Friction Over Fact Versus Fiction
Welch v. Penguin Books USA, Inc.
Los Angeles Times - 10/29/90
BOOKS: AN EX-LOVER OF AUTHOR TERRY MCMILLAN CLAIMS A
CHARACTER IN 'DISAPPEARING ACTS' IS A DISTORTED PORTRAIT OF
HIM. HIS SUIT CHILLS THE WRITING WORLD.
By ELIZABETH MEHREN, TIMES STAFF WRITER
In a suit that could affect virtually anyone who writes fiction in this country, a
former lover of novelist Terry McMillan has filed a $4.75 million defamation suit
against her.
Leonard Welch's suit claims that he is recognizable as the model for the central
character in McMillan's novel "Disappearing Acts" (Viking, 1989), and that the
book defames him. The suit also names Penguin USA, the parent company of
Viking, and Simon & Schuster, which published the book in paperback, as
defendants.
The case is frightening, said novelist Marita Golden, "because some of the
greatest fiction is based on real people." If Welch wins the suit, said Golden,
author most recently of a novel called "Long Distance Life" (Doubleday), "It would
definitely put a chilling effect on fiction writers."
Welch was unavailable for comment on the suit, filed in August in the Superior
Court of King's County (Brooklyn). A hearing has not been scheduled.
His lawyer, Peter Gordon, said he and his client object to the way the book
allegedly portrays his client in a character named Franklin Swift, as "hostile,
angry and lazy," a "racist," someone who "drinks on the job" and is "intolerant
toward homosexuals," a "stool pigeon," a "rapist," a "drug user" and "a man who
is crazy and sick."
On advice of counsel, McMillan declined to discuss the case. Martin Garbus,
the lawyer for Penguin USA, called Welch's action "a private passion, a
vendetta." Acknowledging that Welch and McMillan lived together in Brooklyn for
three years and had a child, as did the main characters in "Disappearing Acts,"
Garbus added: "It is not so much a lawsuit as a marital dispute."
He said the suit was in part a reflection of the book's success.
"Disappearing Acts" won praise from critics for its portrait of the relationship
between Zora, a black would-be singer, and Franklin, a black construction
worker. McMillan was lauded particularly for her skill in depicting a male point of
view. The book was hailed as a "crossover" work, appealing equally to black and
white audiences. It sold moderately well for a first novel.
"If this book had been totally obscure and if Terry McMillan were an obscure
writer, you would have a different case," Garbus said.
"I think it's just part of the general nastiness of the time, that people see
someone doing well and they want part of it," Golden said. "It's part of the whole
intolerance of the imagination."
But Gordon, Welch's attorney, contends McMillan's portrait was too realistic. "If
you're going to call it fiction, make it fiction," Gordon said.
His 27-page complaint outlines the instances in the book that he says defame
his client. He said he and Welch arrived at the $4.75-million figure for damages
by "figuring out what each cause of action was worth." He said that as a result of
McMillan's book, Welch "has been shunned in different areas. People have been
looking at him differently, suspiciously."
Garbus, representing Viking, branded the monetary damages claimed in the
suit "preposterous." The law of libel and defamation is changing, Garbus said,
"so that someone would have to be nearly driven out of work" in order to collect
damages. "So far, we have no reason to believe that has happened" to Welch,
Garbus said.
Garbus concedes there are some similarities between Welch and Franklin
Swift, such as that both are tall black construction workers.
But, Garbus said, "What Terry McMillan has done is no different than what
other writers have done.
"It has to be permissible to draw on your real-life experiences. Otherwise, you
can't write fiction," he said.
Garbus cites the precedent seven years ago of Springer vs. Viking Press, in
which Lisa Springer argued unsuccessfully that she had been libeled when her
former love, Robert Tine, used her as the model for a character in his novel
"State of Grace."
That case, Garbus wrote in an article in the Brooklyn Law Review, found that "a
libel claim based on fiction must be dismissed unless a reasonable reader of the
allegedly libelous material would understand that the fictional character was an
actual portrayal of the plaintiff."
"The question is, is it recognizable to a large number of people out there?"
Garbus explained. "Merely because a certain number of people can recognize it,
it's OK."
Gordon, however, said that "the standard in the law is that anybody who knows
my client who read the book would have to be able to recognize" the character as
Welch.
Gordon also said the suit alleges that McMillan acted "maliciously" in writing
"Disappearing Acts."
"What Terry McMillan was thinking was vindictiveness, revenge," Gordon said.
Gordon also faults Viking, McMillan's publisher. "You can't let a book like this
go through without making certain checks," Gordon said.
But Gordon, like Garbus, was quick to point out that a victory for his client could
set an unhappy precedent.
"If this becomes a precedent, it's going to be bad law," Gordon said, in that
there would be a lot of frivolous cases filed. "I'd hate to put a chilling effect on
future fiction writers," he said.
If Welch were to win the case, Garbus said, "it would be ghastly. It creates a
bad atmosphere."
For example, Garbus said, if a fiction writer felt he or she had to "make a 6-foot,
3-inch Jewish lawyer into a 7-foot, 2-inch black basketball player, it would change
the story."
Faith Sale, vice president and executive editor of G. P. Putnam's Sons, echoed
the lawyers' concerns. "Fiction writers write best when they know what they write
about," said Sale, the editor for Joseph Heller, Alice Hoffman and Amy Tan,
among other fiction writers.
"It really is a difficult problem," said Tim O'Brien, whose most recent novel is
"The Things They Carried" (Houghton Mifflin). Novelists necessarily write about
their own experiences, O'Brien said. But, "On the other hand, an author does
have an obligation to protect the privacy of an individual." A novelist does this,
said O'Brien, by working "to create a balance, to try to disguise as much as
possible anything that is brought out of the real world."
Still, O'Brien said, "Just the fact that these suits are filed is very, very
frightening.
"Anyone can recognize themselves in anything," O'Brien said. "I can recognize
myself in Ahab."
Garbus said he would move to have the case dismissed.
COURT DECISIONS
MEDIA COVERAGE
|
