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Fiction and Libel

Haywood Smith, author of a 2003 bestseller entitled "The Red Hat Club," and her publisher, St. Martin's, were sued by a childhood friend of Smith who claimed that Smith had based a character in the novel on her. A Georgia jury found that plaintiff Vickie Stewart had indeed been defamed, and awarded her $100,000.

Interestingly, the jury did not find that Stewart's privacy had been invaded, and did not award her attorneys' fees. The jury also found that Smith and St. Martin's had acted "in good faith" in, respectively, writing and publishing the book, and that the characterization didn't constitute "an act of vengeance."

What Smith had done in creating the character was to accord it Stewart's physical description and a marital and divorce history that closely paralleled Stewart's. The character, SuSu, was additionally depicted as a promiscuous, alcoholic, right-wing reactionary atheist. Apparently in Georgia it's defamatory to be depicted as an atheist.

A lawyer for Stewart stated that Vickie's friends "could not distinguish fact from fiction" in the portrayal of SuSu.

The expert witnesses for the defense pointed out that most writers, including the great ones, base characters on people they've known in real life. I recall that the man who sued Terry McMillan many years ago for basing a character on him in her novel "Disappearing Acts" lost precisely because of this argument. As the judge in that case pointed out, writers take their material from real life.

What would I have done, had I been Smith? Changed the physical description of the character, for one thing. And altered the details of the character's personal history. Actually the vast majority of my characters I've made up out of whole cloth.

This is a funny story, but the implications for fiction writers are a bit alarming. Suppose someone were to create a really vile character, such as a serial child molester, and purely inadvertently give that character the physical description and name of an actual person? I know that's unlikely to happen coincidentally, and I suppose most writers are smart enough not to do it deliberately. But still...it could happen. What then? Wouldn't the plaintiff have to demonstrate malice aforethought? What a mess.

Anyway, read the whole Smith/Stewart saga at www.law.com.

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