Brief Fact Summary.
Defendants published a book about the nude-therapy technique with a psychiatrist as the principal character. Plaintiff was a psychologist who ran nude-therapy sessions attended by the author. Plaintiff brought suit against defendants, claiming the depiction in the book defamed him.
Synopsis of Rule of Law.
A depiction of a real person in a book may libelous if a reasonable person, reading the book, would understand that the fictional character depicted therein was, in actual fact, the plaintiff.
Where the statements are unambiguously fact or opinion, Gregory applies, and the court determines as a matter of law whether the statements are fact or opinion.View Full Point of Law
Paul Bindrim (plaintiff), was a licensed psychologist who ran a nude-therapy program. In this program, patients removed their clothes in an effort to “shed their psychological inhibitions.” Gwen Davis Mitchell (co-defendant), was a novelist who registered for the program. To register, Mitchell signed a contract that prohibited her from writing or disclosing what transpired in the nude-therapy sessions. However, Mitchell contracted the publisher Doubleday (co-defendant) to publish a novel based on the nude-therapy technique. The novel was published and its principal character, Dr. Simon Herford, used the nude-therapy technique. Bindrim brought suit, claiming that he was defamed by the depiction in the book.
Was there sufficient evidence to show that plaintiff could be identified as the main character in the novel?
Yes. A reasonable person, reading Mitchell and Doubleday’s book, would understand that the principal character depicted therein was, in actual fact, the Bindrim. The judgment, as modified on the motion for a new trial, is further modified as to damages. The judgment of the trial court is otherwise affirmed.
The character in the novel is conspicuously different from plaintiff in name, physical appearance, age, personality, and profession. Only three witness apart from plaintiff himself “recognized” plaintiff as the fictitious character. I would reverse the judgment.
If one person “reasonably” understood the defamatory character in the novel, then it describes what readers generally would “reasonably” understand. The use of the word “reasonably” in the jury instruction dissipates the dissent’s argument.
The only differences between Herford and Bindrim were their physical appearances and that Herford was a psychiatrist rather than psychologist. Otherwise the two figures were very similar, and it is possible that people who knew Bindrim could identify him with the fictional character. The similarities between the two are clear, and there is a close parallel between the narrative in the book and actual real life events. Mitchell and Doubleday’s contention that the book was explicitly labeled as a “novel” and therefore bars Bindrim’s claim is unpersuasive. Here, the test for libel is whether a reasonable person, reading the book, would understand that Herford was, in actual fact, Bindrim. A reasonable person could find as such.