Tuesday, June 23, 2009

Writing from experience

I'm slow to watch some of the movies that are released each year, even though I really want to. Yesterday, I watched Rumor Has It - a movie that came out in 2005 with Jennifer Aniston, Kevin Costner, Mark Ruffalo, and of course Shirley MacLaine. The premise of the story is that a woman discovers that the book and subsequent movie, The Graduate, is based on her family. This struck a cord with me because the book I'm working on now pulls from some of the emotional experiences I've been through, some more recent than others. While it is definitely a work of fiction, the idea was born from a series of emotional traumas in my own life, something I suspect from which most fiction is born.

So, when is fiction truly fiction? I'm sure there are court cases, but one measurement is offered to be whether or not something is said or depicted that is an out-and-out lie and causes someone financial harm, or at least this is how it was explained to me. So, if you have for example court documents or letters written by the individuals who might resemble your characters it becomes much more difficult for anyone to sue you and win - and it could generate a tremendous amount of publicity.

Back in the 1990's there was a law suit by the Andy Warhol estate against an artist who took one of Warhol's drawings and morphed it with the new morphing software that was becoming popular. The ruling went in the artist's favor I believe because it was found that the painting no longer looked like the original but that the artist had created an significantly new work.


Writers often worry about someone stealing their ideas but this is less likely and most court cases have not found in favor of the person suing. Ironically, J.K. Rowling has been on both sides of this issue. Most recently, she was accused of stealing the idea for Harry Potter for a second time.




But she has also sued someone for using not only her idea but her characters in an unauthorized Lexicon.


It's important to understand that for the most part idea's cannot be copyright protected but the individual execution of those ideas can. This is different than someone obtaining a patent for an invention. Titles also aren't copyright protected which is why you'll see the same title used by different authors.

Still, these are all issues to worry about if and when they happen as long as the writer is not actually intending to plagiarize someone else's work. Taking one's own experiences in life as inspiration you'd think that this would avoid the whole plagirism issue but most authors will tell you that fans often tell them that a character or two is just like someone they know.

I guess it really is a small world after all.


Terry Odell said...

I do get that, "are your characters based on real people?" question a lot. My usual response is 'bits and pieces'. Right now, I'm working on a manuscript with characters and themes rooted in my heritage. I'm sure my family will recognize bits and pieces of some characters -- actually the hard part is keeping them from being too stereotypical, because in fact, that's what they were really like.

L. Diane Wolfe said...

I get that question as well, and no, not one of my characters is based off of any person I know.
I don't use any real life situations, either - with one exception! In one of my books, the characters are playing Putt-Putt and begin rearranging the course by placing bricks in front of the holes for added challenge - and then noticed the people behind them were actually playing with the obstacles in place. My husband's cousin really did that one time and the couple behind us played as if that was part of the course.
Like my characters, we beat a hasty retreat before we were discovered!!

L. Diane Wolfe

Roger Rapoport said...

A great deal has happened since the events referred to in this commentary. Hundreds of newspapers and magazines, including the Associated Press, have reported that Steve Vander Ark's Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials was published by RDR Books in January 2009 and is widely available in the United States, Canada, the United Kingdom and elsewhere around the world. Mr. Vander Ark has lectured widely across the United States and Britain on the new book which has been well received by the critics. Kirkus Reviews has high praise for the new book: "Stealing a march on all competitors, this wins points for currently and all but the most obsessive readers will find it unexcelled for ease of use as a quick reference guide." Many other reviewers have similarly praised the book.

In a statement issued to Publishers Weekly, J.K. Rowling's lawyer Neil Blair said: "We are delighted that this matter is finally and favorably resolved."
Many legal commentators have written that Judge Patterson's decision http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/92/, which should be read by anyone interested in this case, makes clear for the first time that reference books are transformative under the Fair Use Doctrine. The judge created a very clear roadmap for the author of the Lexicon and other authors of similar non-fiction companion works on fictional series. This is good news for anyone thinking about a literary companion work and clarifies a previously murky area of copyright law. Judge Patterson's guidelines should be read by anyone working on a similar reference work.
In an article written for the American Library Association and the Association of Research Libraries attorney Jonathan Band explains "How Fair Use Prevailed in the Harry Potter Case." http://www.arl.org/bm~doc/harrypotterrev2.pdf. A great deal of additional up to date information is available at www.rdrbooks.com and also at the Stanford Law School Fair Use which represented RDR books on this case along with attorneys David Hammer and Lizbeth Hasse. Visit http://cyberlaw.stanford.edu/case/rowling-v-rdr-books.'

Roger Rapoport
RDR Books