Jury Says Fictional Character Can Be Libelous

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

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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Comments on “Jury Says Fictional Character Can Be Libelous”

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Christopher (profile) says:

Re: 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).

ilia (profile) says:

Re: 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.

another mike (profile) says:

Re: 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.

Anonymous Coward says:

Re: 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.

C.T. says:

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.

Your Friendly Neighborhood Librarian says:

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.”

spaceman spiff says:

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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