It is not true, as Truman Capote declared, that “all literature is gossip,” but his dictum just cost French novelist Grégoire Delacourt $6,800.
Delacourt is the author of La première chose qu’on regarde (The First Thing We Look At), in which a young man mistakes a French model for American actress Scarlett Johansson and adventures ensue before her true identity is revealed. In May the real Scarlett Johansson sued Delacourt, and this month a French judge ruled in her favor, awarding €2,500 ($3,400) in damages and an equal sum in court costs. Johansson had originally demanded €50,000 (about $68,000). Additionally, four lines about the Johansson-resembling character’s “affairs” will be cut from future editions of the novel.
But in France — the land of Balzac, Hugo, and Proust — authors of fiction are less artists than entrepreneurs, at least under the law. According to Johansson’s filing, Delacourt’s novel constituted a “violation and fraudulent and illegal exploitation of her name, her reputation and her image” for commercial purposes.
On this side of the pond, American free-speech rights protect authors whose use of names has “literary merit.” Judge Robert D. Sack of the Second U.S. Circuit Court of Appeals has written extensively on the subject of defamation in American courts:
Where the defendant invents defamatory dialogue or other defamatory details in what purports to be nonfiction, uses actual people as fictional characters, or bases fictional characters on living persons but fails sufficiently to disguise the characters, so that the fictional characters are understood to be “of and concerning” their living models, liability for libel may result.
The failure of author Haywood Smith sufficiently to disguise a flight-attendant acquaintance in her best-selling 2003 novel The Red Hat Club resulted in a $100,000 verdict in favor of the plaintiff. The judge in that case found more than two dozen indisputable similarities between the character and her real-life inspiration.
But such cases are rare. High-profile suits brought against the publisher of the best-selling novel Primary Colors (1996), and against the producers of the hit films The Sandlot (1993) and Hardball (2001), all failed. In 2010 a libel-in-fiction suit against Law & Order creator Dick Wolf became the first such suit to survive the summary-judgment stage in New York in a quarter-century. Had Delacourt published in Johansson’s home country, no doubt her suit would have been promptly dismissed.
Moreover, modern pop culture regularly transforms real-life figures into characters. The 2006 Academy Award–winning film The Queen, starring Helen Mirren, explored the aftermath of the death of Princess Diana, all from the imagined views of Queen Elizabeth II and Tony Blair. Multiple Comedy Central television shows used George W. Bush as a main character — Lil’ Bush featured most of the Bush cabinet, including vice president Dick Cheney in a Darth Vader mask — and the anonymously written O: A Presidential Novel (2011) chronicles the rise of never-named presidential candidate “O.” Dante wrote Florentine acquaintances into his Divine Comedy — and placed a number of them in Hell. Artists (of all sorts) have long engaged their milieu by bringing it directly into their work.
America’s high standard for defamation cases against works of fiction recognizes this tradition and indicates its different way of thinking about the products of the imagination. The invocation of “literary merit” acknowledges that art, broadly understood, has a significance that is not merely commercial. Novels, films, television shows, and the like are, as objects for consumption, distinct from garden rakes, office supplies, and bathroom decor. The value of works of art resists monetization — hence “priceless” paintings. How could one assess the value of stories? The force of King Lear is not circumscribed by its folio. The inexplicable but undeniable power of narrative art shapes and reshapes cultures, customs, and mores. Joan Didion put it bluntly: “We tell ourselves stories in order to live.”
This is not to say that The First Thing We Look At is a work of high art, or that art cannot be defamatory. But narrowed protections for storytellers (of any sort) are likely to curtail the imagination, to reduce stories to their Amazon price, and to ensure that, over time, the content of stories becomes more susceptible to litigation. A robust and vigorous culture calls for broad protections of those whose work is more valuable than its price.
— Ian Tuttle is a William F. Buckley Jr. Fellow at the National Review Institute.