Fiction Can Defame…

Many fiction authors would be surprised to learn that even fiction can be defamatory. Journalists and those who write nonfiction, notably memoir and biography, are probably more familiar with concerns about defamation than fiction authors. However, even authors of fiction have to be careful that if a character is inspired by a real life individual, the writing isn’t defamatory.

On the upside for authors, because of our strong First Amendment protections in the United States, it’s difficult for many people to successfully raise a defamation claim against a fiction writer, particularly for public figures. If you write about a public figure, that person has a harder road to prove defamation because they have to establish that you acted with what the law calls “actual malice”. While the laws vary from state to state, typically the complainant has to establish that you published information that you knew was false or that you acted with “reckless disregard” about its truth or falsity.

For any defamation claim, whether brought by a public figure or not, the complainant has to prove that what you wrote was false, that it was harmful to their reputation, and generally also that they suffered damage as a result of your publication. It’s important to note that publication means publication to a third party: if you call someone names to their face in private, that’s not defamation. If you write something in a private journal that no one else ever sees, that’s probably not defamation either.

Defamation also generally requires the person you wrote about to be an identifiable, living person. So if you’re writing about a historical figure, you shouldn’t be worried about defamation. Also, if you’re writing in a way that masks the true identity of the inspiration for your character, you should also be okay. Ways of doing this include changing the name, physical description, job description, or setting.

A relatively well-known example of a fiction defamation case involved the best-selling novel from the 1990s, Primary Colors, later adapted into a film starring John Travolta and Emma Thompson. Although the book was billed as fiction, it clearly drew very close inspiration from Bill Clinton’s initial run for president. The book focused on the primary campaign of the fictional Governor Stanton, a southern governor, with an ambitious and well-educated wife supporting his campaign. These characters were played by Travolta and Thompson, respectively. The defamation claim was brought by Daria Carter-Clark, a librarian from Harlem, who argued that a minor character in the film was based on her. The character was portrayed as having engaged in a sexual relationship with Governor Stanton while he was on the campaign trail. The defamation claim failed because the court wasn’t convinced that the character was sufficiently identifiable as Carter-Clark. The character in the book/film had a different name, a different job title, and a dissimilar physical description from Carter-Clark.

If you don’t sufficiently mask the identity of your true life inspiration for a fictional character, a court may find you liable for defamation, so if you’re writing fictional characters inspired by real people, it’s always a good idea to mask the identity of the original person as best you can.

Defamation law is state-based law. There is no comprehensive American federal law of defamation, which means that any blog post like this can only go into generalities about how specific laws work at the state level. It’s also worth knowing that defamation laws in other countries sometimes operate quite differently to American law: for example, in Australia, there is much greater protection of the reputations of public figures under defamation law than in the United States. So, for example, politicians are often quite successful in suing writers and publishers for defamation, unlike the position in the United States where it’s very difficult for public figures to win defamation cases.

Oh, and if you’re confused by the legalese surrounding defamation, notably the words “libel” and “slander”, it’s generally the case that people use libel for printed words and slander for spoken words. They’re both forms of defamation, so if you just refer to “defamation” generally, it covers the field.

And, of course, my usual disclaimer applies to this column: Nothing written here is intended as formal legal advice and folks who need help with particular issues should consult an agent or attorney.

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