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I'm trying to understand the verdict in Red Hat Club case. Vicki Stewart sued author Haywood Smith, claiming that a character in Smith's books was defamatory - that the character was clearly based on Stewart, and portrayed as a sexually promiscuous alcoholic.

The jury found in favor of the plaintiff, on the grounds that the supposedly fictitious character, SuSu, was too much like "the real thing." Did the writer lose the "Red Hat Club" suit because her character was not "random" enough?

Now I'm not above casting a "generic" rural poor Southern white female character modeled after a real person. I might have my character attend barbecues and eat pulled pork, just like her real life counterpart. On a slightly derogatory note, I might even have such a character carry a shotgun in the back of a pickup truck (if that's what such people do).

But it seems to me that Smith went far beyond casting a generic character as her protagonist. Instead, the "back stories" of Stewart and SuSu are eerily similar. That is both Stewart and SuSu were widows of men who died in car crashes and left her the insurance, both women remarried men who had other love interests and commitments, identical business interests, and ran off with the heroine's money. Stewart had a daughter named Mindum, and "Susu, a daughter named "Mignon." Heck, even Stewart and "SuSu" sound somewhat alike.

While it's probably true that there are many poor southern white females that attend barbecues and drive pickup trucks (in my characterization above), is it fair to say that Stewart was "unique" (or nearly so) in having the other kinds of experiences discussed in the previous paragraph? And could it be this uniqueness (or specificity) that made her "too easy" to identify, and therefore likely to prevail in a lawsuit?

Where's the line here, of what's considered OK (or at least, defensible) and what isn't?

  • Glad to help, and glad you're pleased with the result! I'll leave comments so the community can see the conversation for a couple more days, then clean up :) – Standback Jan 5 '15 at 18:36
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There are traditionally three active defenses against charges of libel, slander or defamation.

  1. Yes, it is mean and nasty but it is true. (I called her a ^bad-word^ and she is, see: here is the proof.) The standards of evidence is lower in this case, it only needs to be compelling, not a preponderance thereof.

  2. Well, it is not true, but it is nice. (As far as I know this has never been used in court because no one objects to nice things being said about them.)

  3. It was not said about you. This is the one relevant to your question. Normally for works of fiction this can be used to get the case thrown out during motions. And research into de-anonymization has the potential to make this more contentious. Two sub-variants that are still effective are that the character was based on another specific person, and that the character is based on a random model, but you better have the data to back it up. (and if you are basing it off of a real person, pick someone disliked or dead or both.)

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In the "Red Hat Club," it seems to me that the author was drawing on a SINGLE woman for the inspiration of her main character, rather than a generic "type."

One of the tests I use is, are there 100, or better yet, 1000 people who could be the inspiration for the fictitious character? Or is she described so exactly that there could only be one person (or a handful of people) in the world who fit the description? I wonder if there are as many as 100 women in the whole United States that broadly fit the background description of "Susu." If only 3-5 five of them come from Georgia, that narrows things down even further, perhaps too much.

In writing my own fiction, the first thing I do is to change the names, ages, and often the gender of any "real life" children involved. That's an easy "fix," one that the author didn't use. Instead, the name of her heroine's daughter, Mignon, was a barely-disguised version of the real life "Mindum." And giving the fictitious heroine the same marital history, down to some pretty excruciating details, didn't help either. During the trial, the court noted some 30-odd similarities between Susu and Vicki Stewart, with quite a few of these similarities being "unique," rather than "generic," e.g., female, poor, rural, works with her hands, comes from the U.S. South, etc.

In this case, the issue doesn't seem to be "Could Susu possibly be Vicki Stewart?" but more like, "how could she be anyone but Vicki Stewart?" If the latter is the case, the author hasn't taken sufficient care to disguise the character.

I'm not a lawyer, so I'm answering as a writer, and more to the point, a potential juror, i.e. "finder of fact."

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