Libel in Fiction

When Fiction & Reality Collide

The Legal Consequences of  Using Real People in Fiction

This article originally appeared in The Huffington Post.

Q: My main character is loosely based on a real person. I mean, that's who inspired me. I never identify him by name (he's my ex-friend), and I've made up 90% of the events in the book. After the book is published under my name, I'm worried he'll sue me. What can I do to prevent this? - GWB

A: So you ask, "How do you discourage a real-life model for a character in a literary work from suing?"

A basic understanding of libel law is helpful. Libel is a false statement of fact "of and concerning" a person that damages their reputation. So if you were to say that fiction, which describes a world that doesn't exist, was incapable of defaming a real person, it would be logical but wrong.

Happily for novelists (and The Weekly World News), when the model upon which a fictional character is based sues, generally, their claim doesn't get not survive summary judgment. For a novel or other fictional work to be actionable, its detail must be convincing. The description of the fictional character must be so closely aligned with a real person that someone who knows that person would have no difficulty linking the two. And, there must be an implicit belief that what the author said – notwithstanding her denials – was true. What about a fictionalized autobiography? If your memoir is fictionalized, but you don't make that clear to readers, there's no veil of fiction to hide behind for purposes of libel law.

Despite the breathing space the First Amendment affords writers, not all libel-in-fiction lawsuits are resolved in favor of the author or their publisher partner. For example, in 2009, in the "Red Hat Club" case, the plaintiff was awarded $100,000 in damages by a Georgia court for a fictional portrayal modeled on her. The "original" claimed that her fictional counterpart, falsely depicted in the bestselling novel as a sexually promiscuous alcoholic who drank on the job, defamed her. From a libel defense perspective, this drawn-from-life portrayal failed, in part, because the author included personal characteristics that made the plaintiff recognizable and mixed them with other traits that were false and defamatory but still believable.

Now back to your question. Are you sure you never identify the real person who inspired your main character? Aside from his name, can he be identified from his ethnicity, appearance, historical or other details found in your book so that someone who knew him (or knew of him) could identify him as a character in your book? While you may not identify your ex-friend by name, the potential for trouble exists if you haven't completely disguised them. Is your friend a public official or public figure? If so, he has another hurdle to jump. Unless he can prove by clear and convincing evidence that what you wrote was deliberately or recklessly false, there's a good chance -- but no guarantee -- you'll be excused from liability under what's known as the "Actual Malice Standard."

Merely changing the name of your friend isn't enough. You might consider transforming him beyond recognition. Why? Courts consider plausibility. A broadly drawn caricature of your friend, which is difficult to reconcile with your ex-friend, can effectively stave off a libel lawsuit. For example, Kim Pring, a former Ms. Wyoming, sued Penthouse over an article that described Ms. Pring's ability to cause men to levitate by performing oral sex. Initially, the Federal District Court found Miss Pring, awarding her $26.5 million in damages. However, the Court of Appeals reversed the decision on appeal, holding that no reasonable person could believe what was described as actual facts. Be outrageous. Embrace tastelessness – if done correctly, it can take the chill out of free speech. [Note the italicized "if"]. If done improperly and the hypothetical reasonable reader thinks your failed parody conveys actual facts, the First Amendment may not be available to you. "Obvious cues," like levitation or time travel, can help telegraph what is First Amendment-protected fiction from fact. When in doubt, have the book vetted by a publishing attorney.

Here's a run-down of a few techniques that can minimize the chance of getting sued for libel in fiction: (a) disclaim; (b) disassociate the doppelgänger from its real-life counterpart; (c) depict but do not disparage; and/or (d) wait for the real-life person to die before publishing your novel or story. Important! About option (d), revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer.

Disclaimers, while helpful, are, by nature, self-serving. While a disclaimer cannot insulate you or your publisher from a libel suit, it may support the defense that identification with the real person in your novel is unreasonable. The words "A Novel" in the subtitle of your book are considered by some attorneys to be the best form of disclaimer. In addition, a full disclaimer should appear on the reverse title page of your novel or be skillfully integrated into the introduction or preface of your book.

Change the physical characteristics of your main character enough to disguise his identity. The risk of being sued is further reduced if your main character is treated as a likable rather than a vicious and unscrupulous evildoer. While it is very tempting to retaliate against those who have inspired us (or harmed us), if your protagonist isn't likable, it is even more critical to disguise his identity.

Create a Frankenstein monster. Combine or clone several people's physical traits and biographical facts so no single person's actual DNA appears in your book. If the work is not "of or concerning" an identifiable person, you have a complete defense against a libel lawsuit based on fictionalization. Speaking of Frankenstein, the dead cannot be defamed. They make terrible plaintiffs -- but excellent targets for vengeful authors. Why? Under U.S. libel law, if the original is dead, s/he can't sue for libel. If this last suggestion gives you an additional reason to outlive your literary prey, consider it my gift to you. And remember, he who laughs last laughs best.

I would be remiss if I did not bring up three other legal horrors. First, the defamation law is not concerned with who you intend to target but with who gets struck by your barbed arrow. What that means is unintentional defamation is actionable. "Woops!" is not a defense to libel. If you shoot an arrow in the air, where it lands, not where you intended it to land, is all that matters. Lawyers who vet, and writers who write, need to watch out for innocent literary bystanders.

While publishing truthful information is generally considered a complete defense to libel, private individuals can sue for highly offensive or embarrassing truths. So, if your book goes too far and reveals intimate areas of a person's life – sexuality, family life, medical procedures, and mental (in)capacity – you may invite a right of privacy claim. Are there defenses? Perhaps.

The right of publicity involves the unauthorized use of a person's name or likeness for commercial gain. It is related to the right of privacy. Fortunately for novelists, courts historically construe publicity rights narrowly due to free speech considerations. But that's the subject of another Q&A.

Consult a publishing attorney if you feel uncomfortable with the legal minefield of libel, right of privacy, and right of publicity law. A publishing attorney can evaluate or vet your manuscript and suggest ways to mitigate or avoid the risks of writing about real people and events.

Expect to pay a publishing attorney what you'd pay a good book doctor. As they say, "An ounce of prevention is worth a pound of cure."

ABOUT LLOYD J. JASSIN. Before becoming an attorney, I worked for Macmillan Publishing, Simon & Schuster, and St. Martin's Press in publicity and marketing positions. As a publishing attorney, I consult with authors, literary agencies, and publishers on business and legal matters, including contract negotiations. My practice focuses on publishing and entertainment transactions, copyrights, trademarks, book-to-film deals, merchandise licensing, and prepublication review of manuscripts for media perils such as defamation. I am co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons), now in the process of being revised and updated. I was chair of the executive committee of the Center for Independent Publishing and an adjunct professor at the NYU School of Continuing Study Publishing Program. Presently, I serve on the Beacon Press advisory board. Before starting my own firm, I was an attorney with Viacom Enterprises, the world's largest television syndication company. Before Viacom, I was a trademark associate with Cowan, Liebowitz & Latman. I graduated from Benjamin N. Cardozo Law School and am admitted to practice law in New York and New Jersey.

Contact:
Law Offices of Lloyd J. Jassin
The Paramount Building
1501 Broadway, Floor 12
New York, NY 10036
212-354-4442 (tel.)
jassin@copylaw.com (email)

Disclaimer:   This post discusses legal issues of general interest and is not designed to give specific legal advice concerning specific circumstances.   Libel law is fact-specific. Further, no single body of law applies. Today, information travels far and wide. Many countries do not recognize the protections we give authors and publishers. Therefore, professional legal advice must be obtained before acting upon any information in this article.