Question: One of our editors is working with an author on her first novel. The antagonist of the novel is based on an acquaintance of the author’s; this acquaintance is a man who went on to become successful in his profession despite the author’s belief that he was rather a villain. I know that people can sue authors and publishers for libel in nonfiction, but if her work of fiction is published, can he sue us and win?
Answer: The short answer to your question is that individuals can be libeled in works of fiction just as they can in works of nonfiction.
To properly answer your question, I should explain what libel is and a bit of its legal history. Libel is the publication of a false statement of fact that harms the reputation of a living individual. Before 1964, under the common law, the only absolute defense against libel was that the statement in question was actually true. This changed when the Supreme Court decided the landmark case of Times v. Sullivan, in which a public official sued The New York Times for alleged libel in an advertisement that the Times printed. The Times won. The Supreme Court recognized that imposing strict liability on the defendant created a “chilling effect” on the free and open speech necessary for a healthy democracy. In accordance with the First Amendment (which protects freedom of speech), the Supreme Court stated that a public official plaintiff must prove that the statement in question is not only false but also was published with “actual malice.” The Supreme Court defines “actual malice” as knowledge of a statement’s falsity or reckless disregard for a statement’s truth.
Subsequent Supreme Court cases have extended this “actual malice” standard to include “public figures” in addition to public officials. Individuals who are public figures fall into one of two categories: (1) all-purpose or pervasive public figures (such as celebrities), and (2) limited-purpose public figures (people who have thrust themselves into the vortex of a particular public controversy). For example, Monica Lewinsky can be classified as a limited-purpose public figure.
Even if a plaintiff is neither a public official nor a public figure but is a private individual, the Supreme Court has said that there can no longer be “strict liability” on the defendant’s part. While a private individual plaintiff does not have to prove that the defendant had “actual malice,” that plaintiff, at the very least, must prove that the defendant was negligent in making the defamatory statement. The difference between “actual malice” and “negligence” is that actual malice is disregard for a known danger–what you know or should have known–whereas negligence is a violation of a standard of what responsible people would do. The Supreme Court has left it to individual states to determine what is negligent within the libel context.
With this background in mind, let’s address your specific case. The first question I have is whether or not the author’s acquaintance is alive. Remember, the dead cannot be defamed, because the law holds that a person’s reputation dies when a person dies.
If he is alive, my second question is whether or not the antagonist in the novel is a recognizable portrait of this person from the author’s past. He must show that others recognized him as the model for the antagonist. He also must prove that his reputation has been damaged as a result of the manner in which the author portrayed him (i.e., because others ascribed the bad deeds or character traits of the antagonist to him).
Many novels are based in part on real events and feature characters based in part on real people. However, it is the job of a novelist to translate real events and individuals into fiction, using the real events only as inspiration. Quite frankly, it is usually the inexperienced or lazy author who gets into trouble. First-time novelists, as in our situation, are notorious for using people and events from their own lives, insufficiently disguised, in their novels.
If the antagonist is treated as a likable character, you are not likely to be sued for libel. However, if the individual is treated as a malevolent character who performs nefarious deeds, then the likelihood of suit becomes greater. Assuming that our author is not using the antagonist to create a likable character, it becomes all the more important to sufficiently disguise the fact that he is the basis of the character. Changes in name, physical description, geographical setting, job function or title, and real events are all ways to make an individual sufficiently unidentifiable. But you must make certain that the features used to disguise the antagonist are not themselves defamatory. In other words, if you have disguised him as a physically repulsive man when he is a handsome one, the disguise itself may be defamatory.
You may notice that I have not inquired whether this person is a public official, a public figure, or a private individual. Practically speaking, the need to sufficiently disguise the individual who is the inspiration for the antagonist remains the same in any of those categories.
If you are a publisher with “deep pockets,” the plaintiff will probably be more interested in pursuing you than in just suing the author. Most, if not all, publishing agreements have standard clauses–representations, warranties, and indemnification–that theoretically protect you in such situations. Among the representations and warranties an author is required to make is that the content of her novel is not libelous. Your publishing agreement probably states that if the author breaches any of her representations and warranties, she must indemnify you against defense, settlement, or judgment costs resulting from any claim or suit.
However, how many authors, particularly first-time novelists, have the financial assets to back the indemnity? Very few. Further, many publishers will have granted “author insurance” to the author. The author insurance clause states that notwithstanding the author’s representations, warranties, and indemnification, the publisher will look to the proceeds of its errors and omissions insurance policy in lieu of the author’s indemnity, after the deductible is met, with the author bearing one-half the cost of the deductible.
Even with an errors and omissions insurance policy, the financial burden and time-consuming nature of litigation is a compelling reason for publishers to educate their editors to be aware of libel issues in fiction as well as nonfiction, and when necessary, to seek proper professional assistance in having a manuscript reviewed prior to publication to minimize these risks.
Alan J. Kaufman has more than 25 years of experience as a Publishing Attorney and a thorough understanding of the business of publishing gained from serving for more than 20 years as Senior Vice President and General Counsel to Penguin Books. Kaufman practices law with the New York-based firm Frankfurt, Garbus, Kurnit, Klein & Selz, where he specializes in publishing, new media, small business corporate law, manuscript (libel) review, as well as distribution, author, and licensing agreements. Contact Kaufman at 212/826-5579 or firstname.lastname@example.org.