The Dead Mad Monk’s Legal Disclaimer

You see it in the front matter of every fiction novel you read, something to the effect of, “This is a work of fiction and the product of the author’s imagination. Any resemblance to actual persons, living or dead, is purely coincidental.”

This is the dumbest thing I’ve ever heard.

Any decently written character in a work of fiction has to resemble actual persons, living or dead, or the reader wouldn’t find the character in the least bit believable – or interesting.

But we live in a litigious world, and few of us enjoy being sued. So this “author’s imagination/purely coincidental” nonsense is inserted into every work of fiction, a talisman to ward off the purveyors of litigation.

It’s what you call “boilerplate.” That is, a standard legal clause written by lawyers to prevent other lawyers from making hay out of something. In this case, it’s a disclaimer meant to ensure the legal snare of a libel lawsuit doesn’t catch the writer or publisher unawares.

Consider it the hand of Grigori Rasputin, the “Mad Monk,” reaching for you from the grave. It wasn’t enough that the licentious and seldom-bathed mystic likely precipitated, or at least heavily contributed to, widespread distain for the royal Romanovs in Russia, a distain that led to the eventual downfall of Tsar Nicholas II and the rise of Lenin. Here he is forcing legal mumbo jumbo into every book you read more than a hundred years after his assassination.

The why of it is that MGM made a movie in 1932 titled Rasputin and the Empress, in which Rasputin is suggested to have raped the wife of his eventual assassin, with the wife portrayed as a thinly disguised character in the film. She sued and cost MGM a pretty penny for the day.

Okay, I get it. In that case, the lawsuit was probably warranted. But MGM was so flagrant about it, I doubt the disclaimer would have saved their butts in any event.

Rasputin aside, the disclaimer itself can’t possibly be true. Not for writers of fiction, no matter how fictionized their characters might be, for the moment an author begins to develop a character, he or she must draw on experiences with real persons to create that character.

Real persons acting in real situations observed by the author over his or her lifetime must find their way into the author’s imagination. Without real people, real personalities, and real observations about the way real people behave in a given situation, the author would have nothing to draw into the imagination to bring a new, fictionalized character to life.

Not to bring the mood down, but consider: If you were writing about a character’s reacting to the death of a loved one, how could you possibly give life to that situation from your character’s viewpoint unless you had either experienced it yourself or witnessed another person’s grieving such a terrible loss, witnessed what the person was like before and after the terrible event? Without utilizing your own experience or observations of real people, how could you possibly bring any sense of realism to your character’s going through a similar ordeal? You couldn’t. Instead, you’d be stuck writing a two-dimensional and not very convincing reaction.

“Your mother died last night.”

“I heard. I’m terribly broken up about it. Maybe I’ll take a drive or walk on the beach to clear my head. Take a day or two off of work. This may even affect my interpersonal relationships.”

Of course, you can safely assume nothing about the dialogue above bears any resemblance to the reaction of a real person, living or dead. Nor does it bear any resemblance to the true and flawed complexities of human nature, the deep emotional and psychological impact such an event has on a person – the true effect of loss, the continuing tragedy of the event. You know, the stuff that makes a fictional character sympathetic and interesting.

The sample dialogue is also devoid of other interesting possibilities: the ugly underbelly of the human soul coming out in such situations: opportunistic greed, resentment toward others who are, for reasons real or imagined, culpable in some way for the death or for some slight along the way. Sadness, depression, greed, hatred – all of these things may well flow from loss. These real human reactions cannot be shrugged off. So your character cannot shrug them off. Nor can the character’s world remain unchanged. But believable change cannot be found in mere conjecture. You have to know something about real people, real people you’ve known either well or, at the very least, in passing.

In the most isolated sense, writers can imagine characters from their own experiences and leave the rest of humanity alone. But then, isn’t the writer a real person, too? So even then, a real person brings the depth of the character to life. There will be some resemblance to the writer’s experience and reactions, even if there is no one else involved.

If a character falls in love, there is a good chance the writer might base the character’s feelings on his or her own. Most of us have fallen in love, probably more than once. You may have loved one person for very different reasons than you loved another. But now the experience of love is based not just on you, the writer, but another real person who brought those feeling to life inside of you. So when you write the experience of love, there is bound to be a resemblance to at least two real people in the making.

In favor of the disclaimer, a resemblance can still be coincidental, an amalgam of various aspects of real persons that the writer has drawn from. The writer may not even recall the persons whose experiences are working their way into the fictionalized character, and it is not a single individual being recreated, but bits and pieces of several lurking somewhere in the writer’s memory who become one.

Think of Steinbeck’s portrayal of Okies in The Grapes of Wrath, the recreation of dialect and circumstances. Could the novel have been written without Steinbeck’s observation of actual Okies? Could he have brought Tom Joad or the Reverend Casey to the written page without those observations? Without Steinbeck’s keen ear listening to the specific speech and dialogue of honest to goodness, real live Okies? Steinbeck described himself as a “shameless magpie.” Certainly, a magpie cannot repeat something it never heard.

My point can be further made here by reference to the DSM-V, the Diagnostic Manual of Mental Disorders. While not a work of fiction, the manual, which classifies mental disorders, could not have been written without the observation, diagnosis, and treatment of real persons. Legions of them, in fact. Without the observations of real persons suffering from real mental disorders and the consistency found in the manifestations of the disorders, the manual would bear no resemblance to reality in its explication of those disorders. It would be useless.

Granted, it is not a perfect analogy. Yet for the writer of fiction, the development of a character’s personality, thoughts, actions, motives, and reactions must have its sources, just like the categorization of mental disorders in the DSM-V.

The disclaimer is also at odds with the universal writer’s admonition to write what you know. Writing what you have knowledge of lends authenticity to the characters you write about and the things that happen to them. Taking the disclaimer to heart, the admonition becomes, “Under no circumstances write anything you know.”

Now, clearly, no writer should decide to include his or her now hated ex into a story, describe the ex’s looks, habits, career, terrible acts, and license plate number – no matter how interesting that might be.

In truth, that would not be a fictionalized character at all, but a real person being maligned on the written page. Even if the ex is treated lovingly and compassionately, made to look noble and wise, you never know what someone will take offense to or decide is otherwise libelous.

And there’s the issue of privacy. Folks have the right to be left the hell alone no matter how much a writer might be tempted to skewer them. Or venerate them.

Yet to say a fictional character bears no resemblance to real persons is to say the sky is purple and the sun green.

As for the boilerplate disclaimer, it can itself be taken as libelous. Think back to the woman who sued over the implication she had been raped by Rasputin. Perhaps she could take the position that the disclaimer is a thinly disguised – and widely published – libelous statement that she is a litigious nut seeking to profit shamelessly from the works of legitimate artists.

Seems to me the case can be made. At least, I seem to recall hearing real lawyer persons, some living and some dead, talking about such things at some time or other.





The Dead Mad Monk’s Legal Disclaimer

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