New York Court Rules Novel Was Not Libelous
Welch v. Penguin Books USA, Inc.
The National Law Journal - 4/22/91
By Rorie Sherman
The publishing world won a significant victory when a New York trial judge April 10
dismissed a $4.5 million libel suit, even though the plaintiff clearly was the model for a
rather unsavory fictional character.
Novelist Terry McMillan did not libel or defame her ex-boyfriend, Leonard Welch, in her
acclaimed "Disappearing Acts" despite the fact that he and the book's main male character
"have a lot in common," said state Supreme Court Justice Jules L. Spodek here.
"Identification alone is insufficient" to overcome a "presumption of invention," he added.
Instead, Justice Spodek concluded, "it must be a requirement of an action for defamation
that the reader be totally convinced that the book in all its aspects as far as the plaintiff is
concerned is not fiction at all."
Mr. Welch had sued Ms. McMillan and her publishers, Penguin USA (the hardcover
edition) and Simon & Schuster's Pocket Books (paperback), saying they were guilty of
negligence for erroneously labeling her book a novel. He also claimed emotional distress
because his child with Ms. McMillan may one day read the book and believe the
purportedly defamatory sections true.
One of Ms. McMillan's attorneys, Martin Garbus of New York's Frankfurt, Garbus, Klein &
Slez, hailed the decision, saying, "The authors and publishers of fiction are more free . . .
to create and distribute literature without fear of punishment by the courts."
While Mr. Welch's attorney said no decision had been made yet to appeal, Mr. Welch
already has received a consolation prize.
The man in "Disappearing Acts" is portrayed as a drunkard, rapist, bribetaker, racist and
drug abuser. Justice Spodek said, "Leonard Welch is none of these things."
COURT DECISIONS
MEDIA COVERAGE
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