Out of Whole Cloth?

by Anthony D'Amato

Barbara D"Amato: Quite often when I'm on a panel at a writing workshop, someone in the audience will ask, "Can I use real people and places without being sued for libel?" I have said, "Your protagonists can have lunch at McDonald's, but they can't find a fried mouse in the quarter-pounder." The issue is actually more complicated -- and probably too complicated for a brief panel answer. I asked Tony D'Amato to guest blog today. Tony is a professor of law at Northwestern University in Chicago.


A successful French novelist is being sued for two million dollars by a famous Parisian fabric store for setting her story in their établissment. Lalie Walker’s book features voodoo at the Marché St. Pierre, abductions of the store’s staff, a crazed killer, and a mysterious malaise affecting the “kingdom of fabric.”

Tech Dirt is one of the internet blogs that carried the story, and Dark Helmet is one of the readers who has posted a comment: “I find it nearly impossible to not include the city of Chicago and the surrounding areas as chief setting locations, strictly because my familiarity with the area means I can write more believable setting descriptions.”

With a little surfing I discover that Dark Helmet is author Timothy Geigner. He quotes with approval the writer of the blog, Mike Masnick, who says that “most characters that novelists write are loosely based on people they know... and exaggerated or composited with others. That's how you create realistic believable fictional characters.”

My wife’s investigative reporter Cat Marsala lives on Franklin Street in Chicago. If she had to change the name of the street and the city to avoid being sued for defamation, how could Alzina Dale write her “Walking Tour” books where she visits and describes the places where fictional sleuths like Ms. Marsala live and work? How could the movie “Some Like it Hot” state in bold letters that it took place in Chicago and then go on to film the St. Valentine’s Day Massacre with George Raft on the machine guns and Tony Curtis and Jack Lemmon witnessing the proceedings from under a car?

You’re entitled to exaggerate. For example, a theater critic who writes that “the producer who decided to charge admission for that show is committing highway robbery” would be immune from liability because no reasonable reader would understand the critic to be accusing the producer of an actual crime. On the other hand, if you accuse a real identifiable person in your novel of having committed a crime, you can not only be sued for defamation but the person does not even have to prove damages—what you’ve written is libelous per se. And you don’t escape by changing his name. For example, a Massachusetts newspaper reported that a Brookline deli owner was involved in an “Israeli mafia” cocaine operation out of his deli. Although the owner was not named in the news reports, he successfully sued for defamation because the news story could reasonably be understood to refer to him.

Of course a newspaper is not a work of fiction so that made the deli owner’s case easier. But suppose you really wanted to get revenge on someone and worked it into your novel. Let’s say your target happens to be the mayor of the town you live in who once lied to you and jilted you. So you change the name of the town, change the name of the mayor, make him 8 inches shorter, give him glasses, sport him a bow tie with polka dots, add ten years to his age, and give him a pot belly. Then you really let him have it. You say that he was arrested for sexually abusing a child and that he paid off the cops and the judge and successfully covered it all up—true in the novel but false in the real world. If the mayor’s friends knew about your past encounter with the mayor and are able to see through the disguises in your book, he can sue you for defamation because you accused him of a crime. If you say that the story about sexual abuse was just another disguise like the bow tie and pot belly—well, it won’t work. The jury will see right through it.

Nevertheless, if I were Lalie Walker’s lawyer, I’d countersue the Marché St. Pierre for using the lawsuit itself to stimulate business. They knew or reasonably should have known that Ms. Walker’s intent was homage and not dommage.