Brief Fact Summary. The Defendants were Gwen Mitchell (Ms. Mitchell) and Doubleday Publishing (Defendants). Ms. Mitchell wrote a novel allegedly based on the Plaintiff, Dr. Paul Bindrim’s (Plaintiff), psychological techniques, including a nude marathon. Plaintiff brought an action for libel. Defendants claimed the novel was a work of fiction and the character could not reasonably be identified as Plaintiff.
Synopsis of Rule of Law. The issue of whether or not a character is a representation of the Plaintiff in question is if a reader with knowledge of the surrounding circumstances could reasonably understand that the words referred to the plaintiff.
Held. Yes. Judgment affirmed.
* The only real differences between Plaintiff and the novel characterization were physical appearance and the fact that the main character was a psychiatrist rather than a psychologist. There is overwhelming evidence that the main character could be identified as the Plaintiff.
* Defendants contend that the labeling of the book as a novel bars any claim that the characters are representations of actual, nonfictional persons. However, the test is whether a reasonable person reading the book would understand that a fictional character therein is a description of the Plaintiff.
* Defendants also question if there is publication for libel when the communication is only to one person or a small group of people. This is based on the limited recognition of Plaintiff by readers who know him. However, it is clear that publication is sufficient for defamation even when the publication is to only one person other than the person defamed.
Dissent. Presiding Judge Files wrote that the fictional therapist in Ms. Mitchell’s book is conspicuously different from the Plaintiff. The only similarity is the nude encounter therapy. Only three witnesses testified they recognized Plaintiff and the only characteristic they recognized was the therapy practiced.
Concurrence. The fictional setting does not insure immunity when a reasonable person would find the fictional character to be a portrayal of the Plaintiff.
Discussion. The reference to the plaintiff, known as the colloquium, need not address the plaintiff by name if it is reasonably understood as referring to him.