GETTING SUED OVER A CHARACTER
by Haywood Smith
I find it amusing, the number of people who think that making the New York Times Best Seller list means I must be a millionaire. After I made the list, my son said, “Mama, you’re famous.” I laughed and replied, “I’d rather be rich.”
Back in 1994, my then-husband convinced me to put the house into trust for our son, ostensibly for inheritance tax purposes, but in fact, to avoid tax liens (that’s another story). The trust turned out to be both a blessing and a curse. The good news is, my ex couldn’t hock the roof over my head when he went middle-aged crazy; and when someone sued me over a character in my books, the house wasn’t an attachable asset.
Yes, I was sued over a character, by a friend of my sister’s who thought my sister had betrayed her confidences. In fact, the stories I used either came from the plaintiff, herself, or other sources. My so-called “friend” had once said she wanted to write a book, and I encouraged her, but many years later, there was no book. So I called her and asked if I could use some of her clever true divorce stories for one of my characters. She thought for a second, said okay, then went back to her other call.
Word of caution: If a “friend” says you can use some of her true-life stories, GET IT IN WRITING. My so-called friend conveniently “forgot” giving me permission, and sued, turning down a $150,000 settlement from our liability insurer, and asking for $1,300,000 from me and my publisher over my favorite character (ironically, named SuSu) in The Red Hat Club. And another suit for The Red Hat Club Rides Again.
Because of the litigation, my publishers asked me to “erase” that character from Wedding Belles, the third book of the series. I hated to do that to my readers, but if I so much as mentioned that character’s name, the plaintiff would have sued us for that book, too. What a mess. I write my books to bring humor, hope, and healing to my readers. I have never written a word to harm or injure anyone. But in Georgia, malice is not a requirement in the defamation
Three years after I was served, I ended up sitting with my editor in court for ten days (most murder trials only take four!), hearing her lawyers paint me every shade of black. News flash: the papers only publish the accusations, never the rebuttals.
As it turned out, more than 2/3 of the “similarities” her lawyers pointed out would have applied to anyone who grew up in our neighborhood and went to my high school. Were there real similarities? Of course. She’d told me I could use her stories. Did she have a financial motive to “forget”? Of course. It’s always about the money. The truth is, I gave my character all the annoying habits and rule-breaking behaviors I could think of, because she was the archetypal Goody Two-shoes gone bad who challenged the
ensemble’s friendship, faith, and morality, making them prove their love for her, over and over.
Who knew, the plaintiff had all those annoying characteristics? And, hand to my heart, I had no idea the plaintiff had had a facelift when I wrote that my character had. It just fit for a character who was trying so hard to be younger as she aged.
During the trial, the plaintiff revealed herself to be a very sad, troubled, litigious person whose many problems originated long before I even thought of writing. When the defense rested, the judge charged the jury that if anyone could recognize the character as the plaintiff, if there were any “sexually objectionable” behaviors (by whose
standards?) by the character, and if the plaintiff’s “feelings were hurt,” they must find for the plaintiff. I asked my editor why we’d even bothered to come.
Two hours later, the jury came back and awarded her $100,000 and no legal fees, well within our coverage. Then the jury asked if they could keep their books! I laughed and said yes, but I wouldn’t autograph them.
As for the plaintiff’s award, her lawyers had run up huge fees, taping depositions, having forensic audits of my computer, so I doubt they’d let her keep much. I hope she did get something so she can get the help she needs. In the end, everybody lost. I can’t imagine what life would be like seeing the world through her eyes, and I’m deeply grateful that I don’t.
So take care, Georgia writers who are writing romance: When you draw from life, as we all do, make sure the physical description, life particulars, and history of your sexy characters are different from reality.
Now, when people tell me they have a great true story for me to write, I make the sign of the cross and back away. (Well, mentally, anyway.) Actually, I tell them that they need to write their own stories, for their families, if nothing else. And when I create a character, I have to search my brain to try to remember of anything I’m using originated from someone real. But I don’t want to harm anyone. I never did. I put this experience in my folder with getting bitten by a rabid raccoon, finding out my
husband of thirty years was engaged to a stripper and had run up $100,000 in debt for strip club bills that I was liable for, and discovering that I’m a host organism. No matter what, God takes care of me.
But others can learn from my difficulties, as I have, so be careful with those romances. Especially erotica.
Haywood’s latest release (January 2013) OUT OF WARRANTY (St. Martins Press) is available now on Amazon.
More About the Author: http://www.haywoodsmith.net/
To view all her books: http://www.haywoodsmith.net/books