The Legal Consequences of Using Real People in Fiction
Ask a Lawyer Series
When Fiction & Reality Collide
Attorney Lloyd J. Jassin
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 that happen in the book. I'm worried after the book becomes successful, that he'll come back and try to take a stake in the millions. What can I do to prevent this? - GWB
A: So you ask, “How do you discourage a prototype from becoming a plaintiff?”
A basic understanding of libel law Libel is helpful. Libel is defined as a false statement of fact “of and concerning” a person that damages their reputation. If you were to say that fiction, which describes a world that doesn't actually 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, if you haven’t completely disguised him, the potential for trouble exists. 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 be an effective device to 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 for Miss Pring, awarding her $26.5 million in damages. On appeal, however, the Court of Appeals reversed the decision; holding that no reasonable person could believe that was described was actual facts. Be outrageous. Embrace tastelessness – if done properly 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 it 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! With regard to 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 is 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 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 character 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 important 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 to a libel lawsuit based on fictionalization. Speaking of Frankenstein, the dead cannot be defamed. As such, 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 law of defamation is not concerned with who you intended to target, but 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 publication of truthful information is generally considered a full 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, due to free speech considerations, courts historically construe publicity rights narrowly. But, that’s the subject of another Q&A.
If you feel uncomfortable with the legal minefield of libel, right of privacy and right of publicity law, consult a publishing attorney. A publishing attorney can evaluate or vet your manuscript, and suggest ways to mitigate or avoid many of risks of writing about real people and actual 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."
Comment: If you conflate fact with fiction, give some thought to the words you stuff into your character's mouth. If you don't, it's not hard to imagine your character's real life double doing something dreadful. While the First Amendment may be the patron saint of thinly veiled fiction, it can't stop a punch in the nose.
Disclaimer: This article discuss legal issues of general interest and is not designed to give any specific legal advice concerning any specific circumstances. Libel law is fact specific. Further, is no single body of law applies. Today, information travels far and wide. Many countries do not recognize the protections we give authors and publishers. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.
Smith v. Stewart (Red Hat Club Case)
Pring v. Penthouse
Bindrim v. Mitchell (case ended badly for the author)
Carter-Clark v. Random House (Court of Appeals)
Carter-Clark v. Random House (Supreme Court)
"I don't get hurt or bleed ; hair doesn't muss, it's one of the advantages of being imaginary." - Ted Baxter in the The Purple Rose of Cairo
"All literature is gossip." - Truman Capote
"Novelists are inspired gossips." - Margaret Drabble
“But we are the sum of all the moments of our lives---all that is ours is in them: we cannot escape or conceal it. If the writer has used the clay of life to make his book, he has only used what all men must, what none can keep from using. Fiction is not fact, but fiction is fact selected and understood, fiction is fact arranged and charged with purpose." Thomas Wolfe's Preface to Look Homeward Angel