Saturday, December 18, 2010

Could I Be Liable for Libel in Fiction?

First, by way of reassurance, you should keep in mind that libel in fiction is rare.  Considering the vast number of novels, short stories, and satirical works published every year, successful libel suits arising out of fiction are few and far between.

In theory, the circumstances that can give rise to a claim are fairly obvious:  a character in a work of fiction is interpreted by readers to be a depiction of an actual living person; the character is depicted as behaving in an unsavory manner; and the living person contends that he/she never engaged in such behavior.  Plaintiffs have ranged from clearly named public persons to obscure (and even considerably disguised) acquaintances of the authors. This interesting ongoing case involving an episode of Law and Order is fairly typical; according to The Wall Street Journal it is the first libel in fiction case to survive summary judgment in New York in nearly 25 years.

You do not libel someone simply by depicting him or her in fictional circumstances.  Libel requires a false and defamatory statement of fact "of and concerning" an identifiable living person (or business entity).  If real people are depicted in your work only as engaging in acts they actually engaged in, there is no "falsity."  If real people are depicted in your work only as engaging in acts that are not at all untoward, there is no reasonable claim for that your work is "defamatory."  (Of course, your model's view of whether he or she has been held up to shame and ridicule may differ markedly from yours.)  Finally, if readers would not understand the statements you are making about your fictional character to be statements about a real person, then the statements are not "of and concerning" that person.

Rodney Smolla, the author of one of the two leading treatises on defamation, has neatly summarized the spectrum of risk:
When an author wants to draw from a real person as the basis for a fictional character, there are two relatively "safe" courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character's conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character's reputation, but make substantial efforts to disguise the character . . . to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person's attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.
The courts have struggled with the question of when statements in a fictional work should be deemed "of and concerning" a real person with similar attributes.  In the most plaintiff-friendly decisions, the courts have said that a jury need only determine whether "the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant." Here is one such case; note, however, the court's extensive itemization of similarities between the plaintiff and the character in order to justify its decision.  Other cases, such as Welch v. Penguin Books, have been far more protective of writers, holding that "identification alone" is not a sufficient basis for imposing liability, and that the jury must instead be "totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all."

How do you avoid defaming someone with your works of fiction?

1.  Don't use your published work to settle scores with others.  Reserve your vengeance for your diary or private notebooks.  If you suspect your readers will recognize your fictional villains as the real-life individuals whom you used as models, then more fiction and less faction may be in order before you publish.

2.  If you model a negatively portrayed character after a real person, change as many identifying details as you reasonably can:  name, place of residence, age, physical description, personal background, occupation, relationships with other characters -- even the character's sex or ethnicity.
Sidebar:  The 1979 California case of Bindrim v. Mitchell illustrates the challenges of disguising a character while retaining the essential elements of the story you want to tell.  Gwen Davis Mitchell, the author of the novel Touching, had attended a series of real-life therapy sessions conducted by Dr. Paul Bindrim.  As a condition of participating, she had signed an agreement in which she agreed not to write about the sessions.  When Mitchell later wrote her novel, she included a character, Simon Herford, who conducted marathon nude therapy sessions and occasionally used less-than-chivalrous four-letter words.  Actually pretty mild stuff by 2011 standards.  The fictional Herford not only had a different name from Dr. Bindrim, but Mitchell also gave him a different physical appearance and a different professional background.  Nevertheless, the court found that Herford was recognizable as Bindrim to at least some of his colleagues, and therefore, to the extent that readers understood the novel to be making statements about Bindrim that he could prove to be false and defamatory, Bindrim could recover from Mitchell for libel. Here is an amused and amusing People magazine account of the dispute.  Ultimately, Dr. Bindrim obtained a substantial judgment against the novelist and publisher, which was upheld on appeal.  (Full disclosure: my firm was involved on behalf of the defendants at the appeal stage.)  The existence of the contract was an unusual twist and certainly complicated the defense, but the case stands as a warning about the considerable care that must be taken to distance fictional characters, who are depicted as misbehaving, from real individuals who may have inspired those characters.
3.  Don't use a name for your villain that echoes or conjures up the name of a real person on whom the character is based, e.g., Donald Knight should not be renamed Ronald Day in your novel.

4. Disclaimers can't hurt.  You will frequently see in the front matter of novels a statement such as:  "This is a work of fiction.  Names, characters, places, and incidents are the products of the author's imagination or are used fictitiously.  Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental."  A disclaimer won't really protect you if there is evidence that the similarities are not "entirely coincidental."  Nevertheless, a disclaimer gives a lawyer defending you something specific to point to in order to underscore to the court that "this work is presented to the world as 'fiction' not as a factual account."  And, remember, under the law, a reasonable reader would have to understand a statement about a person as a "false and defamatory" statement of fact for it to be libelous.

5.  Keep in mind that (with rare exceptions I won't venture into here) you can't libel the dead.  Basing a character on the dearly or undearly departed is unlikely to give rise to a problem.  (But keep in mind how your dead character interacts with other characters, who may have counterparts among still-living real individuals.  For example, consider a plot line where a character -- based on a real though dead person -- is depicted as a murderer, and his fictional brother is depicted as failing to disclose the crime to the authorities; a real-life brother of the real-life, identifiable model for the killer character might be heard to complain.)

6.  In some instances, the fact that the fiction is so far-fetched has worked to the author's benefit, giving rise to  a successful argument that no reasonable reader could possibly conclude that the defamatory statements were statements of fact, even though a reader might conceivably associate the character with a living person.  See the kinky case of Pring v. Penthouse.

7.  Remember that businesses and organizations can be defamed, too; so take care to avoid the false implication that an identifiable real entity has engaged in bad acts.

8.  If you have doubts or concerns about the way you have modeled a character after a living person, raise them with your editor or the publisher's in-house attorney before the work goes to press.  With a little rewriting, libel in fiction issues are almost always resolvable without significant detriment to a story line. You can still write a biting roman a clef even in these litigious times.

On my bookshelf of books on law for writers, The Writer's Legal Guide and The Rights of Authors, Artists, and Other Creative People have the best discussions of libel in fiction.  Online, Julie Hilden has a good post focusing on a disturbing Texas case.  And here are posts from two other practicing attorneys with useful background on the issue, one by David Hudson and an older one by Alan Kaufman.

Again, don't over-sweat this.  Libel in fiction is an infrequent problem and one that can be readily avoided with some advance thought about how you are using real-life models for your fictional characters.  Far more challenging and more common is the problem of reducing the risks of a defamation action arising from a tell-all memoir -- a subject that I will return to in a later post.

30 comments:

  1. I understand the need to drastically change a character so there is no semblance of an actual person - this I have done. However, the circumstances can be related to true events in my life, which reflect upon the fictitious character. Can these influences of events/action be held within the same libel regard as a character if someone can draw the line of action to a real person?

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  2. Rebecca, thanks of the comment. I can't give personalized legal advice through a blog because of various attorneys ethics rules, etc. Writing fictionally about real people is a fairly tricky area of the law, and, if you have specific questions, you might do well to seek the advice of an experienced attorney in your jurisdiction before publication. If you have difficulty locating a suitable attorney, you might try the resources listed at this prior post. http://www.rightsofwriters.com/2010/12/44-places-where-writers-and-other.html

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  3. Another useful post. Question for you - do the same rules apply for places? I've been tossing up whether to send my characters to a real university or a fake one. Nothing particularly bad happens at the uni, so does it matter if I refer to it by its real name?

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  4. Thank you for this informative post. Can you comment on fictionalized portrayals of living political figures? It's my understanding that Robert Coover's 1977 untoward portrayal of the then living Richard Nixon escaped lawsuit because it was obviously not factual.

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  5. I'd be interested to know if two fictional characters can discuss a real life character and have opposing views, along the lines of

    A: 'I think his work is turgid rubbish.'
    B: 'Well, I disagree... it's brilliant'
    etc

    Notwithstanding that you can't give personal advice, I think this is a different angle on the central question of your original article.

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  6. Thanks for the post. Really helpful. The scenario I am thinking of is a little complex because it involves living people, some of whom were serving police officers at the time of the action, conspiring to murder someone and to cover it up. The motive for killing was a risk that the victim was about to expose police corruption. It is a 25 year old case, it has been investigated 5 times and each time the case has collapsed, because of police corruption. The story has been reported but there are key relationships and dynamics that I think might be better realised as fiction. What would be your advice on how to draw the characters in this story in a way that will not be libelous? And is there a juicy pay-off in any libel action in so far as it might be tantamount to an admission that the events depicted in the fiction were in fact true?

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  7. Can a fictional character say something defamatory or libelous about a real person?

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  8. How does this apply to a work that is admittedly Roman a clef?

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  9. Mark - I have a question:

    In regard to writing a novel, when is it that an author does own your own life story and their impression of the people or events around them?

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  10. What about defamation of a location? I'm from the Detroit area and as most of us are aware, some pretty bad things have been going on there in the last 40 or so years, getting worse as time goes on. What's the chance of being sued by a cash-strapped and desperate municipality because they don't like you setting a novel in their city because they want to cut down on 'negative press'? I'm not speaking in terms of badmouthing Detroit, for example, stating that it's a terrible place that should burn to the ground, no - not at all, but in the same light, not trying to sugar-coat the reality of what's happening there.

    What's your take on this?

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  11. I may be late for you to still be answering questions. But anyway, here goes. I have a company the "good guy" works for but have found out that the company really exists. They kind of do the same thing as the character. Libel? The company is neither good or bad. Just mentioned. Also, I have Homeland Security and National Security Agency in it. Depicted as what they do in real life, the good guys, as well. The main bad guy's company is the name of an actuall person (that I did not know existed until today). He is known to the public that listens to his music and seen him on certain TV shows.Libel?

    Thank you so much
    Cindy

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  12. Libel in fiction can be rare, but there are cases that songs become issues in libel, especially if it is taken internationally or without the songwriter's consent. Becoming a writer is now one of the trending jobs in manila, so always make sure to be lawfully aware about it.

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  13. If the real person was a public figure (long dead) but was suspected of being involved in the commission of a murder, is it libelous to write the character as a murderer?

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  14. Wow..what to say. My new novel reveals a long held urban legend relating to two deceased powerful women with VERY well known husbands. I tell the secret through an account of two women who purportedly knew the secret but I do name their names and weave it into a fictionalized account of the long held urban legend...now I am worried because I use their names and Pandoras box. What are my risks of being sued by the VERY powerful remaining family. Thanks.

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  15. Can you create a fictional character using the words of a range of people from the internet but not naming them? The people are just ordinary people talking about their lives.

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  16. I tripped across this post because I am writing a fictionalized universe of conspiracies and urban legend. A popular novel similar would be Dan Brown's Da Vinci Code (although a closer match for my case would be the Illuminatus Trilogy). There is clearly a long history of poking at public and secret societies and weaving tales involving them. Nobody seems to want to actually say that it is legal, but it does have a strong showing on bookshelves.

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  17. What if the libel is entirely accidental? For example I write a novel about a devout royalist who changes her name by deed poll to Queen Elizabeth The Second, then it comes about that such a person really does exist. The link between the two would be very obvious even though entirely coincidental.

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  18. Could I be liable for libel if everything I wrote about has been personally disclosed to me by the person in question and I could prove it

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  19. Can someone create a piece of writing, in this case a brochure, that appears written in the first person of a historic deceased person, but obviously is not the words of that person. The text is mainly a timeline of that person's life,with some opinions added (ie- I loved my alma mater) described as if they were telling it. Is this okay?

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  20. Hi there, this post is very helpful for a story I am writing that is based on true events. I see your post is from a few years ago so I just wanted to see if you're still open to answering a few questions about the subject matter?

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  21. I just want to be clear on the process I want to follow.

    I understand just using a place -- especially in a good light and not bad -- would mean the probability of a libel suit is rare, but I want to know if I should discuss with someone of an establishment about the use of their location in a work of fiction?

    What I am concerned about in regards to use is the fact that one of my characters is a student in a private school in New York. There is a location I found that fits most of what I picture in my head. Should I contact them and discuss the use, or just continue with usage?

    It's a very minor part to my story, but I don't want anything coming back to bite me on the butt.

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  22. Mark, I'm writing a fictional story that makes use of real events and real people from the 1880s. However, the story I am writing is entirely fictitious, imagining a relationship between two of them that results in what actually did happen. All relatives of these folks are long dead save great-great grandchildren, and the stories are in common use in history books locally. Any problem with using their real names?

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  23. this really helped thank you.........

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  24. I want to write my own love story but me and my girlfriend is not in relationship now. so is it legal to write true story.

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  25. This may sound silly but I write satirical poetry about living and very public politicians. What's my potential liability?

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  26. Mark, check out Vrasik v Liebel, a Florida appellate case (2013).

    Geisler v. Petrocelli is also an interesting case (616 F.2d 636); and Springer v. Viking Press (457 N.Y.S.2d 246)

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  27. I am writing a fiction. An actual current famous band is depicted in the second half of my story as themselves (using real actual names), like an accidental encounter that builds up the plot to the climax. However, the events that occurs are fiction and in no way engaging in acts that are untoward. The acts are more towards comedic and heroic. Is this legal? Will I get sued by the band?

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  28. Hi Mark.

    Superb article. I hope to publish a short story collection this Sept. One of the stories is about poor Berry Berenson, who I never met but admired greatly. She was on Flight 11 that day. After some exhausting research I wrote about what her final night might have been like, using dialogue she might have spoken to her sis Marisa. And here's the problem: Marisa is still alive. I tried getting in touch with her with nada results. I may have to change her first name.

    This work is meant as a tribute to Berry. Any thoughts on this from you (or anyone else) will help.
    Thanks!

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  29. I'm writing a novel where I, personally, am the protagonist and I fall in love with a famous actress, whom I mention and describe by name. My character treats her with the utmost respect; he worships her, frankly. Nothing harmful or libelous. In fact, in the end, the famous actress dumps the protagonist (me) like a bad disease (not me dumping her) so that she can go in to marry her real life (outside the book) current husband, who she adores. She is painted in the most positive light imaginable, right down to complimenting her teeth.

    Based in this article, I assume all is hunky-dory, right? Thanks. Sven.

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