Defamation, or an Unfortunate Coincidence?

WHITE PLAINS, N.Y. (CN) – A Queens insurance agent claims Random House defamed him in a memoir about a gambler with a criminal record. Douglas Heimowitz claims that he is “the only individual in the United States bearing the name Douglas Heimowitz,” but that the hero of “Lay the Favorite: A Memoir of Gambling” shares his name and some of his characteristics – and has other, unsavory characteristics, which the real Heimowitz does not.

     Heimowitz claims his “exemplary” reputation as an insurance agent is tarnished by “Lay the Favorite: A Memoir of Gambling,” published in June by Spiegel & Grau, a division of Random House. Its author, Beth Raymer, is not named as a defendant in Heimowitz’s federal complaint.
     The protagonist of “Lay the Favorite” is Douglas Heimowitz, nicknamed Dink. The plaintiff says he never consented to the use of his name.
     “Plaintiff is the only individual in the United States bearing the name Douglas Heimowitz,” according to the complaint.
     Heimowitz adds that much of the character’s description matched him.
     Both Heimowitz and Dink are Jewish, both lived in Queens, both went to Queens College and both are 6-foot-4.
     But Heimowitz says Dink has several unsavory characteristics that he does not share, including a penchant for illegal gambling and a criminal record.
     “The similarities between defendant’s protagonist Douglas Heimowitz and the real Mr. Heimowitz create a strong public confusion that the character Douglas Heimowitz and Mr. Heimowitz are one and the same, and that Mr. Heimowitz is a criminal,” according to the complaint.
     Heimowitz says the book has attracted a lot of publicity, with a film adaptation in the works, and he fears that his license might be suspended or revoked as a result.
     “Mr. Heimowitz is very concerned not only about his present and future employment, but about his college-age children’s future employment prospects as well,” the complaint states.
     “Mr. Heimowitz is worried that there is nothing he can do to prevent the tarnishing of his reputation or undo any damage defendant’s book, the publicity it has received and the impending movie might cause to his name and persona.”
     Heimowitz wants Random House enjoined from using his name, all copies of the book using his name to be recalled, and damages for defamation and trademark infringement. He is represented by Panagiota Tufariello of Mt. Sinai, N.Y.
     (A search of Douglas Heimowitz on whitepages.com this morning turned up three Douglas Heimowitzes, one in Jericho, N.Y., one in Little Neck, N.Y., and one in Las Vegas, Nev.
     (Literary history, like science, includes some remarkable stories of simultaneous discovery or creation. For instance, Voltaire’s novel “Candide” and Dr. Johnson’s “Rasselas” were published 6 weeks apart in 1759, in two languages. Due to the state of transportation at the time, the language element, and the integrity of the authors, it is impossible to believe that one of them could have stolen the book from the other. Yet they have identical plots, similar main and accessory characters, identical conclusions, and teach similar lessons and morals. The only real differences are the settings, and that, as is to be expected, Voltaire’s touch is a bit lighter than Dr. Johnson’s.)

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