It might seem counterintuitive that a fictional work can defame a real person. But where a work takes a real person and puts him in an untrue and unflattering situation, that person may be able to sue for defamation – provided that certain burdens are met.

For example, a New York lawyer was allowed to sue the creators of Law and Order for defamation based on a fictional character that resembled him.  The character had the same first name as the plaintiff, was an Indian-American lawyer in New York like the plaintiff, and was involved in bribing a Brooklyn judge, while the plaintiff had been investigated but never charged in a similar scandal.

A recent New York appellate decision, however, underscores the difficulty in bringing such a claim. In Cayuga Nation v. Showtime Networks, Inc., the Cayuga tribe brought a defamation claim based on an episode of Billions that showed the tribe engaged in bribery, blackmail, and an illegal casino business. One character in particular was a Cayuga tribe member, like the individual plaintiff, had the same last name as the plaintiff, and same job as the plaintiff. But the court found the show’s fictional character was not “so closely akin” to the plaintiff that a viewer “would have no difficulty linking the two.”

Creators can take comfort in the fact that libel-in-fiction claims are rare and hard to establish. In addition to proving that the representations about him are false, a libel-in-fiction plaintiff also has to prove that he or she can be easily identified as the fictional person. In other words, that the character is substantially similar to the real person. This demanding standard essentially requires that the fictional character could only be the plaintiff, a hurdle that not many plaintiffs can clear.