“This is another test post” based on an old blog (“Technology-law Confluence”) from the old domain “billboushka.com” which will be deprecated (content moved to new location) in March 2019. I am putting it up on this free WordPress site on my WordPress account to archive it, but also today in order to practice using the new Gutenberg editor with imported text.”
Technology-Law Confluence: Legal perils when fiction resembles real life; is self-libel possible?
The case Bindrim v. Mitchell, in California, in 1979, establishes the idea that “real people” who are depicted in a novel (in this case, “Touching“, by Gwen Davis) purporting to be “fiction” can bring legal action (such as libel or invasion of privacy) if a reasonable person would know that the character in the novel really is supposed to “be” that person. A UMKC law school link is here.
Time Magazine has an old article from Mar. 17, 1980 “Writers’ Rights and Wrongs: A publishing house throws the book at one of its authors,” link here. This refers to the fact that typically authors have to indemnify publishers against loss, and today Internet self-publishers have to indemnify ISPs (as part of “terms of service”), even though, in practice, such contract provisions have generally been only very rarely enforced for obvious business reasons. (ISP’s have pursued people in spam-related cases.)
It is not necessarily true that this principle would hold in other states in which it has not been litigated.
There is another case in Vermont, Garrido v. Krasnansky, this a divorce proceeding, in which a judge has ordered on party to stop talking about a case online. The case is interesting because the online talk was a blog that purported to be “fiction.” I did not find a court opinion on line, but here is a blog entry from Info Law on the case, here.
Another problem known to have occurred but not litigated (in Virginia) is where an individual used a character based on himself in a fictitious setting on-line in an unfavorable way to make a “political point,” and a principal at a public school where the person worked tried to have the person removed. Eventually the person left for other reasons. It is not clear as a matter of law whether the “Bindrim” principle would apply to a likeness of the self, especially in a state other than California or Vermont.
It’s also interesting to wonder when rulings can be used from other states to make arguments to establish the same precedent in a new state. “Full Faith and Credit” applies to contracts (usually marriage, until now), but not for other legal doctrines.
It’s possible that an objection to “real life resembling” fiction may become stronger if some of the content is actually based on factual events, even if names (and perhaps places or times) are changed.
The “fact or fiction” issue also obviously ties into the new controversies about “online reputation defense.”
Originally posted Wednesday, March 26, 2008.