Writing a Memoir? Here are some tips to avoid a lawsuit.

Photo by  Marina Gra  /  CC BY 4.0

Memoirs are personal accounts of real stories involving real people. It’s this realness that engages readers, but by using real people and places authors run some risk of being sued. These "real people" can, for instance, sue for defamation, or invasion of the Right of Privacy or Publicity. To mitigate this risk, the author should alter as much about the real people and places as possible, or get consent from each person mentioned in the story.

What legal issues are involved?

Generally, there are three potential issues when a author uses real people or places: Defamation, Right of Publicity, and the Right of Privacy. An essential element of all three causes of action is that the plaintiff must be “identifiable.” Identifiable means that the memoir must have sufficient detail such that the finder of fact can identify a particular plaintiff. It therefore follows that if you are unable to identify a particular person from the memoir, the plaintiff has no claim.

So, how do you prevent someone from being identified?

To prevent someone from being identified you must fictionalize details about each character in the memoir. There is no magic formula, but you can think of it as a spectrum. On one end is high risk, where you change nothing about the characters. On the other end is low risk, where you change nearly everything about the character.

Ideally you want to fall near the low risk end, but still maintain character traits which are essential to the story. Simply changing the names of the people involved is not enough. You should also change the location, the name of important places, and age or gender of the subjects.

What about consent?

Another way to mitigate risk is to get consent to use a person’s name or likeness in the memoir. Consent is a defense, but getting consent of each and every person in the memoir can be challenging, especially if you are writing the memoir months or years after the events took place. Getting consent is the ideal way to lower your risk, and having a standard consent form for people to fill out can make this process less burdensome.

You can never prevent someone from suing.

One important caveat—you can never prevent a person from suing. All you can do is lower the risk that the suit will be successful. Lawsuits are very expensive, and the only way you can prevent a lawsuit is to not publish.

Remember, always try to mitigate your risk when writing a memoir!

Memoirs must, on some level, use real people and places. Using real people and places carries the risk of invading someone’s rights. In order to mitigate this risk, the author should change enough details about a character to prevent identification, or get consent of each person involved. No matter how cautious an author is, however, the risk of a lawsuit can never be totally eliminated.