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novels
This
page highlights problems with defamation in fiction, including
inadvertant libel through an unlucky choice of names for
fictional characters.
It covers -
introduction
As noted in the discussion of Frank Hardy's Power Without
Glory and Amanda Lohrey's The Reading Group
earlier in this profile, novels and short stories (and other
genres such as feature films, poetry and paintings) are
not automatically and exclusively exempt from defamation
law. A tale about a real person - using that individual's
name or another name - or that could be reasonably considered
as depicting that person may thus attract defamation action.
Such action has posed difficulties for authors, publishers,
retailers and libraries. Apart from enriching the legal
profession it has also provided hours of entertainment,
along with some mirth, for connoisseurs of libel law and
coincidence.
The notion of defamation in a novel or other work of fiction
strikes some as problematical, given that defamation is
typically concerned with publication of a false statement
of fact that is derogatory and that injures the subject's
reputation. Fiction does not purport to be factual, so surely
there can not be a statement of fact - false or otherwise?
In practice courts have recognised that
- audiences
for different genres vary in sophistication or willingness
to interpret depictions as wholly fictional or as thinly
disguised accounts of real people
- it
is desirable to give some latitude to creativity
Novels
for example frequently feature public figures (ranging from
Caesar and Hitler to Margaret Thatcher and Frank Sinatra)
and much of Hollywood has been built around plots involving
familiar faces in public or private places.
The roman a clef - where names and interior decoration
are changed to 'protect the innocent' (or inhibit delivery
of a libel writ) - has a long history. Authors and film
makers may also assume that labelling a work as fiction
gives licence to engage in character assassination or merely
avoid having to be careful.
Many
feature films, for example, are decorated with the rubric
that
This
is a work of fiction. The people, events, and circumstances
depicted are fictitious and the product of the author's
imagination. Any resemblance of any character to any actual
person, whether living or dead, is purely coincidental
Courts
have responded to such boilerplate and to placement of prose
works on the 'fiction' shelves or catalogues by asking the
same questions evident in the earlier discussion of journalism.
Does the audience, for example, reasonably identify a character
as a person in real life. Does the depiction damage that
person's reputation. Was the depiction malicious, deliberately
intended to cause damage and misusing protection provided
to novelists and other creators?
Jurist Robert Sack thus comments that in the US a defendant
who
invents defamatory dialogue or other defamatory details,
uses actual people as fictional characters, or bases fictional
characters on living persons but fails sufficiently to
disguise the characters, so that the fictional characters
are understood to be 'of and concerning' their living
models
may
incur liability.
In Australia and elsewhere the extent of that 'disguise'
- or inclusion of information that indicates the fictional
character is not a real person - usually involves differences
in name, physical appearance and attributes such as marital
status, education, age, occupation or title. Typically for
defamation action to succeed, the real person must have
a reputation to lose and in the words of one US court
the
description of the fictional character must be so closely
akin to the real person claiming to be defamed that a
reader of the book, knowing the real person, would have
no difficulty linking the two. Superficial similarities
are insufficient
That
approach has not always been adopted. One area of difficulty
occurs where an author has unintentionally used a name borne
by a real person. Some courts have held that such an innocent
choice of name for a villain or other character may mislead
audiences into believing that the real person shares the
negative attributes attributed to the fictional person.
Another area of difficulty is in docudramas, 'non-fiction
novels' and other works where the borders between fact and
imagination are blurred.
name problems
Problems with bad luck, sloppiness or sheer naivety in use
of a real person's name can be illustrated by recent fiction
in the US and UK.
Bryson,
a short story published in Seventeen magazine in
1991 by Lucy Logsdon "from southern Illinois",
centres on a conflict between the narrator and her classmate
Bryson, who is characterised as promiscuous. A former classmate
of the author, named Kimberly Bryson, sued Seventeen
for defamation.
The Supreme Court of Illinois in Bryson v. News America
Publications, Inc., 672 N.E.2d 1207 (Ill. 1996) was
unimpressed by the argument that because the story was clearly
labelled as fiction it could not reasonably be interpreted
as stating actual facts about the actual Bryson. Argument
that characterisation was merely an opinion uttered by "a
fictional character about another fictional character"
was also unpersuasive, with the court commenting
The
fact that the author used the plaintiff's actual name
makes it reasonable that third persons would interpret
the story as referring to the plaintiff despite the fictional
label
It
noted use of a distinctive name and setting of the story
in the real Bryson's locale of southern Illinois. It was
thus reasonable for people who knew the real Bryson to conclude
that she and the fictional character were one and the same.
The identification was not as close in Pring v. Penthouse
Int'l, Ltd , 695 F.2d 438 (10th Cir. 1982), cert. denied,
462 U.S. 1132 (1983) where the court considered whether
Penthouse magazine had defamed the real Miss Wyoming
in an item about a fictional Miss Wyoming and a fictional
Miss America contest. The court observed that
The
test is not whether the story is or is not characterized
as 'fiction', 'humor' or anything else in the publication,
but whether the charged portions in context could be reasonably
understood as describing actual facts about the plaintiff
or actual events in which she participated.
In
1974 UK novelist Tom Sharpe featured a television presenter
in his Porterhouse Blue. He had assumed the presenter's
name was purely fictional; unfortunately it coincided with
the name of a BBC employee, who secured £250 damages
plus costs and pulping of the offensive first edition.
Crime writer
Jake Arnott used the name Tony Rocco to identify one of
the nastier characters in his novel Johnny Come Home
(London: Hodder & Stoughton 2006). The bad guy was characterised
as a pederast and contemporary music industry figure named
Tony Rocco. Frederick Were, a singer of unimpeachable respectability,
had been known professionally as Tony Rocco in the time
and place described by Arnott. He took exception to Arnott's
tale.
As part of the settlement the author and publisher
have therefore agreed publicly to set the record straight
and to apologise to the Claimant for the distress and
embarrassment caused to him by their novel. In addition
to making this statement in open court, they have provided
the Claimant with an agreed letter apologising for and
retracting the offending allegations and confirming that
the "Tony Rocco" character in the book was in
no way intended to depict, or otherwise refer to, him.
They have also undertaken not to repeat their defamatory
allegations concerning the Claimant and to use their best
endeavours to recall all copies of all and any editions
of the novel which include the name "Tony Rocco",
and have agreed that the name of the "Tony Rocco"
character will be changed for all and any future reprints
of the offending novel. They have also agreed to pay the
Claimant a substantial sum in damages, together with his
legal costs
Were
commented
The
matter was dealt with fairly and promptly and, as a result,
I feel that I can now perform my music before audiences
without embarrassment."
Novelist Piers Paul Read featured an unpleasant character
called Lord Derwent in his 1976 Polonaise. The
actual Lord Derwent and the court were unamused, with a
substantial judgment against publisher Secker & Warburg
and Read.
In Carter-Clark v. Random House a New York trial
court rejected a defamation claim against the author and
publisher of Primary Colors, a bestseller about
a political candidate whose heart tends to wander. The novel
features a fictitious liaison between the politician and
a female librarian running a Harlem adult literacy program.
Librarian Daria Carter-Clark, host to then Governor Bill
Clinton at her adult literacy program in Harlem, claimed
that she was the fictional character and that the politician
was intended to be Clinton. Carter-Clark claimed that she
was portrayed as unprofessional, promiscuous and immoral,
with resultant emotional distress and damage to reputation.
The court disagreed.
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