What is the 'of and concerning' requirement in defamation law?
The "of and concerning" requirement means that a defamation plaintiff (the person suing) must show that the allegedly defamatory comments are being made about him or her. In other words, the plaintiff must show that the comments in question are about or "of and concerning" the plaintiff.
How can a work of fiction possibly defame someone?
Defamation can result from a work of fiction. If a character in a work of fiction so closely resembles an actual person that reasonable readers believe that it refers to the plaintiff, sometimes the plaintiff can recover for defamation (assuming the other elements of a defamation claim are met). In 2003, a New York trial court explained in Carter-Clark v. Random House, Inc.: "For a fictional character to constitute actionable defamation, the description of the fictional character must be so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two. Superficial similarities are insufficient."
Does a disclaimer in fictional works provide absolute protection from a libel lawsuit?
A disclaimer can assist a publisher and/or an author in defending against a libel suit but it does not necessarily provide absolute protection. Courts have stated that the test is not whether a publication is labeled as fiction but whether it can be interpreted as stating actual false statements of fact about someone. That said, it is a good idea to include a disclaimer. It can be a relevant factor that a court may consider in its analysis.
Are such libel-in-fiction lawsuits filed against the author or the publisher or both?
Generally, the libel-in-fiction lawsuits have been filed against both the author and the publisher. One goal of most tort lawsuits is to sue the defendant (an individual or company) with the deepest pockets. Generally, publishers are wealthier than individuals so it makes sense for both to be sued.