friends what you write, and then make your decision."

When my book was an idea in my head and in my computer, none of my friends cared. It was all good fun. As soon as they read about it in the media, though, they took it more seriously. And I made small changes in recognition of that. But it was all a matter of having my friends feel good about how they are portrayted - not avoiding lawsuits.

I am not suggesting you make things up . . . I am simply recognizing that your friends no doubt remember certain events differently than you. At a long remove, there may be no way to know whose memories are more accurate, and there's nothing wrong (indeed, I think it's correct) to recognize others at times. As I have pointed out before, WE ALL caught the biggest fish in that pond long ago, and WE ALL remember it that way today. That is, unless we(you) suffer from depression, in which case, none of us caught anything.

Penny Graham · May 13, 2007

Susan B said:
Hi Penny,

Well, good to have something a little easier to discuss!

I wonder if there is a thread on this elsewhere. It sort of fits here, I guess, since it is another way you could get sued.

I started out using lyrics extensively. Then I read something online (I think it was perhaps on AW) that suggested this was something to avoid if possible, because of the difficulty getting permisssions.

I found it hard to believe--what about journalists, scholars? I was sure this must be wrong. But I checked around, including with an ethnomusicologist friend. He told me a horror story about including lyrics in his doctoral dissertation (hardly a commericial venture) without getting persmission. As a result, it can't be distributed as freely as most (like to other scholars doing research.)

It is much easier to get permission to quote from a published book than to use song lyrics. Usually a book publisher will simply give persmission, as long as sources are cited. But music publishers (BMI, ASCAP) have incredibly high licensing fees--for playing recorded songs live, on the radio, making recordings--or quoting lyrics. It's all the same.

So, quoting lyrics is considered the proverbial "can of worms" especially for an unproven writer seeking representation or publication. The publisher might not want to take it on, so you'd be lefting paying yourself.

So I rewrote what I'd done, trying to conform to what is thought to be "fair use": Keeping direct quotes to 2 lines or under, then paraphrasing to capture the meaning of the song. This actually worked out for me, because the lyrics are not in English, for the style of music I play and write about.

Song titles are ok, by the way. And some music is "public domain"--but much less than you'd think. A lot of "folk music" is actually published by someone.

Hope this helps.

Susan

Hi Susan,
I work closely with the music industry here in the Nashville area, and know what a hassle getting the lyrics will be. And to be fair, the music industry has taken such a blow from people downloading and/or sharing music that many artists and songwriters have taken serious losses on sales because of it. I think now more than ever they have become rabid about anyone using their material without paying. I spent a lot of time researching the use of lyrics, and the fair use laws, and sadly fair use mostly falls into certain non profit catagories, not books sold commercially. There also is no real rule of thumb for it. Each case is tried individually, so because music and lyrics were such an important part of the story I can't eliminate that the music was there and part of it. I will just have to interweave mentions of the songs into the story. Ugh, even more editing. Now for some of us new guys here on the site, there is our esteemed "JAWS" who is the expert on this subject, and if we all just look at all threads by Jaws we will find all he has to say on the subject. He insists that we can use some lyrics. I won't try to paraphrase, just look up his posts. He has stopped jumping in, I guess he is sick of answering that same question and even implied the moderator should put a sticky up on it. In spite of his assurances that we can do it I still am afraid to take that chance. I don't need to be worrying about two lawsuits.
Does anyone know if it came to a lawsuit if we can have a jury rather than one judge for this type of suit?

Susan B · May 13, 2007

Well said, John.

Seemingly innocuous things can still feel like a violation of privacy. This hit home for me in the last year when my brother wrote a little piece about a touching childhood encounter with our late father. This was just for family consumption, in an e-mail sent to my mother, my sister, and me.

On the face of it, the "exposure" was about my brother himself, since it involved one of those dumb minor transgressions even good kids sometimes indulge in, on the edge of adolescence.

My father, a wise and gentle man, with a wry sense of humor, did not mete out any kind of severe sanction when he got home. Managed to communicate he was sure it would never happen again, he was sure my brother knew how much he'd hurt my mother, he was sure he'd been punishing himself all afternoon, far beyond anything my father might do.

My father to a T.

Then, the punchline. In the essay, he has my father making a little crack that made light of the whole thing. Amusing, but it didn't ring true at all--to me, or my mother. Creative nonfiction, or a side of my father we didn't often see? My brother is the only witness to this, so who can say?

But I was surprised at how much the whole thing felt like a violation of family privacy, even before I got to the end. I felt a pang of jealousy at the reminder that my brother, the youngest and only boy, had enjoyed a special relationship with my father. It bothered me that he was mining our family experiences to sound clever. And if he'd taken liberties with the truth? (He admitted to changing a few details.)

My reaction, I knew, was irrational--especially as someone who actually has written a memoir

And I'd never tell my brother not to publish this. (My mother, on the other hand, told me she'd insist he not use my father's real name. So maybe she'd want my brother to use a pseudonym?)

So this was a real learning experience for me.

Susan

pollykahl · May 13, 2007

"There is also that whole category of memoir that has more to do with exploring a different world"

Great point Susan. When I "defended" (for lack of a better word. and I call myself a writer?) the genre of memoir above I was defending the kind of memoir I felt was being attacked or misunderstood. But if we looked at the total number of memoirs that have been published, the percentage that would go into the Self-Help/Recovery category would probably only comprise a small number of the total published.

But I still maintain that it would only be a teeny tiny number of that small percentage of recovery memoirs that would go into the "venting grievances/only bitchin' and moanin'" category. Even if they weren't weeded out by editors, agents or publishers, the public would probably not buy them.

johnrobison · May 13, 2007

If you want to see an example of the acceptable use of lyrics in a modern memoir, read Rob Sheffield's book:

http://www.amazon.com/dp/1400083028/?tag=absolutewritedm-20

That particular book was edited by the same crew at Crown that did my book. The significance of that is simply that I know them to be a very thorough, careful, and professional group. And the uses of lyrics were vetted by Random House's legal team - one of the best in the business.

And to answer an earlier post, the chapter title "Excepting Alice" would be perfectly fine. But in general, you have to be careful with lyrics, limiting yourself to a few words, or else license them. And that gets expensive.

Here are some sample uses of lyrics in writing that my own experience with legal review suggests are OK:

Peter stepped up to the mike as the band started playing. "This is rock'n'roll, people! Nineteen seventy six!"

- or -

Michael sang that song over and over, until I was so sick of it I could not speak. "You can get anything you want . . ."

I'm not a lawyer, so I may not say this exactly right. But my understanding is that you can use a few words to render your phrase recognizable as part of a particulr song, and no more. Once you start to use whole lines and more, you have to license them. The number of words you can use depends upon their "recognition factor," if you will. You may also use disparate passages together to achieve this with fewer words. For example:

When I heard, "It's just a kiss away," I was instantly transported back thirty five years, to that day I watched the Stones hammer the opening chords of Gimme Shelter on the stage at Altamont.

Now, in that example, "it's just a kiss away" appears in several songs and that alone does not identify one single song, but the subsequent use of Gimme Shelter identifies it positively. And that's an acceptable use, too. Using ten more words before or after "it's just a kiss away" would have identified the song as Gimme Shelter, but such a large number of words would not be acceptable without licensing the lyrics.

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