Fact Versus Truth in Writing Fiction

??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!)

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16 thoughts on “Fact Versus Truth in Writing Fiction

  1. onyx

    Hello Jane,

    Thank you for the informative post. I’d like to share a bit of information for those still not clear on why Ablene Cooper could be offended enough to file a lawsuit (though there’s still some question from the news articles on whether Cooper solely initiated the suit)

    The name and description of the character in the novel is close to the plaintiff’s, on that I believe many are in agreement. However, while some readers believe the character is admirable, that is where other readers differ.

    Aibileen is a familiar character in fiction. The docile, blindly loyal maid who is devoted to the child she cares for. A similar character who comes to mind is Delilah from Fannie Hurst’s "Imitation of Life". It’s ironic there was also controversy in 1933 regarding the depiction of that character. Fannie Hurst even had Zora Neale Hurston championing her book. At one point Langston Hughes was on board. Until Hughes changed his mind and wound up writing a parody of the novel in play form.

    I look at Ablene Cooper’s lawsuit as a way to make publicly known that enough is enough. That having a character with her likeness and a similar name who goes to church, yet still wonders if people think she used "black magic" to wish a venereal disease on another woman is not funny, but offensive.

    In addition, that telling someone "don’t drink coffee or you’ll turn colored" is not funny, it’s offensive.

    That while it’s admirable to instill positive affirmations on an employer’s young child, it’s a coward who’ll ignore her best friend’s children, especially children who witness the violent, physical abuse of their mother on a daily basis.

    But of course, if that abused woman is simply the "sassy" maid stereotype, then the abuse may be easily overlooked.

    And it is the height of offense to compare brown skin to a roach, especially with more than enough images from when segregation was legal that demeaned the black culture.

    Is this a frivolous lawsuit? Not as far as I’m concerned. Aibileen in my opinion, is a Mammy, not a maid.

    True enough, Ablene Cooper may not win.
    And this post is in no way meant to imply that writers should not be free to write what they choose. But at least the lawsuit may open a dialogue on what constitutes offensive stereotype in a minority character, versus paying homage.

  2. Ren Hinote

    Susan, Very thought-provoking article, and most interesting to me at this particular time. As you know, my work-in-progress is creative nonfiction and a true Mississippi story. One of the main reasons I have sigend up for the Memphis Workshop in September is the opportunity to meet and talk with John Mason. Thank you for adding insight to this case. BTW, I lived in Jackson in the 70’s and I find Kathryn Stockett’s character depictions to be right on target. I agree with several of you, however, in that I am puzzled by her use of the Abilene name and character having apparently been asked not to do so.

  3. Jane Friedman

    @Marly – I’m not a lawyer and so can’t speak with confidence on the matter. However, if your work is clearly fan fiction and you’re not attempting to make money from it (you’re not writing it for commercial purposes), I rarely see legal action taken against such works. It’s usually when you attempt to profit from your fan fiction that you open yourself up to lawsuits.

  4. Marly

    Jane: This article worries me a little bit; would you mind answering a quick question, before I get myself into trouble with multi-billionaire Jo Rowling? My character constantly quotes phrases from the Harry Potter movies and books, says spells before she opens doors or when she wants her dishes to wash themselves, (who doesn’t?) uses scenes from the movies to illustrate points she’s making, etc. She has replicas of Harry and Dumbledore’s wands and Hermione’s Time Turner.
    No, she’s not a nut case who stalks people, or has psychotic illusions of being able to do magic. She’s just a fan who finds much intellectual stimulation in the series, and envies the family relationships.
    I’ve been told that this is clearly fan fiction, and I’m clearly not trying to ride Harry’s broomstick to publication, so to speak, but the question is, if Jo Rowling interpreted it that way, would she have a legal case? Would you mind asking your lawyer friend for me? To me, her fascination with Harry Potter is simply a symbolic element to her personality. It helps to explain a lot of her thinking and behavior.

  5. Gabriel Scala

    Just an FYI – in my own research for a post related to this topic (posting on Monday @ AngelSpeak), I found this blog post that might be of some use: http://www.rightsofwriters.com/2010/11/can-i-be-sued-for-telling-truth.html

    The author also has posts about writing about real people who are now deceased. To summarize, he basically says there’s no worries when it comes to the dead – unless what you’re writing about the dead somehow defames or violates the privacy of the living.

    More on this later. Thanks again for a thought-provoking post, Susan.

  6. Carolyn Haines

    Thanks for the thought provoking post. We are all influenced by figures from our pasts, and caution is a good word to keep in mind when putting them in our fiction. What might start out as an homage might not be received in that fashion.

  7. Kory Wells

    I agree with all the posts (Ellie and Darrelyn especially)…as a creative writer, this is concerning. However, on the other side of the coin: Without passing judgement on the actions and decisions of either Ms. Stockett or Ms. Cooper, about which of course we don’t know all the facts, I must say, if I saw a LOT of my life and characteristics depicted in a novel and the author had not somehow obtained my agreement for depicting so much of my life in her book, I can imagine being unhappy with that.

    If, on top of that, the book went on to be hugely successful, I can also imagine being emotionally distressed that someone else was profiting off of what felt like my story. I don’t think it would matter if I was portrayed sympathetically or not.

    Obviously, this gets into messy gray areas VERY quickly.

    I very much enjoyed The Help, and some of my favorite historical fiction includes books like The Mercury Visions of Louis Daguerre by Dominic Smith, which is based on a mix of fiction and real life (but long dead) characters.

  8. Mark Matchwick

    There is also a difficulty here when writing a historical novel, which is based heavily on real people and events. Generally, most historical fiction is set in the distant past, but is it possible for descendants of a historical figure to take legal action if a character is portrayed in a negative light? And is there a distinction between a portrayal that has factual proof and that which is fictionalised (by way of filling in the gaps in factual proof)? I agree with the above posters’ comments that as long as a novel is published as ‘fiction’ and carries the disclaimer, then there should not be a problem.

  9. Susan Cushman

    Porter and Steven: Thanks for commenting. The ab-ex artist I’m basing a character on is dead, but I think she has some living children. What are the chances they would ever see the book? The photographer is definitely still living and very famous. (You’re probably guessing who it is….) Porter:reading my post at 5:45 a.m. on a Saturday morning on your Blackberry? Seriously? (I love it!) I’ll let you know what the attorneys say when I ask their advice on using the similar names….

  10. Steven M Moore

    Hi Jane!
    Very interesting post. And here I thought the "…any resemblance to real people, living or dead…" disclaimer was all that’s necessary in fiction. Fortunately all my main characters are fictional Irish stews based on a sampling of human character traits I’ve observed over the years, but I do make the occasional factual reference to historical personas. However, the above discussion has now made me doubly paranoid.
    r/Steve Moore

  11. Porter Anderson

    Once again, Susan, I appreciate you going to some length to get an issue across well. Call this Twitter fatigue, but I’m tiring of the Can’t You Make It Any Shorter? school. Same people who always want do know, "Can’t you park any closer?" I read your whole post on my BlackBerry at 5:45a this morning, happy to keep scrolling. 🙂

    I’m in agreement with Ellie, Darrelyn, and Gabriel on the Stockett situation, and with your last comment, Susan, about the seemingly slim payoff in getting so close to a persona devoid of any predictable value to the readership: no known case history to resonate in the narrative.

    Relative to your mention of ab-ex personalities, I’m interested in another flip of this coin, that rare currency of more than two sides. If the artists you reference are dead (which may not be the case), does that alter your stance? And what of the classification of a living "public figure?" Is that synonymous with John Mason’s references to "right of publicity" cases and celebrities? Cutting flips, calling heads and tails and Memphis, you say? Hm. Not enough men registered, you say? Hm and hm again.

    Is that Jane Friedman not the host with the most great posts? 🙂

  12. Susan Cushman

    Thanks for the comments, Ellie, Gabriel and Darrelyn. I’m thinking that Stockett made the names similar on purpose, Ellie, but I’m not sure why. In my current novel-in-progress, one of the three main characters is BASED ON a famous female artist from the New York School of abstract expressionism. Another (minor) character is based on a famous female photographer, and again, I chose a name that is simliar to the real person’s. Art lovers might recognize them in my characters, which will make the book more enjoyable for them and more marketable. But I’m going to fictionalize much of her life and include a clause in the front of the book about most of the characters being fictional, etc. (I’ll probably check with a lawyer like John Mason first!) It does seem odd in Stockett’s case, because there wasn’t anything attractive to the readers about the names being similar, since Ms. Cooper wasn’t famous.

  13. Darrelyn Saloom

    I agree with Ellie that the author should have been more careful under the circumstances. But I’m also concerned about the way things are going with lawsuits and political correctness. If a writer is afraid to portray characters’ actions during different time periods, society may as well handcuff the writers. It not only stifles creativity, it’s dishonest to change history.

  14. Gabriel Scala

    Susan,

    Great post! It is a tricky situation and one that I think most writers don’t think about. When I published my second poetry collection, I titled it with the name of a real person. My editor assumed I was using a fictitious name and was noticeably concerned when she learned (after publication) that it was a real name. It’s a lesson I took to heart and am careful now about using real people as "clear" characters in my work. I haven’t read the book you mention (yet) and so don’t know how the maid is characterized, but you seem to feel it’s a sympathetic characterization. I suppose we can never be truly certain of how someone is going to read what we’ve written about them – even if it’s loosely based. It’s a tough call. Writers write what they know. And what they know is real people in real situations. I’ll be curious to see how this plays out.

    Gabriel

  15. Ellie O'Leary

    I just can’t understand why the author made the character so similar, especially after she was asked not to do so. There were plenty of ways to come up with a name that would suit the character without using a name so similar and the same nickname. There must be reasoning here that we just don’t know about.

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