Authors of fiction books (or other creative works) often use real persons, events, and experiences to inspire their storytelling—and sometimes add unflattering character descriptions and behaviors that do not accurately depict the person on whom the character is based.
But simply labeling such a book or creative work as fiction or a novel will not automatically protect it from being defamatory of the person or persons on whom the characters are based. Similarly, when the author uses the real names of persons and places, simply labeling the book as fiction or a novel will not prevent its readers from reasonably believing the book is nonfiction.
In a libel lawsuit based on such a published book or creative work, the test for determining whether it is libelous is whether the reader could interpret the book or creative work as stating actual facts about the person depicted, or actual events in which the person participated. In other words, for the depiction of a fictional character to constitute actionable defamation, the description must be so similar to the real person claiming to be defamed that a reader of the book—knowing the real person—would have no difficulty linking the two. Thus, superficial similarities are not sufficient.
But this does not mean that everyone who reads the book must understand that the fictional character is based on the plaintiff. Instead, what matters is whether people who know the plaintiff can understand that the character in the book was meant to depict the plaintiff.
To make an actionable claim for defamation, a libel-in-fiction plaintiff must prove (1) publication; (2) defamatory meaning; (3) false statement; (4) identification (also known as the “it’s me” or the “of and concerning” requirement); and (5) damages.
Plaintiffs in libel-in-fiction lawsuits are increasingly using other tort or legal theories—such as false light (a form of invasion of privacy) and misappropriation of image and likeness—rather than libel claims—in an effort to avoid the high bar the First Amendment sets for plaintiffs in libel claims.
And in some fictional writings the author uses humor, irony, exaggeration, and ridicule that may qualify as satire or parody—and is thus not defamatory, because it cannot reasonably be understood as stating actual facts about the person depicted.
