From the “Scaring the Shit out of You Department”

Ahoy there, scary precedent. With my newly-minted JD, courtesy of our “hostile takeover” by Dear Author Media Network on 1 April, I am free to offer my exceptionally sharp legal analysis of this case:

In a rare defamation case over a novel, the Georgia Court of Appeals has cleared the way for a suit by an Atlanta woman who claims an alcoholic, promiscuous character in the book “The Red Hat Club” too closely resembles her.

Vickie Stewart has sued local author Haywood Smith and St. Martin’s Press over Smith’s 2003 book about five red hat-wearing, middle-aged Buckhead ladies plotting revenge against the philandering husband of one of the group’s members. The book hit No. 15 on the New York Times best-seller list.

The “Red Hat Club” in the book resembles the real-life Red Hat Society, a group of women who wear red hats and purple clothes to embrace, according to the organization’s Web site, “fun after 50.” The site claims the society has 40,000 chapters around the world.

A disclaimer in the book says it is a work of fiction that has not been endorsed by the Red Hat Society…. Stewart, the plaintiff, says that unlike the “SuSu” character in the book, she is not an atheist, a “right-wing reactionary” or a promiscuous alcoholic. But she says she bears too striking a resemblance to the character in other ways.

Here is my analysis: Holy shit.

Graceful curtsey to Theresa for the link.

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  1. 1

    Can you imagine all the disgruntled people out there who are going to start claiming that they were defamed in their ex’s, neighbor’s or neighbor’s ex’s romance book hoping for a bit of cash from the “amazingly wealthy” writers they know?  Holy shit, indeed. 

    Kind of puts a whole new spin on things.  Now not only can people write unmemoirs and pass it off, but we can aparently sue people for having imaginations and taking elements from real life to put into their books!

    What an utterly craptastic mess!

    Spaminator: major33 Uh, yeah.  As in if this goes to past the appelate court level to the Supreme Court, we as “fiction” writers are screwed and open to lawsuits from any nutball pissed off enough to think we were talking about “them” in our books.

  2. 2
    Lara says:

    Well, this means that Laurell K Hamilton’s ex-husband can now legitimately complain about the constant bashing and idiocy forced on the character of Richard.

  3. 3
    Kalen Hughes says:

    unlike the “SuSu” character in the book, she is not an atheist, a “right-wing reactionary” or a promiscuous alcoholic. But she says she bears too striking a resemblance to the character in other ways.

    WTF? I had always understood that by changing such major points you were protecting yourself from just such a suit. What is this judge thinking?

  4. 4
    Chicklet says:

    So how many people in Atlanta connected the plaintiff with the fictional character before she brought her suit? Fifteen? Maybe twenty?

    How many people connect Vickie Stewart and SuSu now? Everyone who’s read anything about the case, which I wager is quite a bit more than 15-20. Talk about cutting off your nose to spite your face.

  5. 5
    KimberlyD says:

    I’d like to see an author that does not write about real life situations and characterisitics of people they know. Write what you know is an old but valid cliche. That doesn’t mean that any particular character is supposed to be the spitting image of any one person. Thats what all those huge ass changes are about-the whole alcoholic, atheist, etc. crap. I hate stupid lawsuits.

  6. 6
    Deb says:

    WTF???  That is just insane.  The woman needs to have her head examined.  Or maybe she should become a promiscuous alcoholic…

  7. 7
    Stef says:

    Good thing the pistol totin’ granny, tax client from hell who I ‘loosely’ based a character on is long dead and buried.  Although she was just mean enough, she may come back and sue me anyway.  That’d make her a zombie, right?  No sweat.  I’ll make the next Pink installment a paranormal.

    I’m with Kalen – what was this judge thinking?  This has frivolous written all over it.  Also bullshit, but I don’t think that’s a legal term.  Yet.

  8. 8
    Rachel says:

    What was it Anne Lamott said?  Something along the lines of, if you loosely base a character on someone and you’re afraid they might complain, do your best to hide it as much as possible…and make sure you give the character a really small penis.  That’ll shut him up.

    No idea what the female equivalent of that would be, though.

    (By the way—Stef, I’m reading your book right now, and loving it.)

  9. 9
    Erin says:

    If you keep reading the article it talks about what the “other ways” are, and I have to agree that though the author did change major things and that the person and the character are very different, you can kinda see her point. See her point all the way to a law suit? Na. Maybe I’d TP her house, though. Or make her buy me a cheesecake for proving to be such an influential model for her character.

    I think it’s mostly a case of laziness on the part of Stewart, who couldn’t even be bothered to change the name of the high school the character went to.

    I agree that it’s an incredibly dangerous ruling, though. 

    Well, this means that Laurell K Hamilton’s ex-husband can now legitimately complain about the constant bashing and idiocy forced on the character of Richard.

    Aaah…so that’s what happened…

    Spam word: were87. I believe Anita Blake has sampled the sexual offerings of approximately 87 were creatures.

  10. 10
    Brit Blaise says:

    Insane is putting it mildly. This is the proverbial can of stinking worms.
    Is the woman a public figure? Did the author know her? This is nonsensical.

  11. 11
    Kismet says:

    Oh crap. I guess I had better hope that my WIP never gets published, or else Kate Beckensdale might notice her physical resemblance to my heroine. Darn brunette heroine might get me into trouble ;).

    I agree with Kalen, what was that judge smoking?

  12. 12
    Brit Blaise says:

    Okay… “the record shows that Stewart and Smith have known each other for more than 50 years”

    So they did know one another. And lived down the street from one another as children, and graduated from the same high school, according to the court records.

  13. 13
    Alanna says:

    This isn’t just some crackpot claiming a person in a book must be her.  This is about a falling out between two old friends, one of whom did pretty clearly base a lot of an unsavory character on the other.  Whether or not that’s libel, I don’t know—I tend to doubt it—but this isn’t made-up or frivolous.  I doubt she’ll win in court, but the judge is 100% correct to give the plaintiff her day in court.

  14. 14
    Jenns says:

    Interesting.
    The really scary thing is, as was mentioned above, what if everyone who sees themselves in a book comes forward?
    What a mess.
    And, Stef – I’m still laughing at your post. :)

  15. 15
    kambriel says:

    Huh.  Well, personally, if I thought a right wing reactionary promiscuous alchoholic atheist was based on me you wouldn’t see me going around telling everyone. 

    Being thought to be a right wing reactionary would be horribly embarrassing.  Of course, all my friends know I’m not an atheist.

  16. 16
    Jana Oliver says:

    The answer is to only write about yourself in the guise of various characters. Of course your stories will suck, but you won’t be sued.

    And if you do sue yourself, think of the publicity…

  17. 17
    Jana Oliver says:

    Only 87 were creatures? Darn. I lost track somewhere.

    Gee, can they sue?

  18. 18
    Chicklet says:

    Whether or not that’s libel, I don’t know—I tend to doubt it—but this isn’t made-up or frivolous.  I doubt she’ll win in court, but the judge is 100% correct to give the plaintiff her day in court.

    Point taken. But like I said above, even if she wins a settlement, the net result is that a hell of a lot more people associate her name with the fictional character than before. If I were in a similar situation, I’d just as soon forgo any money or public apology and keep my name as far away from the novel as possible.

  19. 19
    rebyj says:

    the black ferrets weren’t offended, why is this woman so out of sorts?

  20. 20
    Denni says:

    Bitch needs to get over herself.  Anyway, what sane person insists that trampy, nasty character is me?

  21. 21

    This reminds me of a disclaimer on a site with Bill Gates/Steve Job slash: Probably only a few people have read my fanfics. However, if you (Gates or Job) sue, everybody will find out about these stories. (Paraphrased from bad memory)

    I doubt46 that this case will go in Stewart’s favor.

  22. 22
    Esri Rose says:

    Doesn’t every book have that “any resemblance to persons living or dead is coincidence” thingie on it? I mean, what is that for, if not for stuff like this?

    Goober.

  23. 23
    Jana J. Hanson says:

    From my reading of the article, the case hasn’t gone to trial yet.  So they appealed a summary judgment order? 

    I must read this opinion!!

    It’ll be interesting to see the jury verdict if the case was remanded back to state court. 

    Wow!!

    And did you see the case law the judge cited?  It features none other than…Hulk Hogan!! 

    The things that happen down South….

  24. 24
    Julianna says:

    //what sane person insists that trampy, nasty character is me?//

    Just what I was thinking.  Alexander Pope had some good line about satire being safe because who the hell wants to stand up and say that yes, that self-absorbed sexually devient talentless poet in Mr. Pope’s latest poem was based on me, and I’m furious.

  25. 25

    Likely the person who doesn’t really care about their public image, but is more interested in the dollar signs floating in front of their eyes…

  26. 26
    Lynne says:

    Hmm. One angle I haven’t seen discussed yet is that people who make a name for themselves and achieve some degree of fame have often made enemies somewhere along the way. Even the most saintly person will have pissed a few people off here and there.

    I think it’s important for writers not to give their enemies (known as well as unknown) easy ammo to use against them. Writing about a character who had 20-odd points of similarity with someone the author had known for more than half a century was risky, IMO. And adding those unflattering bits about promiscuity and alcoholism was not a wise move if the other details were as easily recognizable as it sounds from the article.

  27. 27
    Brandi says:

    Aside from the topic proper: anyone else find a grimly humorous irony in how a little poem about no longer giving a damn what people think turned into some kind of big fat club with chapters and rules and offical events and sanctioned/licensed merchandise?

    [Anti-bot word: sales16. The “sales” part seems about right for the Red Hat Society, anyway.]

  28. 28
    Cora says:

    There was a similar court case in Germany about a year ago, where author Maxim Biller was sued by his ex-girlfriend and her mother, because they believed that characters in Biller’s novel Esra were based on them (the mother actually complained that she wasn’t nearly as annoying as the mother in the book in real life). Now Biller apparently had drawn a bit closely from real life, but he and his publisher offered to make changes to the book, which the women refused. They went to court and – that is the shocking thing – won. The novel was banned, because some idiot judges believed that these women’s personality rights were more important than freedom of speach and freedom of the arts. Not satisfied to have removed the novel from bookstore shelves, the two women started a civil suit against Biller, demanding damage payments. I guess that’s where they showed their true colours.

    Now I don’t give a damn about Biller, he comes across as a very obnoxious person in every interview with him I’ve ever seen or read. But the possible repercussions for all authors are scary.

  29. 29
    Charlene says:

    Doesn’t every book have that “any resemblance to persons living or dead is coincidence” thingie on it? I mean, what is that for, if not for stuff like this?

    Disclaimers are meant to dissuade people from deciding to sue in the first place. They don’t prevent anyone from suing, and they won’t have any result on the judgment. After all, if the above disclaimer could stop someone from suing a writer, the disclaimer “this is an original work of fiction” could stop a plagiarism victim from suing. The proof has to be in the book itself, not in a few words tacked on.

    Incidentally, the history of that specific disclaimer is especially sordid. It was first used after a court case involving the movie “Rasputin and the Empress”, where a character who was the Tsar’s niece and the wife of Rasputin’s murderer was shown to have been raped by Rasputin. Sadly for the studio, Princess Irina, who was the tsar’s niece and Felix Yussupov’s wife, had survived the Revolution. She also had not been raped by Rasputin, and was enraged at the movie’s imputation. She sued for libel and invasion of privacy, and won a (for the time) enormous award.

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