By Jade Danelian
Your ex is evil. Terrible. Wicked. There truly is no better person to base the antagonist of your novel on; everything about them screams merciless, power-hungry villain, and so, as you write, you picture the color of your ex’s hair, the shape of their eyes, and even that one sinful mole above their belly button. And when the hero of your story uncovers the antagonist’s cheating addiction, you are thrilled. Readers are going to despise this character just as much as you.
That is, till you open your mail and read a court-issued document with your name on it. Your ex is suing you, and suddenly, you are the villain of a real-life narrative. But, luckily, all of this was one bad dream, because you read this article before your fictional inspiration had the chance of becoming a real legal problem.
But at what point does a fictional character become too real? What laws are actually set up to protect your ideas and imagination, along with the people who inspired them? Where is the line between creative freedom and defamation? This article will break down two court cases that every writer accidentally basing their characters on their exes should know, so by the end, you can keep your fiction away from lawsuit territory.
Costanza v. Seinfeld (1999)
Everyone and their grandmother knows Seinfeld, and even if you haven’t seen the nostalgic American sitcom, you’ve likely heard the name Jerry Seinfeld. Larry David and Jerry Seinfeld came together in 1989 to create the comedic television series, which ran for 9 years. But in 1999, Michael Costanza sued both creators for $100 million, claiming that the fictional character on the show, George Costanza, violated New York’s defamation and privacy laws.
Why did Michael Costanza believe he had a case in the first place? There were numerous similarities between the two Costanzas, aside from their shared name, which Costanza pointed out. To start, the physical likeness. Costanza claimed that the character’s height, weight, and lack of hair were similar to his own. He also believed that George Costanza’s place of origin and his meeting with Jerry Seinfeld (the character) couldn’t have been a coincidence, since Costanza was from Queens and met Seinfeld (the real person) at college, which matched George’s storyline.
But, physical similarities are not enough to sue. Most wouldn’t even think of taking a writer to court if their fictional doppelgänger was written in a good light. That’s why Michael Costanza sued based on defamation. Defamation occurs when someone writes or says a false, harmful statement about another person with the intent to ruin their reputation. George Costanza is a self-absorbed character who can’t keep a date or a job and has ongoing parental conflicts, which the real Costanza argued made him look bad in the public eye. Despite this, Jerry Seinfeld and Larry David won the case. Let’s break down why:
- George Costanza is an exaggerated fictional character. The comedic exaggeration of the character was a form of creative protection. General similarities do not equate to legal identifiability, as a typical viewer would not reasonably believe that George Costanza was a real person.
- The New York law holds that fictional works, including comedy, satire, novels, and television shows, do not count as advertising or trade. Seinfeld is a fictional show not used for commercial exploitation, and Michael would have had to prove that his name or likeness was used for such purposes.
As a result, the judge dismissed the case and, funnily enough, fined Costanza and his lawyer $2,500 for wasting everyone’s time. So, long story short, Michael didn’t win, but he did cause a headache that most writers, like you, want to avoid.
Smith v. Stewart (2008)
Not all lawsuits end in favor of the writer. In 2008, Haywood Smith, the author of The Red Hat Club, and her publisher, St. Martin’s Press, were sued by Vickie Stewart on the basis that the fictional character in Smith’s novel, Susu, was an act of defamation. The court agreed with Stewart, and the writer found herself in not-so-fun legal trouble. But why?
After her first husband’s death, Vickie Stewart remarried a man named Harold Stewart. At the time, Mr. Stewart was engaged to another woman, a fact Mrs. Stewart did not know. Harold ended up divorcing Vickie, stealing the insurance money she received from her first husband’s death, and making it so all of his assets would go to his mistress. Vickie fought the court for the money and later, at 50, became a flight attendant.
Isn’t that a wild story? Haywood Smith thought so, hence why she created the character Susu. After Susu’s first husband’s death, she got an insurance settlement, and when she remarried, her current husband was engaged without her knowledge. He stole Susu’s money and gave it to his mistress. Susu fought for the money and later became a flight attendant. Does any of this sound familiar?
None of this is defamatory on its own. People have messy lives. But the issues weren’t based on the life events; they stemmed from the extra details Smith added to Susu’s characterization. Vickie Stewart argued that Susu was portrayed as an “alcoholic slut who drinks while working as a flight attendant.” This is not a good look for Smith or Stewart, given the many similarities between the characters. Any reader who knew Stewart in real life could reasonably believe Susu was her. The promiscuous life of the fictional character could harm Stewart’s reputation.
But The Red Hat Club is a fictional book. How can fiction make a real person look bad?
While the book is a work of fiction, Hayward set the novel in real-life places and included references to actual people. If someone was gifted the book, unaware it was picked out from the fiction section of a bookstore, it isn’t unreasonable for the reader to think The Red Hat Club was a work of nonfiction.
That was why the court ruled in favor of Stewart—Smith’s fictional novel wasn’t fictional enough.
What Does This Mean For You?
Go ahead and write your messy side characters and villains. Continue to be inspired by the lives of those around you, including your terrible exes. Just make sure you create enough distance from reality that a reader, or a Judge, can’t pick them out in a lineup.
When writing your characters, change their names and hair, shift their backstories, swap the city, morph their personalities into something entirely new. No one should believe your fictional character is a real person.
Let’s suppose you want to model a character after someone in reality. In that case, as long as you avoid adding scandalous behaviors that people might believe reflect the person the character is based on, it is okay.
Fiction is fiction for a reason; people want an escape from the real world. But when your fiction starts looking like the reality that people so desperately want to run away from, the protection bubble pops, and you can get in real legal trouble. Simply be conscious as you write, because when you finally publish that novel you’ve been working on for years, the only mail you want is from fans. You do not wish to receive any subpoenas.
Andrews, P. J., & Adams, J. (n.d.). Smith v. Stewart (2008) | Findlaw. https://caselaw.findlaw.com/court/ga-court-of-appeals/1117229.html
Isaacson, D. (2024, June 19). How to avoid legal trouble when using real people in fiction • career authors. Career Authors. https://careerauthors.com/real-people-in-fiction/
Legal Information Institute. (n.d.). Defamation. Legal Information Institute. https://www.law.cornell.edu/wex/defamation
Mathis, L. (2024, December 19). Post: Avoid a lawsuit if a fictional…. Vertu Publishing. https://vertupublishing.com/avoid-a-lawsuit-if-a-fictional-character-is-based-on-a-real-person/
Tompkins, J. H. (n.d.). COSTANZA v. SEINFELD (1999). https://caselaw.findlaw.com/court/ny-supreme-court/1376959.html
