In this New York Bookwoman “Legally Speaking” column, Dina Di Maio debunks some of the myths about disclaimers and libel.
Anyone has the right to sue for defamation, so it’s possible. Keep in mind, just the fact that your ex-friend and the character are similar doesn’t mean you are doomed. What you write must be libelous – it must be about the person in question, it must be published, and it must be false, negative and hurt his reputation in some way. Without meeting all these elements, it is not libel. To determine libel, courts will look at the similarities between the character and the real person. In the New York case of Randall v. DeMille, the Supreme Court found that the character and the plaintiff were not similar enough to constitute libel. The court said the fictional character must so closely resemble the real person so “that a reader of the book, knowing the real person, would have no difficulty linking the two.” In Welch v. McMillan, the New York Supreme Court said that the reader must be “totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all.”
For example, let’s say your ex-friend has brown hair, wears glasses, collects cigar boxes, likes country music, is from Boston, and travels frequently for work. The character in your novel is exactly the same. However, you fictionalize that he gambles and goes to strip clubs on his work trips. Your ex-friend’s wife reads your book and recognizes her husband as the character and believes that he gambled and went to strip clubs on his trips. She divorces him. What you wrote injured your ex-friend’s reputation and caused him a concrete injury. For that reason, a court could find your book to be libelous. So the long short answer for writers is this: Change names, identifying information, locations, circumstances as much as you can. Make characters composites of many people, or morph them so as not to be recognizable as one particular individual.
Doesn’t the disclaimer in the front of my book protect me?
Everyone has seen it in books and movies: “This is a work of fiction, any resemblance to real persons, living or dead, is purely coincidental.” Contrary to popular belief, this statement doesn’t save you from libel. If what you wrote about the character in your book is found to be libelous, a disclaimer may be taken into consideration when monetary damages are being assessed against you. What the disclaimer does is mitigate damages, which is a legal phrase meaning you took reasonable steps to avoid injury to another party.
Let’s change the facts and say what I wrote about him was true. Is it still libel? Truth is a defense to libel, but it means you may have to prove that your ex-friend gambled and went to strip clubs on his work trips.
Keep in mind that regardless of whether or not the novel is libelous, it may still be an invasion of privacy. Again, the craft of writing intersects with the law, but being informed of the law will let you worry less so you can write more.
Dina M. Di Maio is a licensed attorney in New York and Tennessee. With an MFA in creative writing from New York University, Dina has worked as a freelance writer and editor for publications and publishers like Glamour, Family Circle, and Scholastic, Inc. She also worked in the legal department of the Authors Guild and is currently a member of the Authors Guild. Check out her food blog!
*This is for informational use only. For legal advice on your specific situation, please see an attorney.