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I'm a fiction writer. (You all love these questions.) My publications ALWAYS begin with the general disclaimer "This is a work of fiction ..."

However, I've been doing more realistic dramas, and I'll give an example of something I see myself doing (not specifically, but it's much easier to give an example).

In a 1930s-era gangster drama, two Chicago mobsters are talking about the end of Prohibition and its effect on their lifestyle. One mentions, "Now that they took the cocaine out of Coca-Cola, I bet there's a whole country full of addicts just waiting to get their hands on it."

Is this a form of defamation? Not necessarily because it's true (that Coca-Cola put cocaine in its product), but because I made an intuitive leap in a work of fiction suggesting the boom in cocaine usage in the 30s and 40s in America was at least partially due to the exposure and subsequent withdrawal of the drug by the company the decade before. Again, this is just an example of something I notice I tend to do.

So if this is a form of defamation, can you point me to an example of something similar so that I can learn what not to do? It's true that in-house publishers' attorneys make decisions on these types of things, but if I write a fiction story about the pre-1960s cocaine trade in America, and I can't use my example conversation, I may have just wasted months of work product in developing a story based upon it.

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Yes, quite a number of times, for example, Daniel FETLER v. HOUGHTON MIFFLIN COMPANY 1966.

Rodney Smolla, a leading scholar on defamation, said:

When an author wants to draw from a real person as the basis for a fictional character, there are two relatively "safe" courses of action from a legal perspective: First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character's conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character's reputation, but make substantial efforts to disguise the character . . . to avoid identification. When an author takes a middle ground, however, neither adhering perfectly to the person's attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

Quoted from http://www.rightsofwriters.com/2010/12/could-i-be-liable-for-libel-in-fiction.html

What you are doing is definitely defamation; an untrue statement that may damage a brand or person. Coca-cola was effectively cocaine free after 1904, therefore linking it to a boom in cocaine consumption in the 1930s (if that actually occurred) is ridiculously unlikely, especially since, in 1904 Coca-cola was, at best, a regional not a national brand.

The Coca-cola company may not care as it is about events eight decades ago but that is not something I would count on. The bigger the brand, the more defensive its owner tends to be and they don't come any bigger than Coca-cola. They have a strong track record for pursuing defamation cases.

  • I appreciate this answer, but it seems like the "spirit" of the decision is based on a modern negative campaign against the company. My example is more historical and the damaging effects secondary but progressive as time goes on in a company still in business. – Stu W Jun 5 '16 at 10:46
  • If you are seeking specific advice about your specific circumstances, hire a lawyer and pay for it. Specific legal advice is off-topic for this site. – Dale M Jun 5 '16 at 20:47
  • The case you presented is a good example, but it didn't answer my question, so I edited it and offered a bounty. Sorry if I caused offense. – Stu W Jun 5 '16 at 22:26
  • I'm struggling to understand how @DaleM's answer is not acceptable. The article he linked to provides an example of a case where the author changed the plaintiff's name but defamation was still found. – Patrick Conheady Jun 6 '16 at 12:44

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