Writing the Next Great American Novel? Be Sure to Appropriately Fictionalize Any Parts Based on Real-Life People

Many of you have seen the following disclaimer made in connection with films or books: “All characters in this book are fictitious, and any resemblance to real persons, living or dead, is coincidental.” The line between fact and fiction may not always be so clear, however, as Maryland’s Court of Special Appeals discovered in addressing the issues raised in Publish America, LLP v. Stern, No. 2965, September Term 2010.

Stern was a librarian at the Ludington Library in Ludington, Michigan. During her tenure at the Library, Stern developed a manuscript about some of the interesting people in her community. In 2008, Publish America offered to publish Stern’s manuscript. Publish America insisted that Stern either obtain waivers from the people appearing in the book or appropriately “fictionalize the work.” Publish America’s concern was that the book disparaged real-life people who were recognizable within Stern’s community. Publish America instructed Stern to “make sure that all names, places, and events have been changed” so as to truthfully comply with the disclaimer and to “take care that there are no real-life people that are in the least bit recognizable.” Stern agreed to fictionalize her characters, and she even confirmed via e-mail that she had done so.

When Publish America released Stern’s book, The Library Diaries, there was a nearly immediate flood of complaints from people who felt that the book had a little too much fact, and not quite enough fiction. The Director of the Library suspended Stern from work and her employment was terminated ten days later.

Publish America was alerted to several articles in the press with titles such as “Librarian writes tell-all book, gets fired” and “Library worker fired for writing revealing book.” Concerned about potential defamation actions, Publish America temporarily pulled the book from the market. A few months later the book was canceled. Stern requested that Publish America release her from the publishing agreement so that she could pursue other publishers. Publish America offered to partially terminate the contract, but demanded that the indemnification and dispute resolution provisions remain enforceable. Publish America did not want to be on the hook for its own real-life drama based on Stern’s failures of imagination.

Stern sued Publish America for breach of contract, and the case went to trial. After trial, the Court granted Stern’s motion for judgment, finding that Publish America terminated the contract based on lack of interest in the book (Paragraph 24 of the publishing agreement), and breached the contract, as a matter of law, by not offering to return the publishing rights to The Library Diaries to Stern as required by the parties’ agreement. Publish America’s cross-motion for judgment was denied, based on the trial Judge’s conclusion that: “I certainly can’t find as a matter of law that [Stern] breached . . . the contract in this case, quite truthfully, there’s not enough evidence to submit the issue to the jury. I don’t think a lay person can testify as to whether or not it was fictionalized.”

On appeal, Publish America argued that by failing to adequately revise and fictionalize The Library Diaries, Stern committed a material breach of the publishing agreement, thereby excusing Publish America’s obligation to return the publishing rights to Stern. The Court of Special Appeals agreed, finding that the lower court erred in granting Stern’s motion for judgment. The Court stated that Publish America was not required to call an expert witness to establish what was essentially a question of fact: the evidence submitted at trial was sufficient to have the jury decide whether certain characters were reasonably identifiable individuals within the Ludington community.

So when you sit down to write the next great American novel, if it is based on fact, even in part, be sure you make those facts your own. Got any questions? Contact Bill Sinclair, head of STSW’s commercial litigation group, at 410-385-9116 or bsinclair@silvermanthompson.com, or 443-909-7492, or commercial litigation associate Sima Fried Robins at srobins@silvermanthompson.com or 410-385-6248.