Rueful Recanting

Rueful Recanting

In creating Whittle Nods for Thistledown, I arrived at a decision to create a disclaimer for these essays. The reason for doing so was not the fear that I would say something so controversial that somebody would sue me. Rather, it was the built-in paranoia that because I was referring readers, on occasion, to other web sources that I should try to be sure that I was signing off on the legality and accuracy of the information they would stumble upon if they went to those sources. After all, the web is rife with copyright strife and as a book publisher I shouldn’t be setting any bad examples.

The idea of disclaimers has a long history. I’m sure there were precursors that go back to antiquity whether they were to post warnings at desert watering holes, or to scare the hell out of those travellers who were passing through a warlord’s marked territory. We still see such disclaimers when dangers lurk and the careless need to be warned. The disclaimer also remains an essential part of writing and publishing history and there have been many legal battles avoided and settled by its use. Just how far back in the history of books it goes I am not sure, but there have been some famous ones, notably the one that completely dissed Copernicus’ book that postulated the theory of a heliocentric solar system. As the story goes, in 1534, while Copernicus lay on his deadbed, unprincipled theologian Andreas Osiander substituted his own church-apologetic and spurious introductory for Copernicus’ great work De Revolutionibus. As history tells us there were those who had a large problem with a heliocentric universe. Good thing Kepler, a few decades later, recognized the fraud and undid Osiander’s bogus disclaimer and gave Copernicus his permanent valued place in world history. Odd to think that this was one of the first disclaimers that intended to discredit a book rather than protect it, an odd and rare implosion of a disclaimer’s purpose.

Through the centuries books have been published with disclaimers that have served a variety of purposes. And so by the 21st Century and the web explosion, we have now have a superflux of disclaimers to clarify and defend all the millions of bites of writing that are created or regenerated. The web paranoia can run really deep as site owners try to eliminate all suspicions that the writing that appears on their pages is above anyone’s concerns of reputational harm or unscrupulous gain. In some cases the disclaimers have become so bizarre that one might wonder just where their evolution will end.

For example, there was a huge public response to a disclaimer of the publishers of a booklet containing the Constitution of the United States and the Declaration of Independence. Apparently a lot of Americans did not want to hear the publisher’s disclaimer that “values expressed in these documents are not necessarily the values of the people who published the booklet”, or that the readers of the booklet should “use caution” if sharing the booklet’s content with their children. Silly, one might argue, though the issues of race and sanctioned slavery contained in the original Constitutional docs might point toward one reason why the booklet’s publisher made such a disclaimer. Still many thought the publisher’s statement to be just too un-American and raised a ruckus.

Throughout the last century disclaimers appeared frequently on copyright pages of most books. Many times they would be there to ward off potential defamation suits. In Tom Wolfe's 1987 The Bonfire Of The Vanities his disclaimer reads: This book's story and characters are fictitious. The setting is New York City and certain long-established institutions, agencies and public offices are mentioned. But the characters involved in them are imaginary.

One has to wonder how many times Mr. Wolfe has to say the characters are imaginary. Reviewers said it was because his character Myron Kovitsky in the book was modeled on Burton B. Roberts, a no-nonsense Bronx judge who it’s reported read the book with interest. Maybe in anticipation of scrutiny Wolfe had added insurance to his disclaimer by dedicating the book to Kovitsky as well.

In D.H. Thomas’ 1981 The White Hotel he states: The role played by Freud in this narrative is fictional. My imagined Freud does, however, abide by the generally known facts of the real Freud's life, and I have sometimes quoted from his Works and letters, passim.

Thomas’ note is as broad a leverage as one could ask for. Using the legal term ‘passim’ within this context not only prepares the reader for copious footnotes within the text but gives incredibly broad leverage to “here, there and everywhere” in his flexibility to cite Freud’s Works.

Disclaimers can sometime get quite nasty too. In 2009 the Mississippi Legislature proposed that a disclaimer be placed on every textbook in the state that discussed evolution. It read in part: This textbook discusses evolution, a controversial theory some scientists present as a scientific explanation for the origin of living things. No one was present when life first appeared on earth. Therefore, any statement about life's origins should be considered a theory. Evolution refers to the unproven belief that random, undirected forces produced living things.
The motion and disclaimer were defeated.

The need for more elaborate disclaimers seem to grow as the development of websites and web content continues to grow. As the need grows so too does the ambiguity of the language that shapes disclaimers. These days it is just so easy to editorialize intentionally but bail out of any responsibility by using a disclaimer that says that everything written whether true or false was “unintentional”. 

Thistledown’s use of disclaimers is rare but when non-fiction and fiction fuse, or when writers reference their work to people and events already known, care must be given to assessing the connections, intentions, and any legal fallout that may happen. In researching disclaimers for Whittle Nods, I have come to the conclusion that some disclaimers have now reached almost epic proportions in addressing what they need to protect, and how they need to inform the public of that protection.

It is within this climate of the increasingly comprehensive fiction disclaimer (and the intent of fun) that I now offer this all-inclusive no-fuss-no-muss-disclaimer that can be generically applied to any written work in any media. I call it the “purgatory model” as it is intended to purge all the potential sins as well as most hints of sin that any writer or content publisher may make before anyone asks.

The Purgatory Disclaimer
The writing presented publically in this present format here (known as the Work) has been carefully considered in eliminating all plagiarism or claims of unlawful creation or use of any character who may exist or have existed under the same name or under a different identity as a real or fictional person. Additionally, any reader of this Work who has witnessed or may witness text, in whole or part, similar to or in some part identical to this one, can be confident that this Work is original, genuine, copyrighted. Its ideas and issues are intended to be benign, and its influence and effect on others is extended only as an engagement of writer and reader. Its sole purpose is entertainment. If the Work is based on some true events of which the writer and publisher are unaware, or there exists within the Work some interpretations of true events, or some fictionalized events that become true it is purely coincidental. Any residue memories that may or may not include the experiences the writer has had while living, including those periods of time when sleeping and dreaming are purely coincidental and not consciously appropriated. 

The publisher and writer further acknowledge that all persons appearing in this Work may contain trace elements of all the writer’s known human contacts as well as the writer’s deliberate and coincidental imaginary creations, but any resemblance to real people, living or dead, has been consciously dissolved by selecting names, character types, companies, places, events, actions, reactions, or language situations that are strategically independent and antithetical to anyone that the author has ever known or encountered on a one-to-one basis. Should resemblance appear and be proven, they are the result of chance which both publishers and author concede may occur but only unintentionally.

Additionally, any innuendoes leading to the recognition of trademarks, product names or commercially known items, tags, places, numbers, events, or occasions are the property of their respective owners, and there is no implied endorsement even if the reader infers from their placement within the text that there is.

With respect to reader reactions to the Work, the publisher and writer dismiss that the Work’s dialogues and narration that infer societal values are intentionally directed at any person or group and, the characters' attitudes expressed, the philosophies they endorse, or the intensities of the emotions they produce, be they primary or secondary are shared with the reader believing that the reader is emotionally and psychologically stable and can separate reality from fiction. The emotions as they appear are not meant to manipulate readers irresponsibly, or encourage them in anyway other than to meet the mandate of the Work’s entertainment and information purposes. Every effort has been made to prepare this Work to make no representations or warranties of any kind and to assume no liabilities of any kind with respect to the accuracy or completeness of the contents or its entertainment value. Neither the author nor the publisher shall be held liable or responsible to any person or entity with respect to any kind of loss be it faith in the Work’s value, or financial loss resulting from the Works impact.

In summary, the Work is sold with the understanding that the neither the publisher or author is expected to render any type of psychological, legal, or any other kind of professional advice in addition to the product status, nor to provide additional information on how the author created the Work, invented it or otherwise generated it for public consideration. This Work was created and distributed in good faith as the writer and publisher took every possible precaution to exceed what would have been done by any reasonable person to ensure that no other Work was knowingly exploited, or person defamed by the written or printed words, or the mental pictures conjured from these words, or any derogatory thoughts created by the characters’ spoken words or gestures. In all instances of the creation of this Work, the writer believed that no statement was defamatory to any entity whatsoever. In addition, every effort was made in the conceptual, and preparatory stages as well the completion stage of this Work to ensure its originality, and to protect that it is distinguished from any pre-existing Work of a similar or variant nature, In all the research, reading, conversing, meditating and mulling necessary to create this Work, the writer has been conscious of the need to free it from any connections to other Work of copyright in existence.

The publisher has completed a thorough analysis of the entire Work’s content and conducted extensive and intensive fact-finding missions as to the veracity of the writer’s cautions and claims, of the Work’s integrity, and now refers all libelous and slanderous contentions or claims of copyright infringement to the writer who indemnifies and holds harmless the publisher against any and all claims or actions arising out of a breach or alleged breach of the foregoing warranties. (Note: an alternative to the final sentence would be: The publisher has completed a thorough analysis of the entire Work’s content and conducted extensive and intensive fact-finding missions as to the veracity of the writer’s cautions and claims as to the Work’s integrity and sources, and asks that any libelous or slanderous contentions, or claims of copyright infringement be sent directly to the publisher’s legal department responsible for intellectual property, including patent, trademark and copyright, internet and e-commerce, and book publisher bankruptcy.)

Declaimer To Disclaimer
Important Legal Documents should not contain ambiguous statements or clauses, or be satirical in their nature. If they invite misinterpretations or confusion, they could generate a lawsuit. (Yikes!) Note that the above “purgatory disclaimer” is a satire. (Really!) Most of the time a disclaimer is a legal statement that absolves someone of liability for any and all aspects of Work they have created. Creating a disclaimer doesn’t mean that the person who creates it has solved all their potential legal problems. If you want that kind of disclaimer statement, you should hire a lawyer (a literate one) to write one for you to ensure the accuracy of the legal wording for the laws of the country that governs you. Remember the last big copyright infringement legal settlement cost the loser $125 million.