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TrickyFiction
11-25-2009, 01:16 AM
I just saw this article today and I wonder what people here will think of it.

http://www.ajc.com/news/childhood-friend-wins-libel-206497.html?cxtype=rss_news_128746

Kitty Pryde
11-25-2009, 01:22 AM
Holy mackerel! That's all I have to say. More juicy details here: http://www.firstamendmentcenter.org/news.aspx?id=22333

It's pretty scary that it's not totally safe to base characters loosely on people we know.

TrickyFiction
11-25-2009, 01:26 AM
It's pretty scary that it's not totally safe to base characters loosely on people we know.

That's what I thought. And I always figured the whole "This is a work of fiction..." disclaimer in most novels is there in order to prevent this sort of thing from happening. So this is more than a little confusing to me.

the addster
11-25-2009, 01:37 AM
Looks like the publisher is thinking appeal. I'm watching with interest to see if this verdict holds up.

Odd they didn't award attorney fees.

Judg
11-25-2009, 01:38 AM
Everybody in here is probably going to hate me, but I figure if you're going to base a fictional character on somebody you know in real life, you have an obligation to change the external details enough to make the person unrecognizable. When you have them growing up in the same place, having the same jobs, husband dying the same way, that's not basing a character loosely on an acquaintance, that comes pretty close to photocopying their life. I can see why she won her case, and I'm sympathetic to her. I would be horrified if somebody did that to me, especially if I was cast in a negative light.

Artistic freedom does not give me the right to humiliate people.

the addster
11-25-2009, 01:45 AM
Everybody in here is probably going to hate me, but I figure if you're going to base a fictional character on somebody you know in real life, you have an obligation to change the external details enough to make the person unrecognizable. When you have them growing up in the same place, having the same jobs, husband dying the same way, that's not basing a character loosely on an acquaintance, that comes pretty close to photocopying their life. I can see why she won her case, and I'm sympathetic to her. I would be horrified if somebody did that to me, especially if I was cast in a negative light.

Artistic freedom does not give me the right to humiliate people.

I agree.

I can't imagine making a character recognizable, there's borrowing from life, and out and out stealing from it.

Brindle Chase
11-25-2009, 02:02 AM
Everybody in here is probably going to hate me, but I figure if you're going to base a fictional character on somebody you know in real life, you have an obligation to change the external details enough to make the person unrecognizable. When you have them growing up in the same place, having the same jobs, husband dying the same way, that's not basing a character loosely on an acquaintance, that comes pretty close to photocopying their life. I can see why she won her case, and I'm sympathetic to her. I would be horrified if somebody did that to me, especially if I was cast in a negative light.

Artistic freedom does not give me the right to humiliate people.

Amen!! I think one of the missing elements to the 1st amendment, even though I felt it was implied is that you can say/write anything you want... but you are accountable for those words and any hurt/harm they cause...

To me... a decent human being understands this inherently.

willietheshakes
11-25-2009, 02:28 AM
Everybody in here is probably going to hate me, but I figure if you're going to base a fictional character on somebody you know in real life, you have an obligation to change the external details enough to make the person unrecognizable. When you have them growing up in the same place, having the same jobs, husband dying the same way, that's not basing a character loosely on an acquaintance, that comes pretty close to photocopying their life. I can see why she won her case, and I'm sympathetic to her. I would be horrified if somebody did that to me, especially if I was cast in a negative light.

Artistic freedom does not give me the right to humiliate people.

+1

TrickyFiction
11-25-2009, 02:31 AM
Amen!! I think one of the missing elements to the 1st amendment, even though I felt it was implied is that you can say/write anything you want... but you are accountable for those words and any hurt/harm they cause...

To me... a decent human being understands this inherently.

Hmm... I disagree here--on adding a clause to the first amendment prohibiting humiliation. Humiliation is a personal matter. Some people are proud of their sexual promiscuity, for example, while others are ashamed of it. Also, no matter how much you try, some of your characters are going to resemble real people, especially if you're good at building them. I don't know much about this case, except that the two women obviously know each other, but outside this specific case, I don't think this should become a general rule.

willietheshakes
11-25-2009, 02:32 AM
Hmm... I disagree here--on adding a clause to the first amendment prohibiting humiliation. Humiliation is a personal matter. Some people are proud of their sexual promiscuity, for example, while others are ashamed of it. Also, no matter how much you try, some of your characters are going to resemble real people, especially if you're good at building them. I don't know much about this case, except that the two women obviously know each other, but outside this specific case, I don't think this should become a general rule.

You DON'T think that people should be accountable for the effect of their words?

Interesting...

blacbird
11-25-2009, 02:34 AM
The First Amendment applies to criminal sanction by governmental authorities, not civil litigation brought by a private party. You can sue somebody for just about anything; you might not win, but you can bring civil action to court.

caw

TrickyFiction
11-25-2009, 02:36 AM
You DON'T think that people should be accountable for the effect of their words?

Interesting...

What I said was that I don't think the first amendment should be altered to take humiliation into account. It is too subjective and could be abused too easily.

IceCreamEmpress
11-25-2009, 02:37 AM
It's pretty scary that it's not totally safe to base characters loosely on people we know.

This is what libel law is about.

I'm surprised the publishers' attorneys didn't go over this in detail with the author. I've been taken to the woodshed about similar things.

Judg
11-25-2009, 02:43 AM
I will add that I don't think the publisher should be held liable, just the author. It is unrealistic to expect publishers to have to vet every fictional character in every book they put out to see if they hew too closely to some real-life person who is probably too obscure to be easy to research. I'm not sure if St. Martin's was named in the suit, but seeing as they're thinking of appealing, it would seem so. Laying that kind of burden on publishers could definitely have a chilling effect on fiction publishing, and I don't think it's warranted.

I have to admit I'm cheered by how many writers think they should curtail their own liberty in the name of human decency.

Tricky, I'm not American, so I'm not going to make any comments on the Constitution. However, the legal charge was libel, not humiliation. Humiliation is just the human fallout of libel. In this case, I think the charge was warranted, at least from what I can make out from these two news stories.

It's particularly heinous when you libel a victim in a medium in which they have no voice. When I say, "Be nice to me or I'll put you in my next book," I mean it as a joke.

Of course, this kind of free publicity is probably going to result in greater sales for The Red Hat Club, maybe even enough to offset the legal costs. In that case, the lesson won't be that effective now, will it?

Brindle Chase
11-25-2009, 02:45 AM
Hmm... I disagree here--on adding a clause to the first amendment prohibiting humiliation. Humiliation is a personal matter. Some people are proud of their sexual promiscuity, for example, while others are ashamed of it. Also, no matter how much you try, some of your characters are going to resemble real people, especially if you're good at building them. I don't know much about this case, except that the two women obviously know each other, but outside this specific case, I don't think this should become a general rule.

hehhee... not what I said. I wouldn't prohibit... I would hold people accountable. You can say anything you like... but would be accountable for anything it caused. Example... you falsely accuse someone of conspiracy to kill the president. Someone gets angry and shoots that person before they can go to trial... later its discovered you lied. You should stand trial for murder... IMHO. Accountablity is the check to the balance for free speech.

willietheshakes
11-25-2009, 02:47 AM
What I said was that I don't think the first amendment should be altered to take humiliation into account. It is too subjective and could be abused too easily.

Except that, in the post you quoted, it was a reference to accountability overall, not to humiliation...

TrickyFiction
11-25-2009, 02:49 AM
hehhee... not what I said. I wouldn't prohibit... I would hold people accountable. You can say anything you like... but would be accountable for anything it caused. Example... you falsely accuse someone of conspiracy to kill the president. Someone gets angry and shoots that person before they can go to trial... later its discovered you lied. You should stand trial for murder... IMHO. Accountability is the check to the balance for free speech.

Apologies for misunderstanding your post. I thought you were suggesting a change to the first amendment.

Kitty Pryde
11-25-2009, 02:51 AM
This is what libel law is about.

I'm surprised the publishers' attorneys didn't go over this in detail with the author. I've been taken to the woodshed about similar things.

So...where is the line drawn? How much detail do you have to put into your story before the person is recognizable? How many people must they be recognizable to? How bad of stuff do you have to say about them before it's libel?

willietheshakes
11-25-2009, 02:53 AM
So...where is the line drawn? How much detail do you have to put into your story before the person is recognizable? How many people must they be recognizable to? How bad of stuff do you have to say about them before it's libel?

Depends on the judge, I would think...

Judg
11-25-2009, 02:56 AM
Even if the work contains a disclaimer stating that it's fictional, a libel claim can still arise. However, plaintiffs must clear certain hurdles. In order to state an actionable claim for defamation, a plaintiff must show: publication, defamatory meaning, false statement, identification and damages. In libel suits arising out of fiction, arguably the toughest hurdle for plaintiffs to clear is the identification, or "it's me" requirement. The plaintiff must establish that it is the plaintiff being defamed. In libel-law lingo, this is called the "of and concerning" requirement. Harvard law professor Frederick Schauer has called the "of and concerning" requirement "the centerpiece of litigation involving fiction."

This does not mean that the entire world must understand that the fictional character identifies the plaintiff. It doesn't even mean that the fictional character must have the same name as the plaintiff. What matters is whether people who know the plaintiff can understand that the character was meant to depict the plaintiff. "It is not necessary that all the world should understand the libel," a New York court wrote in 1836. "It is sufficient if those who knew the plaintiff can make out that he is the person meant."
http://www.firstamendmentcenter.org/speech/arts/topic.aspx?topic=libel_fiction

More details:

But the fictional character and the plaintiff must be very close in description. In Carter-Clark v. Random House, Inc., a New York trial court rejected a libel plaintiff's defamation claim against the publisher and author of Primary Colors, a best-selling novel written by political writer Joe Klein about a political candidate who has several extramarital affairs. The court wrote: "For a fictional character to constitute actionable defamation, 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."

In Carter-Clark, the court focused on the following differences between the plaintiff and the fictional character: different names, different jobs and dissimilar physical appearances.

Jamesaritchie
11-25-2009, 04:14 AM
My guess is that this will be overtured on appeal. At least, that's what happened the last time someone was found guilty of a similar libel.

This is dangerous ground. This is incredibly dangerous ground. It doesn't matter whether the character is or isn't based on someone real, it only matters that a jury believes it is. A jury may well believe a portrayal of Humpty-Dumpty is really your friend Marcella Smith in disguise. If this doesn't frighten every writer, they simply haven't seen many jury trials.

The Lonely One
11-25-2009, 05:21 AM
To my understanding (correct me if and how I'm wrong) it isn't libel if it's true. It's journalism.

The Lonely One
11-25-2009, 05:31 AM
My guess is that this will be overtured on appeal. At least, that's what happened the last time someone was found guilty of a similar libel.

This is dangerous ground. This is incredibly dangerous ground. It doesn't matter whether the character is or isn't based on someone real, it only matters that a jury believes it is. A jury may well believe a portrayal of Humpty-Dumpty is really your friend Marcella Smith in disguise. If this doesn't frighten every writer, they simply haven't seen many jury trials.

We'd like to believe a conviction is the be-all, end-all of justice and truth. But it isn't. Jurys have been and forever will be wrong a certain percentage of the time. One of the things I hated about journalism was leaving the word "alleged" or "accused of" out of an article written after someone was convicted by a jury. Convicted doesn't mean the journalist knows with surety someone committed a crime. There shouldn't be any assumptions.

My opinion: jurys are often comprised of people who are uneducated on the matter of law, and who get a "crash-course" from a judge, which they don't fully understand. I've always suspected jurys' decisions are affected by how soon the bailiffs can get them their pizza or how soon they can go home and back to work, not in full, but in part. Knowing first-hand the stupidity of some of my friends or family members who've been called for jury duty, jurys frighten me.

And this article frightens me.

ChristineR
11-25-2009, 05:54 AM
To my understanding (correct me if and how I'm wrong) it isn't libel if it's true. It's journalism.

That's the point--the fictional version of her was altered for literary effect, but some of the details given about the woman made it impossible for any other real person to be construed as her. She used the woman's real home town, and apparently details about her job and her husband's death. I haven't read the book, but let's assume that these details were such that only one actual woman could have been the model for her character. She could have changed some of these details, then no single woman could have been identified as the real woman and there would be no issue.

And since she knew the woman, it was fairly easy to establish that it wasn't one of those cases where the one person out of seven billion that fits the character best happened to find the book and wonder if there might be something odd going on.

This is of course assuming that the jury verdict was more or less correct with regards to current libel law. As you say, juries have been known to do some really dumb things.

The Lonely One
11-25-2009, 06:12 AM
Ah. That makes sense. I suppose there are these individual cases that go too far, when changing some innate details here or there would've been easier than hurting someone and going through the nonsense of a lawsuit.

I wonder if anyone would have even suspected it was this woman if she'd never said anything. It's interesting, and important to us as writers to see how this turns out. Seems law is one of those "follow suit" type of systems.

The Lonely One
11-25-2009, 06:17 AM
BTW, this is exactly what I was talking about (quoted from the Gainesville Times):


(Smith's lawyer: )“We believe the law protects works of fiction, and this was a work of fiction. … But there was some confusion created by the (jury) instructions.”

I've heard jury instructions read a hundred times as a journalist covering trials, and they're still confusing to me. Throw in lesser-included crimes and you might as well be reading 40 pages of how to construct the entertainment center using a hammer and scotch tape.

Hittman
11-25-2009, 09:42 AM
you have an obligation to change the external details enough to make the person unrecognizable. When you have them growing up in the same place, having the same jobs, husband dying the same way, that's not basing a character loosely on an acquaintance, that comes pretty close to photocopying their life.

Bingo.


Artistic freedom does not give me the right to humiliate people.

Except in the case of public figures, at least those who became public figures willingly. (Politicians and other entertainers.) They're fair game.


It's particularly heinous when you libel a victim in a medium in which they have no voice. When I say, "Be nice to me or I'll put you in my next book," I mean it as a joke.

Maybe that's a joke we should start avoiding. (It's getting trite, anyway.) It might be dangerous.


She could have changed some of these details, then no single woman could have been identified as the real woman and there would be no issue.

In other words, the writer was either sloppy or lazy, two cardinal sins in this business.


A jury may well believe a portrayal of Humpty-Dumpty is really your friend Marcella Smith in disguise.

Hey, you lay off Marcella. She's a good egg.

Matera the Mad
11-25-2009, 09:45 AM
I find it hard to believe that anyone would step forward and claim to be the model for a sleazy character. "Oh, look, that drunken slut in so-and-so's novel is ME!" :eek:

Heh, I saw for the first time in many years today someone I abused in a trunked fan-fic :roll:

willietheshakes
11-25-2009, 10:10 AM
In other words, the writer was either sloppy or lazy, two cardinal sins in this business.


Or malicious.

One can't rule out deliberate cruelty as a possibility.

Linda Adams
11-25-2009, 04:57 PM
Apparently, there were more than thirty similarities to the real person--enough for several friends to recognize the real person in the character. This article (http://www.gainesvilletimes.com/news/article/26196/)details a few:



The "SuSu" character in Smith’s humorous novel about Buckhead socialites shared more than 30 similarities with Stewart, including where she grew up, the jobs she held and how her first husband died.

Phaeal
11-25-2009, 05:21 PM
In the first link of the OP, the offending author got in a great closing dig. I have a feeling plaintiff and defendant have quite the personal history.

So far no one has claimed I based my three-hundred plus year old Puritan wizards on them. One of the advantages of fantasy. ;)

Momento Mori
11-25-2009, 09:21 PM
Judg:
I will add that I don't think the publisher should be held liable, just the author. It is unrealistic to expect publishers to have to vet every fictional character in every book they put out to see if they hew too closely to some real-life person who is probably too obscure to be easy to research. I'm not sure if St. Martin's was named in the suit, but seeing as they're thinking of appealing, it would seem so. Laying that kind of burden on publishers could definitely have a chilling effect on fiction publishing, and I don't think it's warranted

I disagree with you on this point. The whole point of libel law is that it is not just the originator of the libel who is liable, but also anyone disseminating it because it is the dissemination that perpetuates the libel amongst the community. By holding disseminators liable, it encourages them to take reasonable steps to procure that their authors are not committing libel and in practice the way in which publishers get comfortable with this obligation is by requiring authors to indemnify them for any damages obtained against them in a court action.


Hittman:
Except in the case of public figures, at least those who became public figures willingly. (Politicians and other entertainers.) They're fair game.

Not even then.

MM

Judg
11-25-2009, 09:35 PM
Well, if they have a way of calling authors to account, that works. It just seemed too much to ask to have them playing detective for every character in every book.

And I agree with you about public figures too. We might have the legal right to get nasty with them, but does that make it right? Disputing their policies or actions is one thing; but the mean-spirited hounding that goes on in the name of free speech often makes me ill. And it also makes sure that a lot of good people refuse to get involved in public life.

IceCreamEmpress
11-25-2009, 10:38 PM
I find it hard to believe that anyone would step forward and claim to be the model for a sleazy character. "Oh, look, that drunken slut in so-and-so's novel is ME!"

After the fiftieth time someone's said "Oh, I read so-and-so's book, and that character is so clearly you! I didn't know you were a drunken slut," it seems reasonable.

If I write a book and include lots of digs about about how Malera the Mad on the PositiveWriting.net board is really a giant plagiarist who kicks puppies and writes CarrotTop's jokes, most people here would think a) that I meant you, and b) that you might well be a plagiarizing puppy-kicking writer of horrible comedy routines.


It just seemed too much to ask to have them {publishers} playing detective for every character in every book.

That's something that gets paid for in the 90%+ of the cover price that authors don't get.

Libbie
11-25-2009, 10:55 PM
When you have them growing up in the same place, having the same jobs, husband dying the same way, that's not basing a character loosely on an acquaintance, that comes pretty close to photocopying their life. I can see why she won her case, and I'm sympathetic to her. I would be horrified if somebody did that to me, especially if I was cast in a negative light.

Artistic freedom does not give me the right to humiliate people.

That's exactly what I thought, too. You really must change enough details that a jury can't sit in their box and say, "Well, clearly, this negative character is based on this real person's life. It's obvious."

Judg
11-25-2009, 11:40 PM
Apparently they found no fewer than 30 similarities. Sounds to me like a deliberate attempt to skewer the woman.

Bubastes
11-25-2009, 11:50 PM
Apparently they found no fewer than 30 similarities. Sounds to me like a deliberate attempt to skewer the woman.

That was my thought too. Really, is it THAT hard to change details like where someone grew up, how a spouse died, and job history? The author sounds like she was either lazy or malicious.

BenPanced
11-25-2009, 11:53 PM
That was my thought too. Really, is it THAT hard to change details like where someone grew up, how a spouse died, and job history? The author sounds like she was either lazy or malicious.
Or she was completely clueless and thought her subject would be amused.

Judg
11-25-2009, 11:59 PM
The moral of this story is, boys and girls, if you want to skewer childhood friends, do it so obliquely they don't realize it. Which takes all the fun out of it, but writers are called to a life of suffering.

the addster
11-26-2009, 12:53 AM
The moral of this story is, boys and girls, if you want to skewer childhood friends, do it so obliquely they don't realize it. Which takes all the fun out of it, but writers are called to a life of suffering.

Actually, I think it's rather fun. If you change the looks and life details, they never catch that you are using their character flaws. Sure, you have to giggle to yourself, but you get to giggle.

Judg
11-26-2009, 03:31 AM
Well, in that case, you're good to go. But I find that when I stick real people in my stories, they turn into somebody else anyway.

Hittman
11-26-2009, 10:26 PM
In other words, the writer was either sloppy or lazy, two cardinal sins in this business.
Or malicious.

One can't rule out deliberate cruelty as a possibility. Good point. I hadn't considered that. But then we'd have to add "stupid" to the list. And while stupid doesn't keep enough people out of this business, it's still a liability.


Not even then. Why not? They put themselves out there, in public, on purpose. Just like publishing a book makes it fair game for criticism or parody, making your life public makes you fair game too.

This is why it's perfectly acceptable to make fun of any politician, but their kids are off limits – they didn't sign up for the ride.