How to Avoid Lawsuits for the Invasion of Privacy as a Novelist
You might be surprised to learn that novelists can be sued for the invasion of privacy despite the disclaimer found at the beginning of almost any novel: “This is a work of fiction. Any resemblance between the characters and real persons, living or dead, is coincidental and is not intended by the author.” What is less known, however, is that this disclaimer does not fully protect authors from lawsuits concerning the invasion of privacy, as Kathryn Stockett, the author of The Help, has discovered. Ms. Stockett has been sued by Abelene Cooper, the African-American housekeeper who works for Ms. Stockett’s brother. Abelene Cooper alleges that Stockett based the character of Aibileen Cooper off of her, and has filed a lawsuit for $75,000. Fictional Aibileen does admittedly bear a number of similarities with the real-life Abelene Cooper—both have a gold tooth and wear a gold cross, both use a wig in the summer to combat the humidity, both have lost a son in his late teens or early twenties, both work as nannies and have raised a large number of white children, both of their first names are pronounced the same way and both woman teach children in their care to use the same nickname, “Aib-ee.” By that same token, the women are not identical—among other differences, Aibileen has only one son, while Abelene has had at least two. The real-life Abelene also appears to lack the literary aspirations of the fictional Aibileen.
In order to prove that a violation of the defendant’s privacy has occurred, the defendant’s lawyer must demonstrate, first, the existence of a relationship between the plaintiff and defendant and, secondly, that the character is recognizably based off of someone else. Although Abelene Cooper’s lawsuit was dismissed due to a technicality—the one-year statute of limitations has passed—rather than on its merits, the lawsuit does raise troubling questions for present and future novelists, particularly as many novelists use their own experiences as reference points when writing a book. Fortunately, there is no reason for novelists to despair, so long as they are careful about how their construct their characters.
In the case of Abelene and Aibileen, some of the similarities can be explained by common experiences. Common experiences typically arise among people who share a number of different lifestyle factors (hometown, occupation, ect.) or live through the same public event, such as the election of President Obama or 9/11. It isn’t unusual for nannies to raise large numbers of children, or, presumably, for people to combat the humidity with a wig in the South. Many people have also lost children of every age and in multiple different ways. While Abelene and Aibileen may have both lost a son, the manner of their deaths was quite different (the former from leukemia, while the latter was crushed by a truck). The names and physical descriptions are quite similar, but insufficient to establish that an invasion of privacy has occurred.
Below are a few easy steps that an author would be well advised to take so as to ensure that the publication of her book does not result in a lawsuit for the invasion of privacy.
1. Make sure that the person and the character have radically different names.
2. Make sure that your character and the reference person have different physical appearances. If your reference person is short, make your character tall. Give your character a different hair and eye color, or even, if possible, make your character the opposite gender.
3. Change very obvious characteristics and background elements. If your reference person is poor, make your character wealthy. If your reference person has three siblings, make your character an only child. Give your character a different profession. Change as much as you can without altering whatever drew you to want to use this person in your novel in the first place.
There is no reason that authors should not be able to use their personal experiences in their stories, or any reason that they should not be to base certain aspects of their characters off of people that they know, so long as they are careful and refrain from too obviously basing a character off of someone who would not welcome the intrusion.