Jury Says Fictional Character Can Be Libelous

from the that-doesn't-seem-right dept

Tue, Nov 24th 2009 1:56pm — Mike Masnick

Plenty of fiction authors base their characters on real life people. But, perhaps they need to be more careful. A jury has ruled in favor of someone who claimed libel against an author for supposedly writing a character "inspired by" a former friend. That former friend was not happy about the portrayal, in which she was a "sexually promiscuous alcoholic." This seems like a really bad precedent. Fiction authors quite frequently take people from real life, but then exaggerate them to extremes. But if that opens them up to potential libel charges, that seems quite ridiculous.

For example, I once read a book that had a character that was based on my father, written by someone who knew him many, many years ago (in the copy the author sent my father, it was inscribed with my father's name, followed by the character's name in parentheses). It was entertaining, to me, to see such a character who certainly resembled the rather content, laid back, unflappable nature of my Dad... except at the end where the character went crazy and had to be locked up. That, clearly, did not happen in real life, but it never struck me as "libelous." It was obviously just a fictional story, where the author needed the character to do something and act in a certain way. That's why it's fiction. Besides, for it to be defamatory, you have to be able to show the harm caused, and that's only going to happen if a lot of people know that the character is supposed to be the real person, which seems unlikely in most cases. In the meantime, though, if you're writing a fictional story, be careful who you base your characters on.

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Filed Under: characters, defamation, fiction, libel

28 Comments

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Anonymous Poster, 24 Nov 2009 @ 2:00pm

They need to appeal that ruling. That's just ridiculous.
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Valkor, 24 Nov 2009 @ 2:01pm

Other precedent?
How is this any different than Citizen Kane? If Hearst couldn't get damages from Orson Wells, how can this broad?
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Robert Ring (profile), 24 Nov 2009 @ 2:03pm

Wow. Think of all the authors that could be sued under this logic.
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Marcus Carab (profile), 24 Nov 2009 @ 2:03pm

So I guess the new writer's maxim is "Don't write what you know - you might get sued."
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Ima Fish (profile), 24 Nov 2009 @ 2:07pm

I was waiting for this to show up here. To think that libel laws trump the 1st amendment is simply beyond scary.
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ChurchHatesTucker (profile), 24 Nov 2009 @ 2:15pm

$100,000?
I guess Vicki Stewart won't be hurting for booze any time soon...
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Andrew F (profile), 24 Nov 2009 @ 2:25pm

By filing this case, more people than before now suspect Vicki Stewart of being a "sexually promiscuous alcoholic". That's hardly a win.
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ilia (profile), 24 Nov 2009 @ 3:19pm

Re:
My thoughts exactly!
People need to learn that suing can't get content to "disappear" , it does the exact opposite.

Known now as "Streisand effect" XD

$100,000 vs. ruined reputation and no employment prospects...
+ most of the money is probably in the lawyers pockets.

The character did not have her name, so if she just kept quiet no one would have known.
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Anonymous Coward, 24 Nov 2009 @ 3:23pm

Re:
>By filing this case, more people than before now suspect Vicki Stewart of being a "sexually promiscuous alcoholic". That's hardly a win.

It is more like by filing this suit she admitted that she is a "sexually promiscuous alcoholic". This should get bounced on appeal as long as the author didn't clearly link the fictional character to the real life individual.
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Judsonian, 24 Nov 2009 @ 3:40pm

Or .....
don't tell the "subject" they inspired the character (or anyone else). They would have to prove they were the inspiration which would expose themselves to their indiscretions. Which is "not" liable.
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Marcus Carab (profile), 24 Nov 2009 @ 3:44pm

What about...
What about the classic disclaimer? Any resemblance to any real people living or dead... and so on.
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another mike (profile), 24 Nov 2009 @ 4:37pm

Re: Re:
How about this for leveraging the Streisand Effect?

"Hey, hey, hey. Check it. I'm gonna (let you finish) write this story and you drum up all kinds of noise pretending you're pissed about how this one character is like you, but is bad so everyone will think you're bad too. Yeah, yeah, and then you pretend to sue me and we'll get our names in the news and people will buy my book to read about your character. It'll be rightous!"

That's what I think is really going on.
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C.T., 24 Nov 2009 @ 4:54pm

Libel Per Se
Besides, for it to be defamatory, you have to be able to show the harm caused, and that's only going to happen if a lot of people know that the character is supposed to be the real person, which seems unlikely in most cases.
------------------ Legally speaking, it is not necessary to prove harm in order to establish liability under certain circumstances. Many states never require proof of harm when it is a situation of libel (as opposed to slander). Even in those states that sometimes do require proof of demonstrative harm, that proof is not necessary when the allegedly defamatory statement is "libelous per se" - which means that the statement is defamatory on its face (there are some generally agreed upon categories of speech that are considered libelous per se...one being "imputing unchastity on a woman" [seriously]). Having read very little about this case, it seems that the plaintiff likely benefited from this presumption. In my opinion this presumption of harm is highly questionable from a policy perspective. There are actually a couple of other cases from various circuits regarding libel and fiction...There was a case in NY last year in which a plaintiff was awarded $15 million for a fictionalized portrayal of some real life events in an episode of Law & Order. Prior to that, though, libel in fiction cases had generally not fared very well for the plaintiff. Without reading the book (or the court's decision) it's hard for me to really say how I feel about this case. I can certainly imagine some scenarios where a purported "fictional" account could rise to the level of defamation, but those would be very extreme circumstances.
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bd, 24 Nov 2009 @ 6:13pm

cat is out of the bag
Great. Now everybody knows she's a promiscuous alcoholic
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Austin Mullen, 24 Nov 2009 @ 6:26pm

Isn't the standard boilerplate these days "This is a work of fiction. Any similarities to persons or events, living or dead, is entirely coincidental"?
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Your Friendly Neighborhood Librarian, 24 Nov 2009 @ 7:33pm

How to write fiction advice
Wow. So I guess that Anne Lamott's advice in "Bird by Bird" on avoiding libel is no longer valid? -- "The best solution is not only to disguise and change as may characteristics as you can but also to make the fictional person a composite. Then throw in the teenie little penis and anti-Semitic leanings, and I think you'll be Okay."
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Anonymous Coward, 24 Nov 2009 @ 7:33pm

Re:
They already did.
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Christopher (profile), 24 Nov 2009 @ 7:36pm

Re:
It doesn't, and the judge should have NULLIFIED that jury verdict simply by saying "First Amendment > libel laws!" and moved on.

That the judge didn't do that is suspicious to me... I mean, anyone with a brain knows that if this gets to the federal courts, it WILL be overturned.

Judge could have saved us all a lot of time and money by simply throwing the case out and forbidding the case from being appealed (which, they can do in civil cases, though exceptionally rarely).
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so what, 24 Nov 2009 @ 8:01pm

the truth hurts
so in order to say legally that my fictional character is based on a real human you have to actually be that person or act that way ...i see

anyone see the sheer stupiidyt of Intellectual property mentally challenged ( retards ) yet
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HOW can i now write ANY BOOK, 24 Nov 2009 @ 8:05pm

no one can write ANYTHING NOW
yea like how do you write a book that contains any characters as the odds are someone has characteristics similar.

STUPID sad dumb and unenforceable at large rulings make for more dissent in law and of law.
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Anonymous Coward, 24 Nov 2009 @ 9:18pm

Libel law traces its roots back several hundreds of years, so this is hardly a new subject.

BTW, libel law and intellectual property bear no relationship.
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zm, 24 Nov 2009 @ 9:24pm

Re: What about...
"Any similarity to actual persons or events is hilarious."
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A-dub, 25 Nov 2009 @ 5:26am

Say goodbye to artistic license....
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DB, 25 Nov 2009 @ 5:44am

Fictionalization
Fictionalization cases actually have been around for years. It seems to be a more common issue in right of privacy/publicity cases. The key is whether there is enough detail for there to be identification, despite changing the name.
And I wonder -- does anyone really believe disclaimers?
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Anonymous Coward, 25 Nov 2009 @ 6:08am

libel law timmay
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spaceman spiff, 25 Nov 2009 @ 6:35am

life imitating art
It reminds me of that ridiculous disclaimer you see at the end of every movie made - "The resemblance of any character in this movie to actual persons past or present is purely coincidental", or something like that. Perhaps some version of this will become standard for all works of fiction. The thing about the "moron in a hurry" defense, is that most people seem to be morons in a hurry...
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Almost Anonymous (profile), 25 Nov 2009 @ 7:53am

Re: Re:
But because she filed a lawsuit, and now everyone -does- know, you could almost say her lawsuit is retroactively valid!
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DH's love child, 25 Nov 2009 @ 10:03am

Re: Re: Re:
"But because she filed a lawsuit, and now everyone -does- know, you could almost say her lawsuit is retroactively valid!"

But if she really IS a orimiscuous alcoholic then the author has TRUTH on their side and there's no libel...
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