Can You Be Libeled Or Defamed By Fiction?

It’s a question that seems to be popping up with increasing frequency. Kathryn Stockett, author of The Help, has been sued on the grounds that she ripped off the life of Ablene Cooper, who worked for Stockett’s brother’s family for more than a decade (and a major plot point in The Help itself hinges on the question of whether you can defame someone if they can’t prove it’s them you’re writing about). And now an Iraq veteran’s case against Kathryn Bigelow and Mark Boal, arguing that they misappropriated his life as the source material for The Hurt Locker and defamed him in the process, is going forward, though it seems likely that the defamation claims will be thrown out and the case will end up focusing on the charges that they used his story without his permission.

I come down fairly hard on the side of artists’ free speech rights here, in part because of a sense that the market provides a certain level of protection. Stockett’s book is very popular, but it’s always going to be haunted by the accusation that she stole an older African-American woman’s life story and used it for her own gain. But I also think this is just a smaller part of an ongoing conversation about whether we have private lives at all any more. Ablene Cooper, who is in her 60s and thus less likely to say, broadcast much of her life through a Facebook account, may well have the expectation that her life is private and it’s up to her to broadcast and rebroadcast the details of it. But does a hypothetical younger military veteran with an active and public social media presence?