Memoir Legal Issues

How risky is the memoir you’re writing or are about to publish? I didn’t say risqué. I’m talking about memoir legal issues here.

Since most memoirists aren’t writing about happy periods in their lives, memoir legal issues must be considered. The last thing you want to do is court more unhappiness and stress. The three primary memoir legal issues you need to be concerned about:

• Defamation – Defined as a written false statement concerning another person or yourself that you’ve published–or even shared with a third party–which has caused damage to the person who sues you. Truth is your best defense here, but truth can be hard to prove, especially if you’re writing about events that happened long ago. Opinion is another defense, but hardly relevant in a memoir since you’re presenting events as fact.
• Invasion of privacy – While the definition differs from state to state, as do all of the laws we’re talking about here, common elements include the intentional intrusion into the private affairs of another (known as intrusion upon seclusion), appropriating another person’s name or likeness (usually a famous person’s) for commercial benefit, unreasonable publicity given to a private life, and portraying someone in a false light that would be highly offensive to a reasonable person.
• Intentional infliction of emotional distress – The phrase pretty much says it all. The action has to have been deliberate and the emotional distress severe.

The goal, obviously, is not to figure out how to mount a defense once you’ve been sued, but not to be sued at all. Protecting yourself, however, goes well beyond just changing the names in your book. For starters, you may also need to change identifying details, from physical characteristics to a person’s profession and even where they’re located.

Alternatively, you can get written permission to include someone in your memoir by emailing them the excerpts of your book that feature them.

You will probably want to include a disclaimer. The one I wrote for Busting the Brass Ceiling, the memoir I co-authored with Fanchon Blake, who was in her late 80s when we started working together, read:

While all the stories in this memoir are true, they reflect Fanchon Blake’s recollections of experiences over time and contain dialogue that has been recreated. Some names and identifying details have been changed.

The disclaimer written by Robert S. Bushwell, who wrote about the abuse he experienced as a child and, decades later, his efforts to bring the abuser to justice in Robby’s Rule: A Journey to Redemption, was a lot longer and more poetic.

The events, places, people and conversations in this memoir have been recreated from my memories. This story is told through the eyes of Robby as he grew into just Rob. It is a narrative that does not attempt to delve into the life journey or motives of others. One of my reviewers found that during a particularly traumatic part of the story, I had attributed the name of a person to the wrong character. I was told that these things can happen during stress. This is a story written from memory, so I fixed that error and have tried my best to recount a truthful story. The chronology of some events has been compressed.

Memories and memoirs are like the facets of a diamond—there are many sides to both. This book only attempts to show one facet: that of the boy. When necessary, the names and identifying characteristics of individuals and places have been changed to maintain anonymity. This book was written with positive feelings for all in it less one, the perp. As imperfect as that might be, I like who I’ve become.

For more information about memoir legal issues and how to minimize any risk you might be running with your memoir, Google memoir legal issues. You’ll find lots of articles. Also consider checking out the workshop “Memoir: How to Minimize Risk” at https://creativelawcenter.com/. You’ll have to pay for it, but it does come with a list of resources and some good examples of disclaimers.

Of course, you can always hire a lawyer to review your manuscript if you feel that’s necessary. You may even want to run the story by an attorney before you start writing and get a legal opinion about the memoir legal issues you might run up against and the risk you could be running.

As much as you will want to seriously gauge any memoir legal issues you might be courting once you’ve completed your first draft, don’t worry about that when you’re writing. Get your story down. All of it. With the real names. There will be plenty of time to edit later. And it will be a whole lot easier to do a global search-and-replace when you get ready to change names than to try and remember which pseudonyms you’ve given to the various players in your manuscript. In the meantime, may your memoir bring you clarity and catharsis.