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Novel, Drawn From Life, Not Libelous, Judge Rules

April 11, 1991

NEW YORK (AP) _ People who think they are depicted in works of fiction should be less eager to sue for libel under a ruling that expands the rights of authors and their publishers, defense lawyers in the case said Thursday.

In dismissing a $4.75 million claim against writer Terry McMillan and her publishers, a judge found there are striking similarities between a main character in her 1989 novel, ″Disappearing Acts,″ and her former boyfriend. But the judge ruled that Ms. McMillan did not libel or defame the man.

In a lawsuit filed in trial-level state Supreme Court, Leonard Welch maintained - and Ms. McMillan did not dispute - that one of two main characters in the novel was largely modeled on him. They had the same interests, ate the same food and did the same work.

But the character, Franklin Swift, also was an abusive drunk who was sometimes lazy, hostile, racist, homophobic and emotionally unbalanced, while ″Leonard Welch is none of these things,″ Justice Jules L. Spodek wrote in his ruling.

Welch maintained that he was libeled by the unflattering parts of the book.

Ms. McMillan, who teaches writing at the University of Arizona, said in a telephone interview, ″Undoubtedly I am quite relieved, not just for myself, but for other writers.″

″I created a fictional character for which he was partially the inspiration,″ she said. ″But, it is fiction. You make it up.″

″This was a love story, written with love and he knows it,″ she said.

Welch and Ms. McMillan used to lived together in the borough of Brooklyn, where Welch still lives.

In the ruling last week, the judge said people who knew Welch ″had no difficulty differentiating him from Franklin Swift; the defamatory material was clearly not believed.″

Spodek said it was accepted fact that novelists create fiction from their own lives and a reader must be convinced that a character in a book ″is not fiction at all.″

Lawyers for Ms. McMillan’s publisher, Viking Penguin, said they believed the ruling would establish an important precedent and extend the freedom of artists.

″It’s the broadest extension of any libel-fiction case in the U.S.,″ said Martin Garbus, a lawyer for Viking. ″It’s a tremendous victory in a case that could have gone the other way.″

Welch’s lawyer, Peter Gordon, said he had not studied Spodek’s ruling and did not know if he would appeal.

Russell Smith, another Viking attorney, said Spodek’s ruling would carry special weight because other courts around the country look to New York for precedents in publishing cases.

″I would hope lawyers who would sue publishers to make a quick buck would now realize it’s a waste of time,″ he said.

Welch, in his lawsuit, said the realistic way his three-year relationship with the author was depicted and the fact that she dedicated the novel to their son caused him emotional distress.

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