Defamation cases are hard ones in the real world.
Recent US matters involving Dominion Voting, Sara Palin, and even Cheetos show that these cases continue to interest the general public as well as legal cognoscenti. Resolving these lawsuits is dependent on understanding concepts of truth, accuracy, fact, opinion, and all manner of issues that define the context of the statements at the root of the claims. As one U.S. court noted in upholding the dismissal of a defamation claim, the law “provides redress for injuries to a person’s reputation…caused by statements that ‘tend[] to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community,’” but “a threshold issue for resolution by the court is whether the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it.” As the court went to note in that case, Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997), “[t]he court’s threshold inquiry is guided not only by the meaning of the words as they would be commonly understood but by the words considered in the context of their publication,…as well as ‘from the expressions used as from the whole scope and apparent object of the writer.’” In the end, to succeed, a defamation suit plaintiff “must prove that the defendant published a false, defamatory statement ‘of and concerning’ the plaintiff with a certain degree of fault,” as one source summed it up. To paraphrase my opening above, “[f]amously, defamation cases are hard for plaintiffs to win, and purposefully so,” and this is especially so in the United States.
Defamation cases are even harder in fictional worlds. (I am not talking about suits in the raising claims of defamation of avatars in virtual worlds. While commentators have long sought to justify applying real-life consequences to Second Life settings and its avatars or to protect as important online gaming personas, and more recently have repeated such musing as to virtual reality platforms and other augmented reality forums, these settings seem one step further removed from what should come into our courts.)
I am talking about cases, somewhat frequently filed, where a real person claims that a novel, television show or other fictional work defamed them. Those are hard cases legally and raise all manner of interesting issues as to what “fact” and “truth” mean in many settings. See, e.g., Robert Richards analyzed them in some detail in When Ripped from the Headlines Means See You in Court: Libel by Fiction and the Tort-Law Twist on a Controversial Defamation Concept at 121 (“’[t]he gradation from fact to fiction in creative works—or more likely, from representational fact to fact-infused fiction—raises difficult issues about the balance between private rights and First Amendment interests.” The difficulty of so-called “libel by fiction” cases struck me recently (though not for the first time, albeit there more as a matter of copyright and publicity rather than defamation) when I read that Nona Gaprindashvili recently settled the earlier lawsuit that she had brought against Netflix over The Queen’s Gambit, a fictional streaming series based on a 1983 eponymous novel set in the 1960s chess world.
Nona Gaprindashvili sued Netflix in September 2021 for “false light invasion of privacy” and defamation after a line in the hit series stated that she “never faced men” at the chessboard. In reality and in the novel that was the series’ source material, Gaprindashvili faced male opponents in chess matches during her career, including three world champions (grandmasters Mikhail Tal, Boris Spassky, and Viswanathan Anand), and in fact, the novel on which the series was based had said “[t]here was Nona Gaprindashvili, not up to the level of this tournament, but a player who had met all these Russian Grandmasters many times before,’” as a commentator noted. Gaprindashvili had leverage to settle that case because a California federal district court had ruled in 2022 that “[a]s an initial matter, Netflix does not cite, and the Court is not aware, of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works. On the contrary, the fact that the Series was a fictional work does not insulate Netflix from liability for defamation if all the elements of defamation are otherwise present.”
It does not seem to me that all of the elements of defamation are ever so present in an avowedly fictional work. I understand that the Gaprindashvili, and that California court (at 11-14) in its opinion, obviously disagrees with my conclusion. I am going to talk it through anyway.
Before jumping back into discussing that case directly, it is important to discuss defamation law a bit and to discuss the concepts of “fact” and “truth” that create the context in which one must assess how defamation and the novel evolved together. The “civil tort of defamation provides a legal forum where truth can be separated from fiction,” as Sean Latham wrote in The Art of Scandal: Modernism, Libel Law, and the Roman a Clef (Modernist Literature and Culture), 1969 (Kindle Version), at Location 1218. That plays directly into the “basic generic distinction between history and fiction”:
The former…”is a narrative discourse with different rules than those that govern fiction. The producer of a historical text affirms that the events entextualized did indeed occur prior to entextualization. … We thus recognize historical narrative primarily by a shared assumption that it is always a secondary description of events that preceded its narration. …Fiction, however, is “certainly otherwise, for in fiction the events may be said to be created by and with the text. They have no prior temporal existence, even though they are presented as if they did.
[Latham, supra, at Location 239]
Defamation law’s distinction between fact and fiction thus played a role in the rise of the novel:
libel laws played a vital institutionalizing role in the novel’s rise during the eighteenth century, effectively creating a set of legal definitions designed to separate political discourse from fictional invention.
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This legal distinction between fact and fiction created the consensus upon which the growing autonomy of the nineteenth-century aesthetic sphere was staked, consequently forcing, as Davis concludes, “writers who wished to write about the world away from such overtly political modes as the one offered by the newspaper and toward a more protected form of writing” such as the novel.
Interestingly, in light of the whole libel by fiction category, the novel originally evolved in part as a fictional genre thought to “afford[] authors a vital degree of legal protection,” Latham, supra, at 1247. The Gaprindashvili decision expressed a contrary approach.
The title of this piece purposely plays on that fact/fiction border and the idea that “truth” is a defense to, and untruth a requirement for, defamation. Viscerally, the very idea that the statement at issue here—that Gaprindashvili “never faced men”—was untrue would seemingly establish the first element of a defamation claim, namely that the statement was an untrue assertion of fact. While the statement is untrue, so is everything else in The Queen’s Gambit in a very real sense. It is a work of fiction, and for a defamation action “to be viable, it must be based on an assertion as fact material which is false or the implication of an assertion of fact which is false,” as noted in Winter v. DC Comics, 121 Cal. Rptr. 2d 431, 438 (2d App. Dist., 4th Div. 2002)(citing Milkovich v. Lorain Journal, 497 US 1, 18 (1990), and affirming dismissal of defamation claims related to comic book depictions). Thus, while untrue, it is hard to imagine that the contents of a novel would ever be seen as “an assertion of fact.” Richards, at 133 (“works of fiction, regardless of their resemblance to reality, are, at core, not real.”); O’Neil, Fiction, Defamation, and Freedom of Speech, at 866 (“Even when they do put real people in their stories and depict them as doing bad things, the audience is still usually meant only to imagine the real people doing bad things.”) (emphasis in original), and 871 (“the content of fiction is paradigmatically invented or made up”). So the cry that “that’s not true” is far from a damning admission establishing an element of the claim; rather, it is an observation establishing that that phrase means something very different than the words convey no truth–the screenwriter’s goal here was not what’s true as a factual assertion, but what expresses, though fictional, an artistic truth.
That was the “whole scope and apparent object of the writer” of this line in the series, and courts should perhaps recognize that works of fiction are “not produced in a way that is reflective of the world as it actually is,” as Sara Worth notes (with her own emphasis), and as I noted recently as to rap music.
Therein lies the rub. In courts, truth and fact are oft’ viewed as synonymous concepts. While Flannery O’Connor’s notes that “the basis of art is truth, both in matter and in mode” and
Keats’ that “Beauty is truth, truth beauty./That is all ye know on earth and all ye need to know,” “fact” and “truth” are not synonyms in the creative world. This dichotomy is well exemplified in Melville’s line in Moby Dick that “Queequeg was a native of Rokovoko, an island far away to the West and South. It is not down in any map; true places never are,” as I have mentioned in the past.
Artists are much more concerned with such “truths” than with particular accuracy as to the “facts,” and admit to their disjuncture:
Maybe art does not capture the truth, by which I mean some form of ongoing, lasting, unchanging truth. That seemed clear with respect to the changeability of human perception. Perhaps our answer is this: Art is just a momentary glance. And in this nanosecond of capture, we get some sort of momentary reality. I think Dutch still life paintings are much like this because we are aware that the food will rot, the dog, the monkey and the parrot will leave, and so forth.
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But perhaps there is another route. Even if we paint the world as we see it, we may accept that others see it somewhat differently. Even so, we may suggest that there is still something important that is shared in the art. Considering Monet’s cathedral we get a feeling of the day, of the light he captured from his apartment window as he looked across the square to the building. I have pointed out what I think is the Platonic view versus the Aristotelian view of the world. On one hand Plato said an artist was “an imitator of images and is very far removed from the truth” (Republic X, 27). On the other hand, Aristotle said, “The aim of art is not to represent the outward appearance of things, but their inward significance.” (Attributed to Aristotle by Seneca in On Tranquility of Mind).
I think that often art does function metaphorically, and we realize some truth through it.
[Christopher Willard, Art: The Lie That Tells The Truth, Medium, September 24, 2019 (emphasis in original)]
In the Queen’s Gambit screenplay, having a chess talent like Gaprindashvili excluded in that fictional world from competing with men spoke to the writer’s non-factualized truth and the subjective truth of that art for others. As “Pablo Picasso stated in a letter of 1923 to Marius de Zayas, ‘We all know that Art is not truth. Art is a lie that makes us realize truth.’” To make the artistic point, the series bent the actual truth, and maybe Gaprindashvili in that sense was not defending her real honor in the California suit but the honor of some identically named avatar in a fictional world of another’s creation. It seems unnecessary to support such defamation actions, as noted above.
Of course, there are countervailing considerations with letting fiction writers totally off the hook for getting the “facts” right. In many ways, the Gaprindashvili case was an easy, focused one, dealing with a passing reference to a real person and a single factual difference between that person’s real and fictitious history. There was no doubt, therefore, that the statement was one that on its surface seemed unassailably to be “of or concerning” Gaprindashvili. In other contexts, though, even such basic and directed facts may not establish a defamation claim. We see this, as one commentator notes (at 880-81), in the case brought against the movie American Hustle, where a fictional character’s untrue statement about a specific real person was held non-defamatory because “the audience ‘would not expect anything [that character] says to reflect objective fact.”
The more troublesome cases come from works that (arguably) track much more of a subject’s real life, then deviate, perhaps with a name change or biographical detail, to create a widely different series of defamatory acts attributed by the reader or viewer to the model for the character as well as the character. Such so-called “libel by fiction” cases have existed for some time, and have been analyzed by many including Robert Richards in When Ripped from the Headlines Means See You in Court: Libel by Fiction and the Tort-Law Twist on a Controversial Defamation Concept, Matthew Savare in Falsity, Fault and Fiction: A New Standard for Defamation in Fiction, and more recently by Collin O’Neil in Fiction, Defamation, and Freedom of Speech. So while I remain in the camp to which “the concept of defamation in fiction seems counterintuitive,” as Savare recognizes (at 131), I see the need to continue the discussion.
One may believe that the authors who want to create fiction should go all in, and not use the crutch of patterning a character after a real person. As the court noted in Carter-Clark v. Random House, a defamation case arising out of the publication of Primary Colors, “[f]or a depiction of a fictional character to constitute actionable defamation, ‘the description of the fictional character must be so closely akin 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. Superficial similarities are insufficient * * *.’” But, as counsel in one libel case told a jury, this becomes a tempting way to write a story: “One of the easiest ways to make a lie believable is to surround it by truth…[t]he more facts you put around the lie, the more believable it becomes, and that the most effective way to tell a story.” Richards, at 121. Thus, some safeguards appear necessary.
Though, as E. T. Wuddah notes in Defamation Law: A Comparison Of The Law Of Defamation In The Republic Of Ireland And In The United States Of America, 13 FAU Undergraduate Journal 80, 81 (2024), “what constitutes defamation differs over time across different societies…influenced by factors such as religion and culture,” this discussion of more modern US defamation law considerations exists against a backdrop of English and, especially, Irish law and experience. Wuddah, supra, at 84. Focusing on the example of James Joyce’s Ulysses, Latham describes Joyce’s fact-heavy fiction as purposely courting defamation claims:
This use of real names and places, in fact, accounts for some of the peculiar pleasures of Joyce’s text, encouraging readers not only to track references to real people and places in the 1904 Thom’s Directory but to follow the fictional paths of Bloom and Stephen minute by minute and step by step as they make their way through Dublin… Joyce famously declared Ulysses so accurate that “if the city one day suddenly disappeared from the earth, it could be reconstructed out of my book.””
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Just as Joyce deliberately provoked the encounter between law and literature when writing about both obscenity and copyright, so too did he engage the civil statutes of libel that sought to regulate the novel’s engagement with fact.
[Latham, supra, at Locations 1422-23, 1427]
This was Joyce’s chosen artistic aesthetic it seems, adopting despite (or perhaps because of) the associated risk:
In 1912, however, the “nicely polished looking-glass” Joyce hoped to hold up to his native city finally proved too accurate in its fidelity, its intricate details rendering suddenly hazy the increasingly unstable bar between fact and fiction…Roberts and Maunsel, after all, were correct: by using real names and places of business, the stories did run the very real risk of incurring any number of potentially very damaging lawsuits.
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[The use of real names and places] has by now come to seem an integral part of a distinctly Joycean aesthetic in which fictional events are deeply and perhaps inextricably embedded in the historical realities of Edwardian Dublin.
[Latham, supra, Locations 1469-71, and 1485]
Lest one miss that point, Latham pounds it home:
Given his own abrupt introduction to defamation law, there can be little doubt that Joyce knew what he was doing when he began to fill Ulysses with a staggering array of very precise information about his native city. Unlike the stories in Dubliners, which mention only a few public houses and a railway company, Ulysses invokes a vast array of names ranging from individuals to businesses to commercial products.
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Throughout Ulysses, Joyce deliberately and provocatively invokes this genre to probe the boundary between fact and fiction, thereby pitting legal and aesthetic modes of interpretation against one another in a scandalous yet creative conflict.
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Rather than concealing its engagement with historical reality as Victorian novelists typically did by decorously avoiding the names of real people, Joyce uses the roman a clef to destabilize the autonomy of art and the increasingly fraught legal institutions designed to maintain a critical distance between fiction and fact.
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In Ulysses, therefore, Joyce created a work that is blatantly libelous yet seeks to elude that charge in its misdirected names, its aesthetic difficulty, and its deconstructive ironies.
[Latham, supra, Locations 1510, 1574, 1606]
While the obscenity challenges faced, for example, by James Joyce’s Ulysses have greater notoriety, see Latham, supra, at Location 1609, Latham observes that defamation law was the field in which one saw the “turbulent encounter between literature and the law” because “the tort of defamation-by legally separating fact from fiction-provides the framework through which a particular piece of writing is presumed to be pure invention and thus without financial, legal, and moral consequence for living individuals. Despite the fact that libel thus essentially constitutes the law of fiction, however, its importance in shaping modern literary production has been almost entirely ignored.” Latham, supra, at Locations 1146 and 1228-30.
Indeed, it’s been said that the “Irish public [ha]s [a] ceaseless fascination with defamation actions.” (In fact, Ireland is presently considering an overhaul of its defamation law). In older governmental reports, the Irish had examined, in the defamation context, “the peculiar considerations which governed two particular types of factual statements, the first being the fictional …,” and even considered a “proposal that there should be a complete ban on defamation proceedings in respect of fictional works, unless the plaintiff could point to special circumstances which would cause the recipient to suspend his or her belief that the work was fictitious.” That proposal was rejected in favor of a different remedy, namely one that the Irish defamation report described by noting that “the problem in relation to works of fiction might be more appropriately met by imposing a more stringent test of identification where defamatory matter appeared in a fictional context.” Consequently, the Irish “invited views as to whether, in cases involving defamatory matter contained in a fictional context, the ordinary requirement of identification should be supplemented by a requirement that the matter be reasonably understood as referring to ‘actual qualities or events involving the plaintiff.’”
This Irish suggestion makes sense to me. It seems “to strike a balance between two of the rights in the Irish Constitution: freedom of expression and the right to a good name,” as Wuddah notes (at 83, citing Irish Constitution, Art. 40.6.1 for freedom of expression and Article 40.3.2 on requirement that Irish government “shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” (emphasis added) Though the US Constitution does not have that latter express protection, there is a recognition here that one is entitled to protect his or her reputation.
While I can accept the need to protect real people from being defamed in fictional works circulated in the real world, I agree with the Irish suggestion, Richards and others that plaintiffs in libel by fiction cases need to meet a higher standard “to protect the integrity of the creative process,” Richards, at 134, and to avoid any approach that would “have the unintended effect of reinstituting strict liability for defamation of works of fiction,” as once seen in the United Kingdom and the United States. Berna Warner-Fredman, Defamation In Fiction: With Malice Toward None and Punitive Damages for All, 16 Loyola Of Los Angeles Law Review 99, 101 (1983)(citing Hulton & Co. v. Jones, 101 L.T.R. 831 (1909), and Corrigan v. Bobbs-Merrill Co., 126 N.E. 260 (NY 1920)) Richards presents an interesting and useful test (at 135-36) that he calls the innocent construction test. He begins by noting that “[c]reators of works of fiction are entitled to a presumption that their works are indeed fictitious, including the characters portrayed therein.” If a defamation plaintiff sues based on a fictional character, that plaintiff should lose if that “if the character …is capable of being viewed as actually portraying someone other than the plaintiff.” Indeed, “the defense is entitled to that construction as a matter of law” because “[t]o hold otherwise threatens the common creative and literary technique of authors and producers to imbue their characters with realistic qualities.” As Richards goes on to note that “[a]dopting the innocent construction rule in libel-by-fiction cases by having it apply to the ‘of and concerning’ element would effectively reduce such lawsuits except in the most egregious instances.”
So, my title was probably not particularly accurate—one need not decry the novel as not true, but only as not fact (or, as I noted in quoting Bettelhein in that earlier piece alluded to above, “although these stories are unreal, they are not untrue.”). And that is nothing like saying it is necessarily defamatory because it is not a statement of fact. The Richards’ test (or Irish approach if you prefer) seems to leave authors the expressive freedom necessary to seek artistic truth without being limited to actual fact. So, in closing, I will note that many have made observations on fiction writing that are akin to Picasso’s quote stated above where he connected us to the role that art can play in revealing truth: “Writing fiction is the act of weaving a series of lies to arrive at a greater truth,” as novelist Khaled Hosseini aptly stated. I wrote once that “[s]o we too have joined that discussion, which will continue beyond this post and piece.” Having rejoined and moved forward that discussion, at least somewhat I hope, we will leave it here for now. We do so because “[t]he truth is rarely pure and never simple. Modern life would be very tedious if it were either, and modern literature a complete impossibility!,” as the Irish playwright wrote in the first act of The Importance of Being Earnest, A Trivial Comedy for Serious People.
