Roman à clef, not quite

By skepticlawyer

One way–in days gone by, when the West at least was less free–for authors to satirize the Great and the Good was for them to employ the roman à clef, or ‘novel with a key’. The actual phrase was coined by leading French author Madeleine de Scudéry, who used the technique to do just that: she wrote her books with fictitious, but recognizable names (and characteristics) that the alert reader could link to real people in the upper reaches of French society. She was immensely popular in her day and so skillful the people she hung out to dry couldn’t do a damned thing about her, legally or otherwise.

Of course, other writers both before and especially since have employed the technique, although like Scudéry’s use of it the best examples of the genre tend to involve satirizing or otherwise attacking those best able to defend themselves: the rich and the powerful. Somehow (and I am not sure why this should be so), this seems entirely legitimate. If a person writes a roman à clef about poor people, it seems inherently unfair. This isn’t to say that romans à clef about the powerless haven’t been written, just that (and this is an uncomfortable truth), the poor and the powerless are not, as a rule, people who read books.

Perhaps that’s why it’s taken so long for the rather awkward situation outlined in last Friday’s Wall Street Journal to percolate to the surface:

JACKSON, Miss.—A former baby sitter for the family of the author of “The Help,” a best-selling novel about Southern black domestic workers and their white employers, has filed a lawsuit claiming she was humiliated by the book.

The lawsuit claims Ablene Cooper was the basis for the book’s “Aibileen” character, and that Ms. Cooper asked author Kathryn Stockett not to portray her in the book, and the writer refused.

[…]

Ms. Stockett couldn’t be reached for comment. In interviews, she has said the plot and characters were fictitious.

“This is a beautifully written work of fiction and we don’t think there is any basis to the legal claims,” said publisher Amy Einhorn, at Amy Einhorn Books, a unit of Pearson PLC’s Penguin Group (USA).

[…]

Few books in recent years have enjoyed as much good word-of-mouth publicity as Ms. Stockett’s debut work, published in 2009.

Set in Jackson in the 1960s, it focuses on the relationships between African-American maids and affluent white families that employed them.

The novel became a staple for book groups across the country. Its depiction of the deep frustrations of black servants in the South stunned many middle-aged and older white southerners.

[…]

According to the lawsuit, the book says “Aibileen” is an African-American, middle-aged, has a gold tooth and has a deceased son—all of which match Ms. Cooper. The complaint says the portrayal of “Aibileen” reflected negatively on Ms. Cooper, because she doesn’t speak or behave in the manner of the character in the book.

Leaving aside damages for humiliation, which are possible in the US (and the main reason a US attorney friend shared the article with me on Facebook), this story struck me as enormously messy and complicated, for the simple reason that novelists are notorious for cannibalizing the lives, attributes and even turns of phrase of people they know and then blending them into fiction. Of course, some writers do it more than others–in the Australian literary pantheon, Christina Stead was so fond of turning persons into paper that people were reluctant to go to social engagements with her on the grounds that they suspected they’d appear in her fiction in deeply unflattering versions.

Few–or even none–of the writers who use ‘plain folk’ in this way consider what they’re doing to be roman à clef, precisely because they don’t want the characters to be identifiable as real people. They just want them to seem real and convincing, and thereby persuade the reader to keep reading. I have done this myself as a writer. Most writers I know do the same thing. (In fact, I’m struggling to think of one who doesn’t, and I know a lot of writers.)

One effect of the WSJ piece (on me, at least) was that it made me want to read The Help. In researching this post, I found a lengthy excerpt on the UK Daily Telegraph site. There is no doubt that Kathryn Stockett can really write, and I now want to read more. Ablene Cooper, for all her distress, is falling prey to the Streisand Effect, which despite geeky pretensions to the contrary, has always existed in litigation about reputation, be it defamation or damages for humiliation or something else. That said, she may just want the money: sometimes damages are an adequate remedy, for the simple reason that they buy capacity if not anonymity. Successful litigants in actions like this are often happy because they are freed to do something else they couldn’t otherwise do: pay out their mortgage, move to a remote location, wall out the world in some other way (if the sum is large enough).

There are other complexities, too. In a jurisdiction like the United States–where winning a defamation case is nigh on impossible, thanks to the First Amendment–I suspect that people who feel they have been ‘defamed’ turn to ‘humiliation’ instead, on the rationale that they may have a better chance of victory. This is just a hunch, of course, and I’d be grateful to my US lawyer friends if they could elucidate the point further.

Defamation is also different from invasion of privacy, although in jurisdictions like Australia, where there is no tort of invasion of privacy, claims that are actually about privacy are often made in other areas of law: defamation, as mentioned, or breach of confidence. England and Scotland–following the ECHR’s jurisprudence–are on the way to developing a tort of invasion of privacy, at least in part due to Max Mosley’s actions. He has the money and clout to push the privacy issue hard, although he is adamant that he wants the principle extended to ordinary people on council estates who are often made the subject of prurient interest in the ‘Red Tops’ or tailed down the street by the more scurrilous purveyors of television ‘news’:

[…]The Formula 1 boss is taking a case to the European Court of Human Rights.

In Strasbourg, he is asking the court to rule on ‘prior notification’. This would mean that in a case like Mr Mosley’s, journalists would be obliged to approach the subject of any investigation ahead of publication and inform them of the details of any allegations.

The subject would then be able to apply for a legal injunction to stop publication. Max Mosley wants journalists who publish without giving prior notification to face prison.

All of this, of course, is taking place in a world where exhibitionism has never been easier, where information has never been more available, and where the public/private distinction has been so eroded that people often have no sense of what is legitimately their business and no-one else’s.

Of course, as with the underlying substance to the different legal claims, there is a vast gulf between the talentless journalist who engages in covert electronic surveillance of a noted public figure and the author who uses bits of ‘real but average people’ to make his fictional characters more realistic.

But the underlying privacy issue is still in play, the very simple and basic request not to be written about. And to that, I have no adequate response.

[A very large tip of the hat to Tim Mulligan].

18 Comments

  1. Posted February 21, 2011 at 9:13 pm | Permalink

    I’ve read and reviewed the novel and it’s very good. What I find puzzling about this story is that as far as I can remember, the character in question is a wonderful person; one would imagine that if a real person was determined to read it as a straight portrait, they’d be thrilled to see themselves reflected as a strong, generous, complex, upright character. I would have thought ‘humiliated’ would be the very last thing you’d feel.

  2. Posted February 22, 2011 at 7:18 am | Permalink

    I gather that novelists are sometimes contacted by strangers, claiming that the novelist has “stolen their life.” Fiona Kidman, a New Zealand novelist whose memoirs I am presently reading, has several stories about this. It’s a kind of egocentricity, I suppose. And Alison Lurie has a marvellous story about someone she knew slightly preening, because they thought that a ‘good’ character in one of her novels was based on them. She didn’t tell them that they had, in fact, given her inspiration for a much nastier character in the same book.

  3. derrida derider
    Posted February 22, 2011 at 9:30 am | Permalink

    Christina Stead was so fond of turning persons into paper that people were reluctant to go to social engagements with her on the grounds that they suspected they’d appear in her fiction in deeply unflattering versions.

    What’s with these people? I’ve got a couple of writer friends, and have repeatedly invited them to caricature me in their scribblings in the most inventively libellous way possible, just for the egocentric joy of it.

    I reckon that would be most people’s reaction. Anyone with any sense can distinguish fiction – inspired by real persons and events but with perceptions and values created by the writer – from non-fiction.

  4. Nick Ferrett
    Posted February 22, 2011 at 9:38 am | Permalink

    A friend of mine was very badly portrayed in a book which did quite well. The portrait was unfair. She took it very badly. Because the book was semi-auto-biographical, no-one in the circles in which we moved had any doubt who it was. It was quite humiliating for her.

    Should she have a remedy? Any remedy, if not in defamation, is pretty close to that form of relief. Virtually no good comes of that tort. I think there is a strong case for abolishing it.

    The availability now in Australia of truth as an absolute defence means the Oscar Wilde pitfall looms large. Even if the truth isn’t proven, the nastiness of the attempts to prove render a vindication by verdict of little practical effect.

    As for Pavlov’s Cat’s comment above, I can imagine that a person who is either modest or intensely private may regard even a favourable portrait as invasive. That apart, the favourability of a particular portrait is in the eye of the beholder.

  5. Posted February 22, 2011 at 5:11 pm | Permalink

    I’m familiar with the book(s) – there were eventually two of them – Nick mentions above. I too copped a negative portrayal, but mine was a mere half page plus a footnote, and I could legitimately be described as a public figure. Other people, however, were excoriated for pages and pages of amusing but utterly partisan invective. The author, too, exhibited exactly the sort of ‘I’m a writer’ sense of entitlement that makes people on my side of politics want to abolish the Australia Council and reduce anyone with artistic pretensions to mendicant status.

    As for defo, what to do? I think we need something, or people will take the law into their own hands. I don’t actually know much about the history of the English tort of defamation, but I have learnt that the Roman equivalent (‘iniuria’) emerged in response to quite a serious rule of law issue: people hiring gangs of thugs to beat the crap out of people who’d traduced them. After a particularly egregious incident involving a High Priestess of Cybele and a poet who finished up minus his nuts (anyone who knows anything about Roman religion will get how targetted this assault was) the powers that be did something about it. The jurists are unanimous that once the matter could be disposed of via an award of damages, the violence stopped – in other words, Max Mosley is a statistical outlier. For most people, damages are an adequate remedy.

    It is very difficult to know what to do.

  6. derrida derider
    Posted February 22, 2011 at 7:30 pm | Permalink

    My understanding is that the tort of defamation was developed explicitly to prevent duelling, by giving an alternative means of vindicating one’s honour. So the motivation was not so different to the Roman one.

  7. derrida derider
    Posted February 22, 2011 at 7:31 pm | Permalink

    It is very difficult to know what to do.
    Not for a writer like you. Simply respond in kind.

  8. Posted February 22, 2011 at 8:32 pm | Permalink

    Hmmm…. Maybe politicians, given their privileged speech, should be allowed redress for offended senses of honor in the manner of Hamilton and Burr. Bugger the single-shot pistols, I reckon single-shot heat-seeking 1 kiloton missiles would be the go…. but still at 10 paces.

  9. Patrick
    Posted February 23, 2011 at 4:16 am | Permalink

    And only in Canberra, whence no politician should be allowed to leave on pain on death.

  10. Posted February 23, 2011 at 5:23 am | Permalink

    Patrick, that would be unfair to those of us who live in Canberra year round.

  11. derrida derider
    Posted February 23, 2011 at 12:21 pm | Permalink

    Pen –
    No fear – bring ’em on I say. I live in Canberra and would love nothing better to watch the regular post-Question-time duels on the lawns of Parliament House. I reckon it’d be a great tourist attraction, with the crowd naturally barracking for one party or the other.

  12. Nick Ferrett
    Posted February 23, 2011 at 1:59 pm | Permalink

    I don’t think defamation was developed for any particular purpose in English law. Libel and slander were compensated by actions on the case in the same way as other wrongs before the common law fell out of love with the invention of new torts via actions on the case.

  13. Patrick
    Posted February 23, 2011 at 5:39 pm | Permalink

    DD, you may not have focused on DB’s preference for mandatory use of one-kiloton rockets – there would only ever be one duel 😉

  14. Posted February 23, 2011 at 6:07 pm | Permalink

    Yes, the history of the English tort of defamation is rather murky still; tooling around the internet and going through my textbook has yielded the Roman history, with quotations from relevant jurists, but remarkably little on the development of the English tort (apart from comments about actions on the case, as Nick mentions).

    Since there are significant elements of delict (Roman tort law) that deviate from the English model, and I have to study them, this is a nice little comparative law project.

  15. Posted February 23, 2011 at 9:30 pm | Permalink

    Oooh yes please, that would go down well, especially the rather novel Roman approach to causation. Also, did you get that Raz paper you needed? I sent it through a few days ago.

  16. Nick Ferrett
    Posted February 24, 2011 at 7:51 am | Permalink

    From my peregrinations around the net this morning when I should have been working, it seems that the Statute of Westminster prohibited “scandalum magnatum”; basically, defaming the great and powerful. There are records of criminal punishment of libel in the Court of Star Chamber during the Stuarts’ time.

Post a Comment

Your email is never published nor shared. Required fields are marked *

*
*