‘Shakespeare wrote his best work during a plague’ – did you know that? This particular statement has done the rounds since the Prime Minister announced the nationwide lockdown in March, and everyone from budding writers to bored housewives in the national press have toyed with the idea about whiling away all this home-time by putting pen to paper to become the next bestseller.
Of the many reasons not to pursue a novel/screenplay – the hard work, the lack of innovative ideas, the publication costs, not being a good writer – one of the less discussed is the potential for accidentally inviting a defamation claim. Surely a fictional character can’t be defamatory? And even if it is based on a real person, can’t you just change the names? You might think so, but it might inadvertently land you in a lot of trouble.
Defamation of character solicitors have seen s cases where a character in a fictional production comes a bit too close to a real person. Just a few years ago, the actress Scarlett Johansson successfully sued a French novelist over a promiscuous and unscrupulous young blond and very Scarlett-like female character.
Hollywood films like the Wolf of Wall Street have been plagued by angry stocktraders threatening defamation claims in the US. Before that, defamation of character UK-wise, in the 1970s, one author accidentally gave an incestuous aristocrat character the same name as a very real and very angry aristocrat that resulted in his book needing to be republished at great expense.
One of the foundation cases in English libel law, Youssoupoff v MGM, concerned the wife of one of the men who had killed the Russian priest/royal wizardGrigory Rasputin. In light of the revolution, Mr (Prince)Youssoupoff was much congratulated for the murder, particularly for the exciting way in which Rasputin proved so hard to kill. So much so that in the 1930s, Hollywood produced a film about it.
In the film however, a character bearing a similar name and likeness to Princess Youssoupoff is shown being raped and subsequently entering into a sexual relationship with Rasputin. The popularity of the film was outweighed by the Princess’ dismay at seeing herself portrayed in such a way. The resulting defamation claim, which found in her favour, gave rise to the oft-seen disclaimer in many fictional works ‘any similarity to actual persons, living or dead, is purely coincidental’.
Yet even this might not be enough. One of the key requirements for a claim in defamation in England and Wales is the identifiability of the claimant, and the general rule is that it is immaterial whether or not the author intended to refer to them. Rather, whether the claimant is identified or not is down to the ‘reasonable person’. This means that you need to be careful. And if its crime fiction you’re into, you don’t want to accidentally defame a gang baron, as the author DJ Taylor found out.
Therefore, if you need a disagreeable or depraved character in your book, its best to stray away from likenesses. Of course, some people might be flattered about inclusion in a story, but if the description is likely to do serious harm to their reputation, it is an expensive decision to make, as it might give rise to a defamation claim.
Sometimes, of course, you might want to write a thinly-veiled dig at someone, particularly if it serves a satirical purpose. If you can show that there is a public interest element to your work it may serve to be an effective defence. But if you hurt someone’s reputation, particularly a public individual, don’t expect them to take it lying down!
Best lawyers for defamation of character, Taylor Hampton Solicitors specialise in claims for defamation and provide consistent expert advice to help protect your reputation.