knew.
When such models recognized their fictional counterparts, there was a variety of consequences. Irascible critic Alexander Woollcott saw himself as the irascible protagonist in George S. Kaufman and Moss Hart's play The Man Who Came to Dinner. Woollcott was so delighted that he toured with the play. On the other hand, Truman Capote's jet-set friends were so undelighted to recognize themselves in ''La Cote Basque'' that some of them never spoke to Capote again.
Consequences can be legal as well as social. An important libel case in California, Bindrim v. Mitchell (1979), resulted from novelist Gwen Davis Mitchell portraying in her novel Touching a character who conducted nude therapy sessions. She was sued by Dr. Paul Bindrim, a therapist who did just that. Even though Mitchell's fictional protagonist differed in several important ways from Bindrim, Mitchell lost the case. Bindrim was awarded a substantial settlement.
THINK FIRST, WRITE LATER: SIX MODEL QUESTIONS
Acts have consequences, and writing is an act. But you can at least minimize the personal and legal risks by forethought (we'll consider the literary risks in a moment). Ask yourself the following six questions before you borrow Aunt Minnie.
Is What I'm Writing Actually Libelous?
Libel laws vary from state to state; there is no federal law. However, various federal court cases have built up a body of defamation law through interpreting the freedoms of speech and of the press. State courts are bound by United States Supreme Court pronouncements, but in the constantly changing area of libel, this can still create differences among the states in deciding what is libelous and what is not. You can look up individual state statutes in the library.
The strictest interpretations may find you libelous if the real-life model for your character can prove:
• your character was recognizable as the model by members of the reading public, and
• the character was portrayed negatively, and
• as a result the model was injured professionally, emotionally or financially
These are the grounds on which therapist Bindrim won his case against novelist Mitchell in California. However, other states have ruled differently on similar cases.
You probably can't be successfully sued if:
• you disguise Aunt Minnie so completely that not even all her family agrees that your character is her
• you stick to the publicly documented, unembellished truth (If Aunt Minnie's conviction(s) for theft are a matter of public record,
and if you don't add any made-up, unflattering elements to her portrait, you're probably on legally safe ground.) • you say only positive things about the character (If your protagonist is based on your friend Karl, and you portray Karl as an absolute prince, he cannot claim your portrayal defamed him.)
Is Aunt Minnie a Public Figure?
The courts have allowed considerably more leeway to authors writing about public figures than to those writing about private citizens. Don DeLillo's novel Libra, for instance, gave Richard Nixon an extremely unflattering character. But even if Aunt Minnie qualifies as a private citizen, she still has to prove malice on your part in order to successfully sue. She has to prove that you published private, damaging facts that are identifiably about her.
Is Aunt Minnie Dead?
Most states—but, again, not all—hold that a dead person can't be libeled. Maybe Aunt Minnie's story will gain in richness and power if you mull it over for another decade.
If I Am Sued, Who Will Bear the Legal Expenses?
Almost always, you will.
Most novel contracts contain lengthy paragraphs in which you agree that you haven't libeled anyone, or if you have, it's your financial problem. It's also important in this context to remember that anyone can initiate a lawsuit for libel, no matter how unfounded. The case may well be thrown out of court, but by the time it is, you may have already incurred some legal expenses.
Whose Feelings Will Be
When such models recognized their fictional counterparts, there was a variety of consequences. Irascible critic Alexander Woollcott saw himself as the irascible protagonist in George S. Kaufman and Moss Hart's play The Man Who Came to Dinner. Woollcott was so delighted that he toured with the play. On the other hand, Truman Capote's jet-set friends were so undelighted to recognize themselves in ''La Cote Basque'' that some of them never spoke to Capote again.
Consequences can be legal as well as social. An important libel case in California, Bindrim v. Mitchell (1979), resulted from novelist Gwen Davis Mitchell portraying in her novel Touching a character who conducted nude therapy sessions. She was sued by Dr. Paul Bindrim, a therapist who did just that. Even though Mitchell's fictional protagonist differed in several important ways from Bindrim, Mitchell lost the case. Bindrim was awarded a substantial settlement.
THINK FIRST, WRITE LATER: SIX MODEL QUESTIONS
Acts have consequences, and writing is an act. But you can at least minimize the personal and legal risks by forethought (we'll consider the literary risks in a moment). Ask yourself the following six questions before you borrow Aunt Minnie.
Is What I'm Writing Actually Libelous?
Libel laws vary from state to state; there is no federal law. However, various federal court cases have built up a body of defamation law through interpreting the freedoms of speech and of the press. State courts are bound by United States Supreme Court pronouncements, but in the constantly changing area of libel, this can still create differences among the states in deciding what is libelous and what is not. You can look up individual state statutes in the library.
The strictest interpretations may find you libelous if the real-life model for your character can prove:
• your character was recognizable as the model by members of the reading public, and
• the character was portrayed negatively, and
• as a result the model was injured professionally, emotionally or financially
These are the grounds on which therapist Bindrim won his case against novelist Mitchell in California. However, other states have ruled differently on similar cases.
You probably can't be successfully sued if:
• you disguise Aunt Minnie so completely that not even all her family agrees that your character is her
• you stick to the publicly documented, unembellished truth (If Aunt Minnie's conviction(s) for theft are a matter of public record,
and if you don't add any made-up, unflattering elements to her portrait, you're probably on legally safe ground.) • you say only positive things about the character (If your protagonist is based on your friend Karl, and you portray Karl as an absolute prince, he cannot claim your portrayal defamed him.)
Is Aunt Minnie a Public Figure?
The courts have allowed considerably more leeway to authors writing about public figures than to those writing about private citizens. Don DeLillo's novel Libra, for instance, gave Richard Nixon an extremely unflattering character. But even if Aunt Minnie qualifies as a private citizen, she still has to prove malice on your part in order to successfully sue. She has to prove that you published private, damaging facts that are identifiably about her.
Is Aunt Minnie Dead?
Most states—but, again, not all—hold that a dead person can't be libeled. Maybe Aunt Minnie's story will gain in richness and power if you mull it over for another decade.
If I Am Sued, Who Will Bear the Legal Expenses?
Almost always, you will.
Most novel contracts contain lengthy paragraphs in which you agree that you haven't libeled anyone, or if you have, it's your financial problem. It's also important in this context to remember that anyone can initiate a lawsuit for libel, no matter how unfounded. The case may well be thrown out of court, but by the time it is, you may have already incurred some legal expenses.
Whose Feelings Will Be
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