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New York Court Dismisses "Libel In Fiction" Claim Against Author And Publisher Of Novel "Disappearing Acts"
Welch v. Penguin Books USA, Inc.
Entertainment Law Reporter - 3/92
In April 1991, a New York trial court dismissed a libel action brought by Leonard Welch
against Terry McMillan, the author of "Disappearing Acts," and publisher Penguin Books
USA.
Welch, who had a three year relationship and a son with McMillan, claimed that the
protagonist of the novel, Franklin Swift, could be identified as Welch. Welch and Swift, as
described by Judge Jules L. Spodek, had the same physical appearance, education, and
employment, and shared similar breakfast and bathing habits. Each man owned a fish
tank, had a trick knee, and was the only son in a family with three children. The men met
their girlfriends while performing carpentry services at their respective apartments, and
both couples had identical vacations, dates and arguments.
The differences between the men included the fact that McMillan characterized Swift
as an alcoholic who once raped his girlfriend, used drugs, and was "occasionally lazy,
hostile, a racist, homophobic and emotionally unbalanced. He was wrongfully discharged
from the Navy due to his uncontrollable temper, hates his parents and accepts payoffs by
contractors not to go to work." Leonard Welch, stated the court, was none of those things.
In addition to alleging that his relationship with McMillan paralleled and imitated that of
Swift and the book's female protagonist, Welch set forth causes of action for negligence
based upon the purportedly erroneous labelling of the book as a novel, and for the
intentional infliction of emotional distress arising from the book's dedication to the parties'
son.
Judge Spodek agreed with a commentator who stated that in a libel in fiction claim, "the
identity of the real and fictional personae must be so complete that the defamatory material
becomes a plausible aspect of the real life [individual] or suggestive of the [individual] in
significant ways. Identification alone is insufficient. Only when the immediate context of
the allegedly defamatory statement convinces the reader of the statement's literal truth -
when, that is, it ceases to be merely imaginable or plausible and begins to be believed - do
damages to reputation, and thus liability, become possible."
In the instant matter, a sample of individuals who might have known Welch and read the
book indicated that while they recognized the main male character in the work as Welch,
they denied that Welch possessed any of the fictional Swift's defamatory characteristics. It
appeared that those who knew Welch had no difficulty differentiating him from Swift; the
allegedly defamatory material was not believed. For Judge Spodek, a libel in fiction action
requires a showing that the reader is totally convinced that the book, in all those aspects
related to the complaining party, is not fiction at all.
Welch may have been a model or inspiration for Swift, but the complained-of statements
created "a profound, characterological alteration" of Welch such that a reasonable reader
could not possibly attribute the defamatory aspects to him.
The court, accordingly, dismissed all causes of action against the McMillan parties.
Welch v. Penguin Books USA, Inc., 1991 N.Y.Misc. LEXIS 225 (Kings Cnty., April 3,
1991)
COURT DECISIONS
MEDIA COVERAGE
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