Fact Versus Truth in Writing Fiction

[image error]




Today's post is from regular guest Susan
Cushman. Visit her
blog!





--



If you've been following the lawsuit filed by Ablene Cooper against Kathryn
Stockett, author of The New York Times bestseller The Help, I'm sure you
saw this article in the February 17 issue of the Times: "A
Maid Sees Herself in a Novel, and Objects."




Ablene Cooper is a 60-year-old black woman who works for Stockett's brother and his
wife, and the Times article says they encouraged her to sue Stockett for "an unpermitted
appropriation of her name and image, which she finds emotionally distressing."




The name Stockett used for the character in the book is "Aibileen." There are similarities
in the lives of the fictional character and the real person of Ablene Cooper. The
Times article also says, "The lawsuit, filed in Hinds County Circuit Court, contends
that Kathryn Stockett was 'asked not to use the name and likeness of Ablene' before
the book was published, though it does not specify who asked."




Two years before this Times piece, I
met Stockett at a reading/signing at Lemuria Books in Jackson (Miss.), where she
read before her hometown crowd for the first time. Her work fascinated me; I came
of age in Jackson, and grew up in the neighborhoods fictionalized in The Help.
Stockett has received lots of criticism for the light in which she portrayed blacks
during this era, even for her use of dialect, which I thought was point on.



I read the New York Times article with interest and wanted to write a post about it,
but I felt inadequate to address the legal issues. So, I asked John D. Mason, who
is a literary agent and a literary/art and entertainment attorney with The
Intellectual Property Group, PLLC, in Washington, D.C. to answer a few questions
about the situation.





Was this a dangerous move on Stockett's part to use such
a similar name and assimilations of image?

Generally, it was not wise for an author to have a character name so similar
to that of a living person and to also have facts so closely match real life in fiction
(I am using public reports on the lawsuit for my facts).




These types of cases are expensive and fact intensive, and frequently it is difficult
to establish damages. I would be surprised if this went to trial and Ms. Cooper was
ultimately successful in achieving a significant recovery, although I have been surprised
many times before.




As a general rule, fiction authors control their work and so doing something so close
to reality just does not make sense. If Ms. Stockett had thought about it and changed
the name and facts only a little bit, this wouldn't be an issue at all. Better safe
than sorry.

The Times article says, "Though the character of Aibileen is
portrayed in a sympathetic, even saintly light, she endures the racial insults of
the time, something that Ms. Cooper said she found 'embarrassing.'" I read the book,
and having grown up in "North" Jackson, Mississippi, during the 50s and 60s, I found
the descriptions of the times to be very accurate, and Stockett's voice to be non-judgmental.
How legitimate are Ms. Cooper's claims that the book harmed her? What do you think
the chances of the plaintiff winning this suit are? And, should Ms. Stockett have
done more to protect herself? 

I don't think it is likely that this case will go to trial or that Ms.
Cooper will receive a significant award of damages if it does and she is successful.




This is a name and likeness/right of publicity case and those tort claims arise generally
from an individual's right of privacy. This lawsuit is most likely what is known as
an action for appropriation of Ms. Cooper's name and likeness, which is an action
a non-celebrity brings for unauthorized use of their name and likeness, generally
where there is no commercial use involved.




A right of publicity case generally is one where a person is a celebrity or uses their
persona in a commercial sense and thus they have a property interest in controlling
exploitation of their persona or name and likeness. The goal of the state laws which
create the action for appropriation of name and likeness cause of action are to prevent
emotional/reputational injury and protect people from invasions of their privacy (it
does not appear that this is a false light case).

I believe that Ms. Stockett's attorneys will argue that she
has first amendment defenses, that any similarities are incidental and de minimis
in their impact, if any, on Ms. Cooper, and that her artistic expression is only coincidentally
and not intentionally similar to Ms. Cooper's name and/or likeness. (It should be
noted that a likeness is generally understood to literally be the face of an individual,
which does not appear to be an issue here).




If Ms. Cooper is successful in convincing a jury or judge that the use made by Ms.
Stockett is a misappropriation of her name and likeness and violation of her right
of publicity, she would be entitled to her actual damages, which may be difficult
to quantify and prove by evidence but could arguably be an apportioned amount of profits
attributable to the commercial exploitation of her name and likeness or right of publicity.




If there is a showing of bad faith on the part of Ms. Stockett—the reason the complaint
notes that Ms. Stockett was asked not to use or appropriate Ms. Cooper's persona—then
Ms. Cooper may be entitled to a trebling or other enhancement of her actual damages.




Similarly, in the event of such a bad faith finding, Ms. Cooper may also be entitled
to attorney's fees and costs under the Mississippi statute.




All of the foregoing gets very complicated and the bottom line is that it will be
an expensive effort and trial with, in my opinion, a potentially small likelihood
of success and little likelihood of recoverable damages. I think it is most likely
that there will be a settlement based on the cost of defense. Essentially, I think
it is likely that Ms. Stockett will buy peace based on how much it will cost to defend
the entire case through trial.

We've been discussing the risks involved in portraying real people in a negative light
in fiction-writing. Are authors "safe" from lawsuits if they change the names of the
real-life people they portray in nonfiction books, like memoirs?

Not necessarily. If the people they are writing about are sufficiently
identifiable, even after changing the name the author may be exposing his or herself
to claims for libel, false light, public disclosure of private facts and related cases.
Obviously, the truth is usually a good defense to some of these types of claims, but
there can even be situations where disclosing true facts can be actionable in certain
jurisdictions. If you are unsure, best to consult a literary attorney to conduct due
diligence on the manuscript. This
is a great discussion of the issue.

--



John D. Mason lectures 10–20 times a year on legal issues for artists and writers,
and will be among the faculty at the 2011
Memphis Creative Nonfiction Workshop in September, along with his client, Bob
Cowser, Jr. They'll be doing a presentation on author-agent relations and other
legal issues that writers need to know about. (Registration is open!)

[image error]