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.

Helpful Links:

• For the law on defamation in your state, please use the State Law: Defamation section of CMLP’s Legal Guide.
• For tips on avoiding liability for libel in your autobiography or memoir, see Worldclay’s When You’re Liable for Libel in Your Memoir.
  
• You may also want to check out a blog post called "Rage-Writing as Memoir," in which Lynne Scanlon of The Publishing Contrarian discusses the risks of harm to your own reputation that may result from writing of a memoir fueled by anger.