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Art Imitates Life Too Closely, Says Woman Suing Over 'Red Hat Club' Book
Judges clear defamation suit against author who used characteristics of her acquaintance in best-selling book
Fulton County Daily Report
April 01, 2008
In a rare defamation case over a novel, the Georgia Court of Appeals has cleared the way for a suit by an Atlanta woman who claims an alcoholic, promiscuous character in the book "The Red Hat Club" too closely resembles her.
Vickie Stewart has sued local author Haywood Smith and St. Martin's Press over Smith's 2003 book about five red hat-wearing, middle-aged Buckhead ladies plotting revenge against the philandering husband of one of the group's members. The book hit No. 15 on the New York Times best-seller list.
The "Red Hat Club" in the book resembles the real-life Red Hat Society, a group of women who wear red hats and purple clothes to embrace, according to the organization's Web site, "fun after 50." The site claims the society has 40,000 chapters around the world.
A disclaimer in the book says it is a work of fiction that has not been endorsed by the Red Hat Society. Both Smith and the society claim to have been inspired by the poem "Warning," by Jenny Joseph. Joseph's poem proclaims "When I am an old woman I shall wear purple/With a red hat which doesn't go, and doesn't suit me."
Stewart, the plaintiff, says that unlike the "SuSu" character in the book, she is not an atheist, a "right-wing reactionary" or a promiscuous alcoholic. But she says she bears too striking a resemblance to the character in other ways.
According the March 28 decision of the appeals court, the record in the case -- viewed in the light most favorable to Stewart -- shows that both Stewart and the SuSu character lost their first husbands in car accidents and had difficulty collecting settlements due to the shenanigans of a subsequent romantic partner. Both later became flight attendants, as SuSu's friends in the book call her the "world's oldest stewardess."
The book portrays SuSu as an alcoholic who drank while working flights and frequently engaged in casual sex with airplane passengers and others. For SuSu, Smith writes, talk of a "layover" was "a double entendre of galactic proportions."
According to the opinion, the record shows that Stewart and Smith have known each other for more than 50 years, since Stewart as a child moved down the street from Smith (then Anne Haywood Pritchett) in the Buckhead neighborhood of Atlanta. Like the SuSu character, Stewart graduated from Northside High School.
Judge John J. Ellington, joined by Presiding Judge Gary B. Andrews and Judge A. Harris Adams, found that there is evidence that Stewart and her friends immediately concluded after reading the book that SuSu must be based on Stewart. As detailed in a footnote to the opinion, one friend said that SuSu was "Vickie to a T" and "couldn't have been anybody else."
Thomas M. Clyde of Dow Lohnes' Atlanta office, who represents the publishers and the author, said "the witnesses who've testified in the case all testified that they understood the work was fiction."
In August 2004, Stewart brought suit in Hall County State Court against Smith, St. Martin's Press and secondary publishers. Stewart asserted claims for defamation, invasion of privacy and infliction of emotional distress.
Hall County Judge Charles S. Wynne denied summary judgment motions filed by both sides, saying the case should go to a jury.
On appeal, Smith didn't dispute that aspects of Stewart's past provided inspiration for the SuSu character -- but Smith contended Stewart was not the only inspiration.
Smith and the publishers got help from the Association of American Publishers, which offered an amicus brief on their behalf. The brief, filed by Jonathan Bloom of Weil, Gotshal & Manges in New York and Joseph M. Beck and Jill Warner of Atlanta's Kilpatrick Stockton, said it was "deeply concerned" about the prospect of Wynne's order being affirmed. They argued that "[t]he history of the novel would be dramatically different had authors been compelled to avoid using real people as points of departure for their creations."
The Court of Appeals panel ruled that the secondary publishers -- who published audiotape, Internet and large-type versions of the book -- were entitled to be let out of the case due to a lack of evidence of fault on their part. The court also said Wynne must enter judgment for Smith and St. Martin's on Stewart's false light invasion of privacy and infliction of emotional distress claims.
But Ellington wrote that jury issues remained on Stewart's public disclosure of embarrassing private facts and defamation claims. Ellington noted that while the defendants cited differences between SuSu and Stewart -- such as their names, the names of their friends and SuSu's characteristics of having been a high school cheerleader, sorority member and member of a Red Hat Club -- Wynne found at least 26 specific examples of similarities between the two.
"Throughout the book, Smith portrays SuSu as a middle-aged flight attendant who is an alcoholic and drinks on the job, and who regularly engages is lewd public behavior, one night stands, secret affairs with married men, and brief sexual relationships with younger men," wrote Ellington. "This negative depiction is commingled with specific references to SuSu's background, references which Smith admits were drawn directly from Stewart's life. Considering the allegedly defamatory assertions in context with the rest of the book, we cannot say that the assertions are so implausible, fanciful or ridiculous that no one could reasonably interpret them as stating actual facts."
"Further," Ellington continued, "to the extent that the defendants argue that merely because a book is labeled as 'fiction' or a 'novel' it is automatically protected from being considered defamatory, such argument lacks merit. Simply because a book is labeled 'fiction' does not mean that it may not be defamatory."
Ellington also points to Smith's efforts to ensure accuracy of local details as further support for his conclusion that the book could be actionable.
"Further, when an author uses the real names of people and places in order to give the book a sense of historical accuracy," wrote Ellington, "simply labeling the book 'a novel' or 'a work of fiction' will not prevent its readers from reasonably believing the book is something other than a purely fictional work."
Atlanta lawyer Jeffrey D. Horst of Krevolin & Horst, who represents Stewart, said the appeals panel rejected the notion that a purported work of fiction can't create liability for defamation. He said there was little case law in Georgia or elsewhere on that point, although Ellington had some case law with which to work.
"I don't want to try to put words in Judge Ellington's mouth," said Horst, "but I think a fair reading of the opinion is a fictional label is not going to automatically immunize a publisher or an author from a defamation claim."
Clyde said the defendants' position was never that the book was protected simply because it was labeled fiction. He said the book's fiction disclaimers merely help his clients' arguments.
"What we are arguing is that the book is fiction in every meaningful sense of the word," said Clyde. "And what I mean by that is the book in its language and in the outlandish plot elements and in the whole narrative presentation is so clearly fictional no reader could have reasonably read it and thought it was intended to say actual things about actual people."
Clyde agreed with Horst that there was little Georgia case law on whether written works of fiction can be defamatory, but he cited another Georgia case, Bollea v. World Championship Wrestling, 271 Ga.App. 555 (2005), that backed his position.
"In cases around the country, brought based on novels similar to this," he added, "appellate courts have time and time again granted summary judgment to the defendants."
Clyde said his clients expect to appeal further and likely will either ask the Court of Appeals to reconsider or will petition the state Supreme Court hear the case.
The case is Smith v. Stewart, No. A07A1751.
