Dorian Box

All writers should be aware of the risk of defamation in fiction and take precautions to avoid it, even accidentally. There are several excellent blog posts explaining tort liability (civil liability for money damages) arising from fictionalized works containing false defamatory statements about a character who bears similarities to a real person. Here’s a good one.

This post focuses on one slice of that issue which all fiction writers need to think about: What’s in a name, of a fictional character, that is? What if you create dishonest, criminal or otherwise unsavory characters and give them names that happen to also belong to real people? Can you be sued? Can you lose?

Libel in Fiction—The “Identification” Element

First, keep in mind that we’re talking only about false defamatory portrayals of people, which probably don’t include most of your characters. Defamation can be defined as false words that hurt a person’s reputation by subjecting them to ridicule, scorn, contempt or bad repute.  Laudatory characters, even if they’re based on real people, aren’t likely to result in a lawsuit.

Plaintiffs get to play a legally tricky game in fiction-defamation cases.  They assert: “This work of fiction is about me, but all those statements about how rotten I am are completely false.”

The writer’s reaction is, “Of course the statements are false. I made them up. That’s why it’s called fiction.” But if the plaintiff can show that the description of the character is such that reasonable readers who know the plaintiff could identify the character as the plaintiff, the author can be held liable for false defamatory statements about the character even if they’re fictional.

To prove this element of defamation—known in legalese as the “of and concerning” or “identification” element (i.e., that the defamatory statements were about the plaintiff), plaintiffs focus on showing similarities with the fictional character. Courts examine similarities such as geographic location, physical description, occupation and—most relevant to this post—names.

Bryson v. News America Publications, Inc., 174 Ill.2d 77 (1996) is a case where a court allowed a fiction-based defamation claim to proceed in large part because the fictional character bore the same name as the real plaintiff.

Plaintiff Bryson sued for defamation based on a short story that appeared in Seventeen magazine about a girl with same name, alleging the story “referred to the plaintiff as a ‘slut’ and implied that she was an unchaste individual.” The story was published in a group of stories called “New Voices in Fiction.”  A footnote identified the author as a “native of southern Illinois”—same geographic location as plaintiff.

Among other arguments, the defendants asserted the article could not be read as referring to the plaintiff because it was labeled as “fiction.” The Illinois Supreme Court disagreed, stating:

We are not persuaded by this contention. … The fact that the author used the plaintiff’s actual name makes it reasonable that third persons would interpret the story as referring to the plaintiff, despite the fictional label. In addition, the setting of the story, the events described therein, and the identification of the writer as a native of southern Illinois all lead to a reasonable conclusion that third persons familiar with both the plaintiff and the defendant would understand the story as referring to the plaintiff.

(In answers to interrogatories, the plaintiff referred to “more than 25 alleged similarities between herself and the physical attributes, locations and events attributed to the character … in the story.”)

Accordingly, the court reversed the trial judge’s dismissal of the lawsuit, opining the plaintiff should have had the opportunity to convince a jury the story was about her. Note that this did not mean the plaintiff won the case, but only that the lawsuit was permitted to continue. Most likely, the case settled after the appeal.

What’s in a Name?

In Bryson, the fact that the character had the same name as the plaintiff played a central role in the result, but as in other successful fiction-defamation cases, there were more similarities than name.

Most fiction writers probably draw inspiration for at least some characters from real people.  So recommendation number one is to change the names of real people who inspired your characters, but don’t stop there.  Change their physical appearances, locations and jobs—as many things as you can without taking away what it is that made them inspiring to begin with (which can be a difficult tightrope to walk).

In some fiction-defamation cases, the evidence is fairly clear that the fictional character was indeed based on the plaintiff, but what if a writer accidentally defames a person by giving a disreputable character the same name as a real person?

It’s a tricky question to which, like most legal questions, has no definite answer.

The issue has been on my mind because my forthcoming novel, The Hiding Girl (the unpublished manuscript, was a semifinalist in the Publisher’s Weekly Booklife Prize contest), features several despicable characters. They’re all figments of my imagination, but they have first and last names.

It’s a given to provide a standard “This is a work of fiction …” disclaimer at the beginning of a novel, which helps, but doesn’t provide full-proof protection. Recall that in the Bryson case the story was clearly labeled as fiction.

Some Options

1. Limit the names of disreputable characters to first names when feasible, which makes it much harder to prove identification. But of course some characters require a full name for story-telling purposes.  Don Juan wouldn’t have been the same as just “Don.”

2. Use common names. Googling “John Smith” in quotation marks brings up twenty-six million search results. Not very likely any particular John Smith would be identified by a work of fiction, but that’s a pretty boring name.  Most of us want to give our characters interesting or memorable names.  And even with common names, the risk of identification can increase proportionately with more description.  A fictional serial killer named John Smith isn’t going to open up the floodgates of litigation against you, but if he happens to look like your neighbor, John Smith, who drives the same model yellow Chevy with the same chrome tailpipes and walks with the same limp, you’re on thinner ice.

3. Go to the other extreme and pick extremely uncommon names. If no one else among the eight billion people on the planet has that name, you’re in luck, except that it’s hard to find a name not shared by someone somewhere. More often than not when I think I’ve come up with a clever name, an internet search brings up a Facebook profile, and that’s just on top.  And if there does happen to be a person with your same “unique” made-up name, the risk of identification increases.

I recommend doing internet searches of your characters’ names, especially the disreputable ones. In my first novel, Psycho-Tropics, I was almost ready to go to print when I discovered I had given a main character—a sexist, pill-popping criminal defense lawyer in Broward County, Florida—the same name as a real criminal defense lawyer in Broward County, Florida, purely by accident.

Go beyond just a worldwide name search. If your bad actors are associated with a particular city, add the name of the city to the search. If the same name comes up, I recommend changing it.

Constitutional Fault Standards and Identification

Don’t be too paranoid.  Just enough to be careful.  There are a number of legal hurdles erected in the name of free speech that make proving, winning, and receiving damages in a defamation case difficult.

First, a name by itself—with no other similarities to the character—is unlikely to be sufficient to establish identification. Again, in Bryson, the court had more than name similarity to go on. But as writers, there’s no way to assure someone with the same name doesn’t bear other similarities to the character.

Second, and potentially the most important point, under federal constitutional law, all defamation plaintiffs must prove some kind of “fault.”

Public officials and public figures face the extremely difficult to overcome hurdle of proving what’s called “actual malice,” a standard imposed by the Supreme Court in its landmark decision in New York Times v. Sullivan (1964). This requires them to prove the publisher of the speech knew the defamatory statements were false or entertained serious doubts as to their truth or falsity. Proving subjective (internal) state of mind if often impossible.

Private figure plaintiffs, on the other hand, only have to prove objective negligence in publishing false defamatory statements; that is, a failure to exercise reasonable care under the circumstances. While it’s a lower burden than proving actual malice, it can still be a significant obstacle for plaintiffs to prove negligence.

However, even at this late date, it’s still an open legal question whether the constitutional fault standards apply to the identification element. They were created to apply to the issue of whether the defendant knew (or in the case of private figures, reasonably should have known) the statements were false.

For example, if a newspaper prints an article falsely stating that Senator Smith stole campaign funds and put them to his own personal use, the senator would have to prove actual malice in publishing the statements. As in most defamation cases, Senator Smith is clearly identified; the identification element is not an issue.

But in fiction, we have the topsy-turvy situation where the defendant is insisting the defamatory statements were false, because they’re fictional.

So what of the identification element? If a writer, with no intent and no negligence, accidentally describes a character with the same name as a real person, does the plaintiff have to prove fault to prevail? The issue is rarely discussed in fiction-defamation judicial opinions, perhaps because most of the cases that make it to an appellate court involve substantial evidence showing the fictional character was indeed based on the real-person plaintiff.

Potentially good news for writers: The most-used Torts casebook in American law schools, Prosser, Wade & Schwartz’s Torts: Cases and Materials (13th ed. 2015), speculates that “[t]he constitutional fault standard is probably applicable to the identification issue.”

That makes good sense, constitutionally and otherwise. If an author makes reasonable efforts to not write characters identifiable as real people, imposing tort liability for defamation would amount to strict liability, which the Supreme Court ruled in Gertz v. Welch (1968) is unconstitutional.

(Writing parody about intentionally identified people, is also constitutionally protected, but these cases invariably involve public figures.)

Bottom Line

The bottom line is that successful libel suits arising from fictional characters are rare, but writers should exercise care to avoid even the threat of a lawsuit. In law, if you get sued, you’ve already lost to a large extent. One study showed that 80 percent of amounts paid out in defamation cases go to pay lawyers and litigation costs and only 20 percent to damages.

If you’re famous and represented by a big publishing house, they might foot the bill, but most publishing contracts contain a clause by which the author agrees to indemnify the publisher for losses arising from defamation or other causes of action. If you’re an indie publisher, the news is even worse: your homeowner’s liability policy is likely to exclude coverage for defamation.

Moral of the story: It’s worth making an effort to check out your characters’ names, especially disreputable ones, on the internet for similarities to real people and if you spot similarities, change the character’s name or location.  If your characters are inspired by real people, take extra care to change descriptions such as appearance, occupation, location, and of course names.