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.