Image: Matthew Loffhagen
Creative nonfiction can be incredibly compelling. Factual accounts jazzed up with a creative approach, or a little supposition, they retain the innate relevance of real life events while adding the entertainment value of a well-told tale.
A straight biography is one thing, but stories thrive on the little moments and there are times when you simply won’t have the information for these without a bit of invention. For instance, you might want to write the story of an accomplished ancestor, but have to invent some minor details that have been lost to history. Likewise while you could write a story about your parents’ divorce, telling it from the point of view of your pet dog would involve a fair amount of invention.
In this way, creative nonfiction is a great way of imbuing real stories with an enhanced readability. The genre does, however, come with its own set of risks.
Labelling something as ‘nonfiction’ carries with it the assertion that it is in some sense ‘true’, but we’re subjective creatures. When writing creative nonfiction it’s often difficult to avoid putting a ‘spin’ on real events which some who were present may object to. Even if, to you, your account is 100% accurate, some may even object due to their own subjective memory.
Of course it would be nice if every account of a situation met with the approval of everyone involved, but that can’t always be the case. Because of that this article will share some factors (both ethical and legal) that authors should have in mind to keep themselves out of trouble when writing creative nonfiction.
Ethical concerns of creative nonfiction
Laws, and especially laws regarding art, are almost always intended as an extension of ethical conduct. That’s certainly the case with creative nonfiction; stick to ethical behavior in your writing and you’ll have nothing to worry about legally.
When considering the ethics of your creative nonfiction, there are two groups to consider:
- Your readers.
- Anyone included in your account.
As far as readers go it’s your job as an author not to mislead your audience as to the fact/fiction balance of your piece. If they come away thinking something is true when you invented it then you have crossed an ethical line. If they come away feeling something is true, but knowing logically that it may not be, then you’ve done your job as a writer.
For a master class in doing this right you can consult the work of Stewart Lee. Lee frequently plays with his audience’s perception of how ‘real’ his narratives are, having characters refer to their own fictionality and highlighting moments of creative license.
I worked on this opera about Jerry Springer. And, um, we got accused of being blasphemous… We got 65,000 complaints when it went on television. The BBC executives that commissioned it had to go into hiding, with police protection. And me and the composer were going to be taken to court and charged with blasphemy. But at the end of June, the High Court threw the case out on the grounds that it isn’t 1508.
But… It’s… Hey, and before you all write in, I know that the first blasphemy prosecution was 1628, right, but there’s something rhythmically pleasing about 1508.
– Stewart Lee, How I Escaped My Certain Fate
Here there is no expectation that Lee will give an accurate date, and so when he does proffer a date it can be reasonably expected that he may be using creative license. Lee then derives humor from the idea that this is not the case.
Though it needs to be clear which parts of your story are fiction and which are fact, this is almost always done by tone. The most common work-around is to present the story as broadly fictional, perhaps having some obviously fictional events at the beginning to guide expectations, so that the audience is more predisposed to satisfied doubt than problematic belief. If this is not an option there is the more difficult method of styling fictional elements differently, to make them recognizable, or acknowledging where you have engaged in invention.
Your second ethical duty is to the characters of your story. Remember that a written account is not perceived by a readership as ‘your’ account, but as a definitive account. We revere the written word, and so assume both that writers are at least attempting to be objective and that their accounts are therefore relatively trustworthy.
No matter how strong your feelings, it is vital not to attribute anything which is not hard fact to an actual person. This doesn’t mean you can’t let loose, it just means you have to phrase certain things as opinions. Instead of declaring a person’s motivations, you must instead present evidence of their motivations. ‘My stepmother had always been selfish’ isn’t an ethical statement, but ‘I’d always found my stepmother to be selfish’ or ‘my stepmother’s character can be summed up by her habit of always snatching the last biscuit’ can be.
Keeping to this rule will also work in your favor; readers are better disposed towards this kind of balanced writing. The power of the written word is sizable, so presenting an account as objective when it’s about someone who has no perceived power to rebut will make you seem like a bully. This kind of adherence to strict fact is also the basis of staying legal.
The legality of creative nonfiction
There are many forms of law protecting someone from untrue accounts of their person or behavior. Generally, however, they all come down to defamation. This is concerned with whether or not you have unjustly harmed someone’s reputation.
This ‘unjust’ qualifier is a legal one. You may feel someone deserves to be seen badly, but you can’t use information which is not legally viable to do so. If someone hits you in the face you can say ‘they hit me in the face’. If a masked figure hits you in the face and then your number one suspect hints it was them, then it would not be sensible to write ‘they hit me in the face’, but you would be within your rights to write about both the injury and the hint in a way that leads the reader to that conclusion.
Your biggest defense in this situation will always be to…
Tell the truth (even when you’re not)
To be completely legally safe, don’t say something happened if it didn’t. Or, if you have to, then say you’re making it up. Again Lee is a good example. After telling an emotional story about an incident which paints television star Richard Hammond in a bad light, he concludes ‘Now… that story about Richard Hammond is not true. But I feel that what it tells us about Richard Hammond is.’
There are many ways to do this. The easiest is simply to qualify your creative moments. Phrases like ‘I felt’, ‘I imagined’, and ‘Maybe’ are useful, as are words such as ‘might’, ‘perhaps’, and ‘seemingly’. This kind of phrasing qualifies your statements as opinions or hypotheticals, and lets your readers know that while you may believe certain things you are not presenting them as facts.
Generally the test for defamation is whether or not a reasonable person would unfairly think less of the subject given your account. Generally, so long as you present your work as a subjective work or a clearly fictional account and don’t state anything about another person as a hard fact when it isn’t, you won’t even have to qualify your words.
If, however, you want even more protection there are a few more things you can do.
Get written permission
This may or may not be possible, but getting someone’s permission to fictionalize their behavior is a fantastic protection. Do be sure, however, that they understand what you’re asking for and that whatever they sign is equally clear on the subject.
Written permission shows evidence of an understanding, but is not a contract. You can’t, and of course shouldn’t, trick someone into giving you permission to defame them. This also applies if they feel you’ve gone further than you said you would.
This should be common practice, as it offers a form of anonymity to subjects and shows your own commitment to not harming their reputation. Changing names, locations, and dates should be standard for creative nonfiction unless you feel it destroys your piece.
It is not, however, a complete defense from your ability to defame people. A pretty stunning example comes from the ‘Eyes Down’ episode of the television show That Peter Kay Thing. In this show the eponymous comedian plays a pedantic, Bolton-based fire safety officer named ‘Keith Lard’ who it is hinted engages in bestiality.
This was to the displeasure of a Mr. Keith Laird, a Bolton-based fire safety officer of Kay’s previous association. The minor name change proved no defense, and a reported £10,000 payout was split between Laird and various fire safety charities, with a disclaimer being added to all future versions of the episode.
Channel 4 and Peter Kay would like to state that the character of Keith Lard may have led some persons to wrongly believe that the character was based on a Mr. Keith Laird. We wish to make it clear that this is not the case, and would like to apologise to Mr. Laird and his family for the distress caused. We have also agreed to make a donation to the Fire Service Benevolent Fund and to Mr. Laird’s family for his and his family’s personal distress.
– ‘Eyes Down’, That Peter Kay Thing
Same name or not, the question of defamation is whether a person is unjustly injured by your account. Even if they could only be recognized by people in their own lives this still counts as a significant injury.
This is a sticky issue, and one which varies depending on country. Many people are fans of The Aspen Times’ motto ‘If you don’t want it printed, don’t let it happen’, however exposing private information could lead to legal action.
The nature and validity of such action would depend on the case and the outcome of your assertions, however once again sticking to facts will almost always offer adequate protection.
Where there is little wiggle-room is when you reveal facts with the intention or foreknowledge that someone could be physically hurt as a result. Here dealing in facts does not justify what is more or less an attempt to hurt someone.
These issues are unlikely to ever be relevant for the vast, vast majority of authors.
Stay true, stay safe
Again, so long as you don’t say anything which is not true in the legal sense you should be fine. Most authors who engage in creative fiction will stay safe despite absolutely no knowledge of defamation law, simply by sticking to a style that attempts to be fair and is attractive to their audience.
When engaging in creative nonfiction remember that as an author you have a duty to at the very least acknowledge your own subjectivity, and leave major decisions about motivations and morality to your readers.
Do you agree with defamation laws, or do you think authors should be free to express themselves artistically regardless of the consequences? Let me know in the comments.