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Creative Nonfiction: How To Stay Out Of Trouble

What is creative nonfiction? Lee Gutkind, editor of Creative Nonfiction magazine, sums it up best: “This is perhaps creative nonfiction’s greatest asset: It offers flexibility and freedom while adhering to the basic tenets of reportage. In creative nonfiction, writers can be poetic and journalistic simultaneously.”

Creative nonfiction is a genre that holds great creative possibilities. It involves the use of factual events or characters to create dramatic nonfiction using techniques such as dialogue, scenery, and point of view.

It combines the fact-finding of journalism with the literary techniques of the fiction writer to create a dramatic story that just happens to be true. This is also called literary journalism, and, like journalism, it is a genre based on truth.

Suppose an author has written her memoir under the guise of creative nonfiction, but she has spiced things up with a near-death experience and perhaps a rape scene—things that never actually happened in her life. Ethically, this author must redefine her piece as fiction. The basic facts must be true in creative nonfiction.

If the same author wrote a biography about her great-grandfather, she has some license to fill in the blanks, as long as it doesn’t affect the outcome of the story. She most likely doesn’t know what her great-grandfather’s farmhouse looked like on the inside or what he liked in his coffee—ethically, the author has the right to create dialogue and other “facts” that make up the creative element of creative nonfiction. Some authors use disclaimers to make sure their readers don’t feel duped if names or minor details are changed.

Learn more about short prose genres, including mixed genre writing

Readers must assume that they are reading a biased interpretation of events as they view them through the author’s eyes. The basic facts are there, but the author is reporting his or her own version of those facts. The implied pact between writer and reader is this: I am telling you the truth, but the truth as it is filtered through my eyes.

Legal pitfalls:

While the people and places mentioned in creative nonfiction pieces are still around, writers often change the names of characters in their work to avoid conflict. As long as it doesn’t impact the story, changing Linda, the waitress at the Burger Barn, to Cynthia from the Hamburger Hut might save Linda some awkwardness.

And if you’ve fudged the facts about her, changing Linda’s name just might save you from a lawsuit, but there is no guarantee. Linda can still sue you for defamation if she is obviously defamed, regardless of the name you give her in the book. Changing a person’s name is not a guarantee of protection, but it might help.

Other ways to stay out of trouble:

Stick to the truth. In a defamation of character suit, an offending statement must be false for a plaintiff to prevail against you or your publisher. Untrue facts that negatively affect a person’s reputation or credibility are considered defamatory.

Be careful not to report facts that may cause damage to another person’s physical being or business. Revealing that Johnny from the bank is actually a mob snitch, even when the facts are true enough, can lead to physical harm to Johnny and legal hot water for you. And be prepared for an invasion of privacy lawsuit if you are exposing embarrassing or private facts about a person, even if they are truthful.

Protect yourself by getting written permission from people you wish to write about. And if they are no longer living, make sure you aren’t setting yourself up for a lawsuit from their family. (Obviously, you are fairly safe in writing about people who died long ago.) If the person is a public figure whose actions or background are a matter of public record, then you do not need permission, but be judicious about the facts you report.

Senator Mucky-Muck may have an obsession with women’s feet, but leave his foot fetish out of your story, especially if it’s merely something you’ve thrown in to add some excitement to your story.

This article is for informational purposes only. For expert legal advice about your own publishing questions, always consult an attorney.

Want to know about the legal ramifications of pen names? Read Pen Names and Pen Names II.

At Writer’s Relief, we work with writers of personal essays and memoirs. If you’ve got a true story but don’t know where to submit it, Writer’s Relief can help. 

24 Responses to Creative Nonfiction: How To Stay Out Of Trouble

  1. I have written a book on creating awareness of important information on women’s health issues mainly targeting heart disease, menopause & estrogen. It also brings to the forefront that women’s health standards should be considered substandard today given the advanced technology available. My book contains charts, illustrations and has 190 cited medical references covering more than 80 health topics. It also states the medical fact that estrogen (as documented by references) is critical to a woman’s total health since there are more than 400 estrogen receptors in a woman’s body. Equally, it states that menopause has 35 negative health consequences, namely heart disease as more women die from heart disease than men. It brings awareness to the fact that estrogen protects a woman’s coronary arteries while in child bearing years but is lost at the time of menopause. I have written this book as I am a woman who has taken estrogen for 40+ years and have the health, in all areas, including appearance, of a woman in her late 40’s as documented by 7 different doctors. I am 70 and have never experienced menopause or any part of it. The book concludes with my plan to create the first international observational study of all long-term estrogen users, including women taking birth control (which contains estrogen), in an attempt to gain valuable data, which has never been collected, relative to the medical outcomes of women who have not experienced menopause as a result of maintaining estrogen life long.

    My question: Given the magnitude of this book & project, can I use a pen name in an attempt to keep my life private?

  2. Unfortunately, as you mention in your comment, we are not lawyers and cannot provide any legal advice. We recommend that you consult an attorney who specializes in literary law.

  3. I am finishing up a nonfiction book about loss. I use no names in my book but someone close to the story would know who I was talking about. I had 2 babies involved in a grandparent abduction in which I was assaulted and my babies ripped right from my arms. These people are now deceased but I still worry about family members coming after me. All the events in my book are true, none of them have been exaggerated or misrepresented in any way. The story actually happened in the 70s, one grandparent died about 10 years ago and the other more recent. I realize you aren’t lawyers but just from your experience should I be concerned? This book is more about helping others than to bring shame to anyone that’s why I don’t use any names.

  4. Penelope, unfortunately we are not lawyers and cannot provide any legal advice. We recommend that you consult an attorney who specializes in literary law. Best of luck!

  5. I’m writing a book about my life- before, during and after a near death experience. I want to include the story of my marriage breaking up, as there’s a lot of good material there. I haven’t used the names of my ex or his mistress and am using a pen name. I was also careful not to write of any actions that he and she committed specifically, that might lead to their identification. Ultimately though, if anyone who knew me then sees my picture on the book jacket, she will know immediately who my ex husband was. I was careful to say nothing disparaging of either one, only that there was infidelity and my reactions and struggles with it…should this pretty much put me in the clear?

  6. We are not lawyers and cannot, therefore, provide any legal advice. We recommend that you consult an attorney who specializes in literary law.
    Best of luck!

  7. Hello I am interested in writing a creative nonfiction biography of my life including a case my husband was sentenced for but I really don’t want to use the real names to avoid any heartache from both sides of the trial. Is there any issues when you are writing about an actual trial that took place I should be aware of? Thanks

  8. I’m currently writing a creative non-fiction/memoir/paranormal book about a house we once rented. The house has ties to a possible serial killer (now deceased) – he was never charged with the murders of 5 people, and he was killed before the last case went to trial. Everyone in the community suspected him, and feared him. The events surrounding him became national news back in the 1970s, so I believe he is to be considered an involuntary public figure. Anyway, my main question is that aside from using public record and news reports…which I know are okay….would it be defamation to tie his (possible) activities to the paranormal events that occur frequently in the area? He still has living family members, so I want to be careful not to offend them and also avoid a lawsuit. When dealing with the paranormal, no one has proof of anything….so I wouldn’t be saying he was at fault….but the question would be posed to the reader to decide.

  9. Wow I’m so impressed! Your website is so informative and thorough, I have determined just from reading here that what I’ve got is creative non-fiction. Names have all been changed including cities, the only thing I didn’t change were the states where everything took place. Just wanted to say thank you.

  10. Helpful stuff–thank you. Am writing an approximately 1350 word(personal essay? Creative nonfiction? Memoir? Still not sure). Two of the three names I’ve used are fictionalized–how(and where)is the best way to indicate this?

    Also–one knowledgeable writer in my critique group thinks I should send it to NY Times Op Ed. I’m thinking of the Sun–but either way, I’d be doing so purely on the grounds that it certainly won’t get accepted if I don’t send it. Any thoughts you might have will be appreciated.

  11. Gloria, we are not lawyers, so we have no expertise in this matter. You might want to consult an attorney.

  12. Hello I’m writing a true story (my manuscript) about two people in my family who molested me when I was younger. I changed their names as well as other family members name. Can I be sued for writing the truth? And what genre would this be classified as?

  13. Hi, I am having this very problem with a book I wrote about my grandfather’s WWII experiences–Captured by the Enemy: The True Story of POW Carl Leroy Good. I wrote it using his memoir, interviews, his personal stories, WWII Morning Reports for his company, history books, and other personal accounts of people who were in the same place at the same time. I wanted this book to be used as a learning tool as well as tell his amazing story. Using the information above, the book is totally true. However, in order to share the historical information without reading like a history book, I have characters who help portray the information. I have a footmark to mark each of those characters. He would have been around people, but I don’t have specific names for them. With that said, I have labeled my book as Creative Nonfiction. People are enjoying the book, but I cannot escape the negative reviews saying that the genre is not honest because it should be listed as fiction and they didn’t like how the book reads as a novel. I contacted Lee Gutkind who said that since the characters were made up to add the information, there could be a problem with that. He also said he couldn’t weigh in without reading the book for himself. The creative nonfiction genre can be a tricky genre to work with, but from reading the information above, I feel that I have been honest with the genre and that it should stay as creative nonfiction. What do you think? I am an honest person and I would never purposefully list it as something I did not think qualified. Please let me know what I can do. Thanks!

  14. Joan, Queenie is a book of fiction. Fiction does not have to stick to the truth the way that nonfiction would.

  15. In the book “QUEENIE” the author (Korda) talks about the royal family as though he was a friend and they said certain things but these are fictional. He also includes an extra brother to charles. How can he publish thi without being libelled ?

  16. Richard, we would stick to fictionalizing everything in your story to stay out of trouble, as well as a possible pen name. If you still have questions about legality, you can always consult an attorney.

  17. Thanks so much for your advice. But I want to find out.
    I have been rejected by an embassy in my home country a couple of times. Now, the truth is, I turned in all the required documents they asked of me but when I presented them on my day of appointment the consular officer didn’t look at any of my documents and handed me a denial letter. This thing is happening to thousands of people here in Ghana and I gathered courage to write about it. I have fictioned the characters, but maintained the places involved without making any offensive lines to the embassy which keep doing that to us. I believe the story needs to get told. After reading this article of yours I am nonplusse. I don’t think I find a replacement for a country or fictionalized it…. Any advice….. Please.

  18. Hi Kim: It might be best to fictionalize the names and locations as well as to write it with a pen name. Good luck!

  19. I am currently in the middle of writing the story of my journey taking care of my father that has stage 4 lung cancer. It has been a tough 7 mths and there have been many mistakes by the doctors and hospital. I wanted to be truthful and write everything including how selfish my sister has been through the whole ordeal. How do I go about writing from the heart without making it fiction and not having a lawsuit?

  20. I was careful in my novel, "Jacob’s Courage: A Holocaust Love Story" to keep the primary characters fictional. While they might have encountered Heinrich Himmler in Theresienstadt, or a real partisan after an escape, I was careful not to portray this as a memoir. The novel represents the Holocaust in every detail, but it is still a piece of fiction. Authors should be very careful about the dividing line between fiction and non-fiction. While the events surrounding my characters are facts, the characters are fictitous. To portray this as anything else wouyld be to abuse license.

  21. Hi Ronnie,
    How strange! This little piece on writing creative non-fiction is so pertinent to the minefields of all sorts of potential pitfalls that I had to avoid while writing a book and yet it missed me only by days after I sent the manuscript to the publishers. Although I hold a doctorate degree in law, this little piece from someone practically involved in the industry gives me enormous relief that I must have done the right thing.

    This is a very useful tip for creative writing based on truth.

    Excellent help.

    Ram.

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