If you have ever been in a classroom with me, you have probably seen me write this sentence on a whiteboard:
You have the right to tell your story.
This is a philosophy that I believe to my core, and one that almost every writer needs to embrace before they can capture the deep, emotional truths of the tale they want to tell. No one can write well with their mother looking over their shoulder, or their co-worker or their spouse or their neighbor or their child or their dog. You have to write as though no one is watching, judging or censoring you.
This a truth about writing a book. When it comes to publishing one, however, you are entering into the public marketplace, and the rules of society now must come to bear – which means that you might not, in fact, have the right to tell your story, especially if you are writing memoir and especially if your story involves other people and especially if what you say about those people might be something they would rather not have said.
There are legal, ethical and practical decisions that must now be considered, and whole books could be written about these topics. (See the Independent Book Publisher’s Association for a list of articles related to specific legal questions, and The Author’s Guild for more legal insights.) Today, I just want to share with you the experience of one writer and what he did to address his challenge.
My client, whom I shall call Christopher, is getting ready to self publish his memoir. Due to the nature of the material – it is a highly personal, detailed, graphic story about the demise of a marriage – I strongly suggested that he consult a literary lawyer before going to press. I am not a lawyer and have zero legal training and would never presume to give anyone actual legal advice, but I have known writers who have been sued and it was tragic, and my goal was to have Christopher avoid this unnecessary pain. If you are working with a traditional publisher to publish your book, they will provide legal consulting on your manuscript, but it you are going indie, you must do it for yourself.
Christopher hired an excellent lawyer who specializes in this work. He was not, in other words, a lawyer who specializes in defending car companies or patent infringements. This lawyers’ recommendation was strong and straightforward: unless Christopher could obtain a written release from his ex-wife, he should consider a pseudonym. The legal risks of using his real name were too great. The lawyer also recommended fictionalizing names and identifying details of certain other characters so that there was no way they could be identified.
Below, Christopher explains in his own words what this experience was like, and what he decided to do:
1.) Were you surprised by the lawyer's suggestion?
I’ve worked in TV for 30 years, so I guess I’ve learned to expect most lawyers to say no. It’s the safest advice they can give. What I did find surprising were the kinds of details he had me lose. I had to change occupations, city names, hobbies, pastimes, and any identifying details that would make a person recognizable.
2.) How do you feel about using a pen name?
I was heartbroken at first. I’ve never had my real name in a credit for anything I’ve ever done professionally. I was so looking forward to seeing my own name attached to the book I worked so hard on. But then I began to digest the attorney’s advice. There are many private and personal sexual details in my manuscript. I realized that changing my name would help keep everyone’s privacy in tact, especially my daughter's. She is a writer for a newspaper, and I thought it was best not to associate my real name with hers for the sake of her career. So weighing the legal advice and my personal considerations, I opted to follow the attorney’s advice. It also protects me from being recognized by my friends and peers.
3.) What, if anything, do you feel is lost by going with a pen name?
I think losing some of the identifying details takes away from a character’s description. Someone’s occupation or geographic location says a lot about a person. For example, you expect someone from the south to speak differently than from other geographic regions. You would expect a doctor or counselor to say some things a layman wouldn’t.
Using real names makes it personal to me. I think fictionalizing the characters and cities gives the story a more “mythical quality.” It’s still a memoir of my experiences, but now it’s kind of an everyman’s tale. I had to work to get in some of the character’s same behaviors without any personal information.
4.) What is gained?
The most practical thing you gain is some limited peace of mind that you’ve protected yourself, as much as you can, as well as those you’ve written about.
The (tweetable!) takeaway? Write as if no one is looking, but publish as if everyone is.