A well-known author published a successful novel. Its protagonist was a man, depicted as opportunistic, cynical and corrupt, with wicked sexual habits. The detailed description of his life, career, etc. corresponded perfectly to a real person – the famous actor X. However, the essential negative features and actions attributed to the character in the novel did not match X, they were invented by the author. The novelist himself stressed at various occasions that he just wanted to create the perfect, typical figure of a deceitful intellectual. Moreover, on the last page of the novel he wrote: ‘All persons in this book represent types, not portraits.’
Does the actor X have any claim against the author of the book?
The actor X does not have a claim against the author of the book under Austrian law.
To solve the problem of a so-called ‘roman à clef’, Austrian courts and scholars apply a flexible system of arguments around which clusters of cases are established which have something in common. This flexible system is governed by the rule ‘the higher the artistic value, the broader the artist's freedom of expression’.
In the first cluster of cases tortious conduct is present, which is only garnished with some artistic behaviour. Here, the author is using literature as a ‘weapon’. Since the minimum requirements of art are not met, the author cannot rely on the right of freedom of art.