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New York Courts Deal Blow To Claims Of Libel In Fiction
Welch v. Penguin Books USA, Inc.
New York Law Journal - 5/7/91
By Martin Garbus and Russell Smith;
Martin Garbus and Russell Smith are attorneys at
the New York firm of Frankfurt, Garbus, Klein & Selz, which represented Simon &
Schuster, Viking-Penguin and the respective authors in the Welch and Springer cases
discussed above. Another Frankfurt, Garbus attorney, Richard Kurnit, argued the cases.
ON MORE THAN one occasion, authors and publishers have found themselves in the
precarious position of being sued for libel by persons claiming to be characters in works of
fiction. In New York at least, it appears that such claims are increasingly likely to be
dismissed. The most recent case in this trend is Welch v. Penguin Books USA Inc., Terry
McMillan and Simon & Schuster Inc. (Sup.Ct. Kings Cty., Index No. 21756/90), in which
the authors were involved. Leonard Welch, an ex-lover of author Terry McMillan, alleged
that he was Franklin Swift, the central character in Disappearing Acts, McMillan's novel
portraying a black couple in Brooklyn. Welch claimed that he was falsely portrayed in the
novel as, among other things, a rapist and a drug addict.
In a decision announced last month, the New York Supreme Court dismissed Welch's
$4.75 million libel suit, recognizing "the obvious and implied constitutional repercussions of
a libel-in-fiction claim." n1 The court found that on the one hand, it is an "accepted fact that
writers create their fictional works based on their own experiences," such that actual
persons are often "prototypes" for characters, but that on the other hand, fictional works by
their nature carry with them a "presumption of invention" which makes it impossible for
reasonable readers to assume that they are truthful biographies. n2
n1 Welch v. Penguin Books U.S.A. Inc., Terry McMillan and Simon Schuster Inc.
(Sup.Ct. Kings Cty. No. 21756/90), Memorandum Decision at 7.
n2 Id.
In gathering the motion for dismissal brought by Simon & Schuster, Penguin Books and
the author, the court in Welch declined to follow several California and Federal decisions
where libel-in-action claims were allowed, Bindrum v. Mitchell, 92 Cal. App. 3d 61, 155
Cal. Rptr. 29, cert. denied, 444 U.S. 984 (1979), Geisler v. Petrocelli, 616 F2d 636 (2d Cir.
1980) and Fetler v. Houghton-Mifflin Co., 364 F2d 650 (2d Cir. 1966).
Publishers have taken the threat of such claims very seriously ever since Doubleday lost
the Bindrum case in California in 1979. In that case, the court upheld a claim by a
therapist who alleged that novelist Gwen Davis Mitchell attended a nude encounter
session he conducted and then described the session and him in a fictional book.
In Welch, the court relied in part upon Springer v. Viking Press, 60 NY2d 916, 470
NYS2d 579 (1983), in which the authors of this article also were involved. In Springer, the
New York Court of Appeals held (a) that whether a publication is susceptible of a
defamatory meaning "of and concerning" a libel plaintiff is a threshold matter for the court,
and (b) that the alleged similarities between the plaintiff and the fictional character in
question, although numerous, were nonsufficient to support a cause of action, because no
reasonable reader would believe that the actions of a fictional character in a novel could be
"of and concerning" the plaintiff. 60 NY2d at 917.
Like the Welch case, Springer involved an ex-lover of a successful author who sued the
author and his publisher for libel, claiming that she was unflatteringly portrayed as a
fictional character in a novel. Plaintiff Lisa Springer alleged that there were remarkable
similarities between herself and the fictional Lisa Blake in Robert Tine's State of Grace,
including height, weight, and physical appearance, a common address, shared
experiences and relationships, common abilities and recreational activities, similar dating
preferences, common friends and acquaintances, the same taste in jewelry and an
identical habit of regularly and methodically plucking and collecting her eyebrow hair.
The crux of Springer's defamation claim was that the fictional Lisa Blake, unlike Lisa
Springer, was a prostitute. The Court of Appeals upheld the dismissal of the claim,
declining to find a cause of action for libel in connection with a minor character in fiction.
Id.
Literary Reality
In view of the widespread and long-standing techniques of fiction writing, the importance
of libel-in-fiction cases can hardly be overstated. The world's most renowned authors and
playwrights, including William Faulkner, James Joyce, Leo Tolstoy, Eugene O'Neill, Fyodor
Dostoyevsky and Ernest Hemingway have all drawn upon their knowledge of actual
persons to create fictional characters. n3 Literary critics have observed that this is the case
with all great fiction, and that artificially constructed characters divorced form an author's
real life inevitably ring hollow. n4
n3 A. Gelb & B. Gelb, O'Neill 3 (1987); C. Baker, Hemingway: The Writer as Artist 79
(1980); The Hemingway Reader xv (C. Poore ed. 1968); F. Dostoyevsky, The Brothers
Karamazov xv-xvi (1981); A. Wilson, Tolstoy 278-79 (1988); A. Charters, Kerouac: A
Biography 68, 288-89 (1973) (emphasis added); J. Kerouac, On The Road 5, 8, 36, 92,
107, 155, 160, 173, 215 (1957); W. Amos The Originals: An A-Z of Fiction's Real-Life
Characters (1985).
n4 C. Baer, Hemingway: The Writer as Artist 79 (1980).
In the Welch case, the court rejected Leonard Welch's list of similarities he said he
shared with the fictional Franklin Swift, including bringing prime ribs home in a doggie bag
and sharing a mutual preference for drip-drying after showering. n5 The court found that
alleged similarities were negated by the far more significant and dramatic attributes of the
Swift character which Welch said he did not share. n6
n5 Welch, supra, at 1 and 6-8.
n6 Id.
The court noted the fundamental irony of libel actions such as this one, where the
plaintiff alleges on the one hand that he is a character in a work of fiction on the basis of
perceived similarities, while at the same time complaining that he has been libelled
because there are substantial and obvious dissimilarities between himself and the fictional
character. n7
n7 Id. at 5.
The court found that the affidavit submitted by the plaintiff demonstrated that persons
who knew Leonard Welch did not conclude that the portrayal of Franklin Swift was a
depiction of him.
Given Leonard Welch's burden of proving "that the charged portions in context could be
reasonably understood as describing actual facts about the plaintiff or actual events in
which [the plaintiff] participated," Pring v. Penthouse International Ltd., 695 F2d 438, 442,
(10th cir. 1982), the affidavits he submitted actually demonstrated that he could not prevail,
the court said.
No Identification
In another libel-in-fiction case, in the Seventh Circuit, where a plaintiff named Hazel
Wheeler sued for libel, claiming that she was unflatteringly portrayed in a novel as the
fictional character Janice Quill, the U.S. Court of Appeal held that the allegedly defamatory
characteristics cited by the plaintiff herself precluded any reasonable reader from
identifying the plaintiff with the fictional character, Wheeler v. Dell Publishing Co., 300 F2d
372, 376 (7th Cir. 1962).
In Wheeler, the fictional portrayal in question was based upon a particular trial in which
the plaintiff was widely known to have played a leading role. Id. at 376. Nevertheless, the
U.S. Court of Appeals held that "while the trial and locale might suggest Hazel Wheeler to
those who knew [her] family, suggestion is not identification." Id.
New York courts especially have long held that "the public has come to accept novels as
pure fiction and does not attribute their characters to real life." People on Complaint of
Maggio v. Charles Scribner's Sons, 205 Misc. 818, 821, 130 NYS2d 514 (Brooklyn
Mag.Ct. 1954) (dismissing complaint against publisher of novel in which plaintiff was
allegedly portrayed and referred to by surname).
Where a libel plaintiff was briefly mentioned by name in a fictional magazine article, the
Appellate Division reversed the lower court's denial of a motion to dismiss, holding that no
libel could be found in a fictional setting. Dauer & Fittipaldi Inc. v. Twenty First Century
Communications Inc., 43 AD2d 178, 179, 349, NYS2d 736 (1st Dep't 1973).
In a case involving a defamation claims against an artist who painted the plaintiffs in the
role of muggers, armed with knives and menacing a woman on a city street, the First
Department held that although the painting could be "deemed the equivalent" of written
words for purposes of libel law analysis, the "fanciful nature of the presentation" precluded
any finding of liability. Silberman v. Georges, 91 AD2d 520, 531, 456 NYS2d 395, 397 (1st
Dep't 1982). The court reasoned that because of its obviously allegorical message, no
reasonable person could view the work as a truthful account of the plaintiffs' activities,
despite the fact that the plaintiffs were identifiable in the painting.
In the Fourth Circuit, where a plaintiff by the name of Larry Esco Middlebrooks sued for
libel regarding a short story featuring the fictional character Esco Brooks, the U.S. Court of
Appeals held that because the story was presented as fiction, no reasonable person could
believe it to be a truthful depiction of the plaintiff. Middlebrooks v. Curtis Pub. Co., 413
F2d 141, 143 (4th Cir. 1969).
It has also been held that where, as in Welch and Springer, a publication is expressly
labelled as fiction, the fact that persons who know the plaintiff might have identified him
with a fictional character had there been no such labelling is irrelevant. Smith v.
Huntington Pub. Co., 410 F.Supp. 1270, 1273-74 (S.D. Ohio), aff'd 535 F2d 1255 (6th Cir.
1975).
Impact on Writers
Both the U.S. Supreme Court and the New York Court of Appeals have emphasized in
publishing cases that where fundamental First Amendment freedoms are at stake, the
constitutionality of a rule which could limit those freedoms must be judged by its possible
impact upon writers and publishers generally, not only by its effect upon the litigants in a
particular case. New York Times Co. v. Sullivan, supra, 376 U.S. at 277-78; People v.
Bookcase Inc., 14 NY2d 409, 418, 252 NYS2d 433, 440 (1964).
As the court recognized in Welch, the danger of libel-in-fiction claims is heightened by
the fact that fictional characters are commonly derived, in whole or in part, from the
authors' knowledge of actual persons. n8 Our courts have noted that "[authors] of
necessity must rely on their own background and experiences in writing fiction,"
Middlebrooks, supra, at 143, and that "[the] characters portrayed are fictional, but very
often they grow out of real persons the author has met or observed." Charles Scribner's
Sons, supra, 205 Misc. at 821.
n8 Id. at 7.
Courts have also recognized that fiction is often a far more poignant and powerful vehicle
for social and political expression than is factual reporting on non-fictional commentary. n9
See, Guglielmi v. Spelling-Goldberg Productions, 25 Cal3d 860, 603, P2d 454 (1979)
("Contemporary events, symbols and people are regularly used in fictional work. Fiction
writers may be able to more persuasively, more accurately express themselves by
weaving into the tale persons or events familiar to their readers. The choice is theirs. No
author should be forced into creating mythological worlds or characters wholly divorced
from reality.") cited with approval in, Rogers & Grimaldi, 875 F2d 994, 1004 (2d Cir. 1989).
n9 American Postal Workers Union v. U.S. Postal Service, 830 F2d 294, 306 (D.C. Cir.
1987); Guglielmi v. Spelling-Goldberg Productions, 25 Cal3d 860, 869, 603, P2d 454
(1979).
In fact, literary biographers have observed that the world's most renowned authors and
playwrights have all drawn upon their experience with real persons in order to create
fictional characters.
William Faulkner was particularly known for populating his books with characters
patterned upon members of his family and other real persons. "The young writer's familial
past . . . became an archetype of the Southern experience, which he would transform in
his stories and longer fictions into an American experience . . ." F. Karl, William Faulkner:
American Writer 34 (1989).
Eugene O'Neill wrote his most famous plays by "dissecting, analyzing and reconstructing
the members of his family and drawing thinly disguised and symbolically heightened
portraits of them . . ." A. Gelb & B. Gelb, O'Neill 3 (1987).
Ernest Hemingway, together with most of the writers and critics of his generation,
believed strongly that fictional characters must be inspired by actual persons from the
author's own experience. It has been noted that "Hemingway shared in the belief . . . that
any group of living people, placed under the microscope and candidly watched for typical
or idiosyncratic conduct, can be made to provide the groundwork of a novel." C. Baker,
Hemingway: The Writer as Artist 79 (1980).
More recently, Jack Kerouac relied upon his knowledge of his friend, Neal Cassady, to
create the principal character in On The Road, one of the most influential American novels
of the 20th century. As noted by one of Kerouac's several biographers, "[it] is a tribute to
Kerouac's literary talent, and the ironic triumph of fiction over fact, that in one sweeping
novel, he made his best friend a legend . . ." A. Charters, Kerouac: A Biography 66, 288-89
(1973).
In On The Road, Kerouac portrayed the fictional character Moriarty as, among other
things, a convicted criminal, a con man, an adulterer, a vagrant, a drug abuser, a liar, a
prostitute, an alcoholic and an imbecile. J. Kerouac, On The Road 5, 8, 36, 92, 107, 155,
160, 173, 215 (1957).
Because fictional characters inspired by real persons are ubiquitous in the world of
literature, a listing of them all would of course be impossible. William Amos, in his attempt
to catalogue some of the more interesting and easily identifiable examples, found over
three thousand. W. Amos, The Originals: An A-Z of Fiction's Real Life Characters (1985).
Amos noted that had authors not been able to rely upon the attributes of real persons,
many of our best novels and plays would have never been written. Id. at xix-xx.
The courts in New York have increasingly begun to recognize that if plaintiffs were
allowed to force authors and their publishers into lengthy discovery and plenary trials,
simply because of perceived similarities between such plaintiffs and obviously fictional
characters, virtually all writers and publishers of fiction would be placed in peril. As Viking
Press and its author argued in Springer, if every "Walter Mitty" who imagines himself a
character in a work of fiction were to be entitled to a trial, the Great American Novel would
have to be published somewhere else. Fortunately, from the point of view of authors,
publishers and the reading public, the courts of New York have been increasingly willing to
dismiss such claims at the outset.
COURT DECISIONS
MEDIA COVERAGE
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