Writers Tricks of the Trade SPRING 2017 ISSUE 2, VOLUME 7 | Page 35

5 T HINGS N ONFICTION A UTHORS C AN G ET S UED F OR
B RAD F RAZER , REPRINTED FROM J ANE FRIEDMAN ’ S BLOG WITH PERMISSION
T ODAY ’ S GUEST POST IS BY ATTORNEY B RAD F RAZER , WHO HAS
ALSO WRITTEN ABOUT FAIR USE , COPYRIGHT AND TRADEMARK
Nonfiction is a dangerous genre. Admittedly, few people
ever speak the words “dangerous” and “nonfiction” in the
same sentence, but from a lawyer’s perspective, a nonfiction
author can incur significant legal liability unless a proactive
approach is taken when writing and editing such works.
Unlike pure fiction or fantasy, nonfiction is grounded in the
real world, with real people, real names and real places, and
this inevitably creates an environment where a legal misstep
can occur.
A major premise of this post is that it does not matter whether you are right or wrong. (See my article, It’s the
First $50K That Kills You. Even if you are right, it costs a lot of money to get to the point where you finally get to
make your defensive argument to a judge. Thus, it is better never to get sued at all. In that spirit of avoidance, here
are the top five things nonfiction authors get sued for:
1. Defamation
Defamation gets called lots of things, like libel and slander, but at the end of the day it means that:
 you have stated something to another person as a fact about someone who is alive,
 the thing you said is both objectively bad and demonstrably false, and
 the person about whom you spoke was damaged by your statement.
If you wrote, “I know for a fact that my former boss, Silas Greene, is a pedophile” when he in fact is not a
pedophile and your work containing that statement was available for other people to see and read, Silas Greene, if he
were still alive, would have a pretty good defamation lawsuit against you. There are many, many subtleties and
nuances here, beyond the scope of this post, like opinions and the doctrine of innuendo and the First Amendment
and public figures, but remember that if you are ever going to state something about a living person as factual, make
sure you can prove it is true. Truth is a defense to a defamation lawsuit.
2. Copyright infringement
Copyright infringement occurs when you post or display or reproduce someone else’s tangible works that you
have presumably copied or obtained from another source. We should always start from that premise: that any such
use without permission is copyright infringement. From there follow three questions:
1. Will you get caught?
2. Will you get sued?
3. Will you have a defense (such as Fair Use) in that copyright infringement litigation that will permit you to win the lawsuit?
For example, assume that you want to copy text and photos from a pre-existing work into your nonfiction book. If
you
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