When Art Imitates Life: Suing for Defamation in Fiction

CMLP received an email from a novelist asking us how far she can take the advice, "write what you know." Would she risk being sued for libel if she based a character in her fictional work on a person she knows and dislikes in real life? Could she be held accountable if her fictional work were actually semi-autobiographical and described not only her own real-life actions, but also those taken by others?

The answer to these questions is that it depends. The mere fact that a novel is labeled a work of fiction will not automatically insulate its author and publisher from a suit for defamation.  Even if names or events are changed, libel in fiction is actionable if acquaintances can recognize the real-life individual in a character that is depicted in a defamatory manner. Well-known defendants in these types of defamation suits have included the publisher of the novel Primary Colors and the producers of the movies Sandlot and Hardball.

In addition, most states have laws that limit a person's right to publish private facts about another individual, and so an author potentially exposes himself to legal liability when he publishes highly personal information about another without that individual's permission in a roman à clef.  Likewise, most states recognize an individual's right to stop someone from using his name, likeness, and other personal attributes for exploitative purposes, such as advertising goods or services.  The CMLP Legal Guide on Publishing Personal and Private Information and Using the Name or Likeness of Another contains more information about these torts.

In order to prove defamation, a plaintiff must provide convincing evidence of a defamatory statement's falsity.  And, according to the seminal cases New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Time Inc. v. Hill , 385 U.S. 411 (1967) and their progeny, the "truth" of such a statement, if it can be proven, is an absolute defense against a claim of defamation.  It is interesting to note that in most states the law does not require that a statement be perfectly accurate in every conceivable way to be considered "true."  In fact, courts have said that some false statements must be protected in order to allow the dissemination of truthful speech.  Under the substantial truth doctrine, minor inaccuracies are ignored as long as the inaccuracies do not materially alter the substance or impact of what is being communicated. 

Libel in Fiction: The Red Hat Club

Like the woman who inspired this post, aspiring novelists who plan to "write what they know" should heed the warning of a 2009 libel case from Hall County, Georgia.  In November of that year, a Georgia jury returned a $100,000 verdict for plaintiff Vickie Stewart, finding that a character in The Red Hat Club, the 2003 New York Times best-selling novel by Haywood Smith, had been based on Stewart's life and inspired by Stewart's involvement with the Red Hat Society  (a real-life organization of women over 50 who dress in red hats and purple clothes and get together with the goal of celebrating and enjoying life to the fullest).  The case went to the jury on claims of defamation and publication of private facts (though the jury ultimately rejected the publication of private facts claim) because the Judge found over two dozen specific similarities between the lives of the plaintiff, who had known the novel's author for over 50 years, and the character "SuSu," a middle-aged flight attendant who figures prominently in the book.

The similarities between "SuSu" and Stewart included where the two grew up, their occupations, the fact that both women became engaged to men who were already engaged to other women, their pursuit of financial judgments from their ex-husbands, and the circumstances of their first husbands' deaths.  According to the complaint in this case, Stewart took issue with the novel because it portrays SuSu as an alcoholic who engages in lewd and lascivious behavior, both in private and on the job as a flight attendant.

Under Georgia's law of defamation, libel exists when a publication contains false and defamatory statements about a plaintiff that are communicated to a third party, when the person making the statements either negligently or maliciously fails to use ordinary care in making such statements, and when the plaintiff is injured by the statements. Because Stewart is not a public figure, her attorneys needed prove only that Smith acted with negligence in writing the book. 

Novelists may wonder whether some sort of disclaimer can shield them from liability.  While a disclaimer can help a publisher or author demonstrate lack of malicious intent and demonstrate to readers that the work is fiction (and thus assist in defending against a libel suit), a disclaimer will not prevent readers from interpreting a fictional work as containing defamatory falsehoods if the information is specific enough and reasonably identifies the plaintiff.  Although The Red Hat Club contained a disclaimer stating that it was a work of fiction and that the real-life Red Hat Society had not endorsed the novel, it clearly did not immunize Smith from liability.

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