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I had a dream that an acquaintance of mine was engaged in the African slave trade in the United States (that is right now, in the early 21st century). Suppose I turned the dream into a piece of fiction such as a movie or novel, would that be libel because of the time disconnect?

My understanding is that libel has the following elements: 1) The statement was false while a reasonable person would believe it to be true, to the detriment of the target 2) the plaintiff was identifiable 3) the statement was derogatory.

There was a case about the libel charges of a beauty queen being dismissed because no reasonable person would believe the allegations: that the beauty queen performed oral sex on men and thus made them "levitate" in mid-air.

A couple more items about my dream/movie. 1) It showed a contemporary "slave market" in Washington D.C. next to the courthouse, side by side with cars, skyscrapers, and the internet, meaning that the person was not conducting a slave trade in our parallel universe that was illegal (immoral, perhaps) and 2) People who knew him would testify, yes, this is the kind of guy who would sell his mother, brother, child, "down the river."

Would either or both of the above constitute a defense against libel?

  • Are you primarily concerned about libel or are you also concerned about being sued for appropriation of name and likeness or violation of the right of publicity? – Viktor Nov 25 '15 at 17:32
  • @Viktor: Just libel. I have no desire to "publicize" this person in his real form. Only as a "type." – Libra Nov 25 '15 at 17:57
  • Could you please define what you mean by type? – Viktor Nov 25 '15 at 17:58
  • @Viktor. A nasty person. I have no interest in a "physical" or "likeness" identification. – Libra Nov 25 '15 at 17:59
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    Then what makes you concerned about liberal at all? You can't put a specific person in disrepute by not talking about them at all? – Viktor Nov 25 '15 at 18:22
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Make all the characters fictional.

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    I believe you would also need to craft the characters such that a reasonable person would not infer a real person's identity and believe the imputations in order for this to be a way to avoid libel. – jimsug Nov 26 '15 at 0:24
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    this is the answer. It's FICTION, my friend. Make small changes. Alter the character slightly. Identifying details...change gender. Change age. Change physique. It's FICTION!!!!! – dwoz Nov 26 '15 at 4:03
  • @dwoz given that the story involves open 21st-century slave trade, there no need to change any details of any character to make it obvious that it is fiction. – phoog Nov 26 '15 at 4:56
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It would probably not be defamation unless it was obvious that it was somehow a very direct metaphor for a real situation. You must, at a minimum, be implying something about reality for something to be defamatory. This would be quite a stretch.

You might, however, be liable for commercial appropriation of someone's identity and owe them compensation in much the same way that you have to pay a model damages if you use model's picture for a commercial purpose. The appropriation need not be limited to the physical aspects of someone's appearance and might include also, for example, distinctive use of language or aspects of personal history and life.

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Based on what I understand today, there are three issues for a defamatory statement. 1) It was a false statement reasonably believed to be true. 2) The plaintiff is not clearly identifiable. 3) Whether or not it is defamatory. The defendant only has to prevail on one of these defenses to win.

Number 3 is clearly "out." The statement is defamatory. Number 2 is the usual line of defense. Disguise the plaintiff. But if it fails, fall back on number 1.

Of course, number 1 is a false statement. But no one in the 21st century U.S. would reasonably believe that someone was legally and openly engaged in a slave trade that was legal and open only up to the Civil War. This is a strong "signal of fiction." That's the ground on which the defendants in the Miss Wyoming case ultimately prevailed even after losing on the other two counts.

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