Ask a Lawyer

When Fiction & Reality Collide

The Legal Consequences of Using Real People in Fiction

By Lloyd J. Jassin, Esq.

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. 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 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, libel-in-fiction lawsuits do
happen. 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 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 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.

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. 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 two other legal horrors. 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. The right of publicity, which is related to the right of privacy,
involves the unauthorized use of a person’s name or likeness for commercial gain. Fortunately
for novelists, due to free speech considerations, courts historically construe publicity rights
narrowly. But, that’s the subject of another Q&A.

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Lloyd J. Jassin is a publishing and entertainment lawyer with offices in New York City and
New Jersey. A former publishing executive, he is the coauthor of The Copyright Permission &
Libel Handbook (John Wiley & Sons). Mr. Jassin blogs on publishing and entertainment law
matters at www.copylaw.org. Contact: jassin@copylaw.com.

THE INFORMATION PROVIDED ABOVE IS OF A GENERAL NATURE AND IS NOT

INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR
QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.