Art Imitates His Life, But It's Not Libel
Welch v. Penguin Books USA, Inc.
Newsday - 4/12/91
By Patricia Hurtado
A Brooklyn judge has ruled that a novel by author Terry McMillan isn't libelous, even
though her former boyfriend charged that a character in the book resembles him so much
it hurts.
Last fall, Leonard Welch sued McMillan, Penguin USA and Simon & Schuster's Pocket
Books for $4.75 million in damages, charging he was recognizable as the model for the
central character in McMillan's novel, "Disappearing Acts."
Welch, who lived with McMillan in Brooklyn's Fort Greene section for three years and is
the father of her son, Solomon, charged that the character "Franklin Swift" described him
so closely that the book defamed him.
"Readers of the book who know the plaintiff have no difficulty recognizing [Welch] . . .
and attributing the defamatory aspects of the character to the plaintiff," his suit charged.
Welch complained that not only did he share similar physical descriptions, job and pets
as Swift, but that they even had identical vacations, dates, arguments and even liked the
same cereal for breakfast.
The book, which received good reviews and is now in its third printing, was optioned for
a movie by Tri-Star Pictures.
State Supreme Court Justice Jules Spodek of Brooklyn ruled April 3 that despite a
number of striking similarities, McMillan did not commit libel.
"Leonard Welch and Franklin Smith have a lot in common," Spodek wrote. ". . . Each
owns a fish tank, favors a bowl of Wheatena in the morning, drip dries after a shower, has
a trick knee." But, the judge concluded, "No one who knows the plaintiff can confuse him
with the fictional Swift."
Lawyers hailed Spodek's decision as an important court victory that could discourage
others from suing when they believe that a character is based on them.
"Insofar as fiction is concerned, this is the most important libel decision that has come
down in the country," said Martin Garbus, a partner in the law firm of Frankfurt, Garbus,
Klein & Selz, which represented McMillan and the publishing house. "This comes as close
to protection as total and absolute of a fiction author as you can get," Garbus said. "We
have established that you cannot libel a fictional character."
Peter Gordon, the attorney for Welch, did not return calls yesterday.
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