Thursday, February 28, 2013
The Case of the Elderly Flight Attendant
How do you turn friends into enemies? Put them in your novel and make sure they can recognize themselves.
Haywood Smith's novel, The Red Hat Club, included a character named "SuSu." In the book, SuSu received a large insurance settlement after her first husband was killed in a car accident. Later, she became engaged to a man who owned nursing homes in Florida and was already secretly engaged to another woman. This man eventually stole SuSu's insurance settlement, moved to Florida, and transferred his assets to his mistress. Although a court awarded SuSu $750,000, she was unable to collect it. Then, at the age of 50, SuSu became a flight attendant.
(Okay, so 50 isn't elderly. I should know, because I've already passed that milestone. But I needed a catchy title, and 50 is an advanced age to start a new career as a flight attendant.)
Why did Smith's novel draw her into a lawsuit? The facts summarized above weren't unique to her fictional character. They also fit her real-life friend, Vickie Stewart. Still, Smith might have been fine if she had stopped there.
But, unlike the real-life model, SuSu was a sexually promiscuous alcoholic who drank on the job. So Stewart sued for defamation.
Smith argued that fiction can never be defamatory, and she asked the judge to throw the case out without a trial. When he refused, Smith appealed.
Like the judge, the appeals court rejected Smith's argument. The court said that fiction could be defamatory if the statements were about an identifiable person. The appeals court held that there were enough factual similarities to let a jury decide whether readers would identify Stewart with SuSu. Then it sent the case back to the lower court for a jury trial.
The jury concluded that readers who knew Stewart would realize that SuSu was based on her. And since there was no evidence that Stewart was a sexually promiscuous alcoholic, the jury also found that Smith defamed her.
So what do we learn from the case of the elderly flight attendant? Just because you write fiction doesn't mean you won't be sued for defamation--or that you can't lose.
If you want to write about real people and situations in your fiction, change enough facts to disguise the characters. This requires time and creativity, but it could avoid hard feelings and a lawsuit. And your writing will be better for the effort.
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Stay tuned for next month's post on the case of the traveling food critic.
Kathryn Page Camp