Alex Haley (22 page)

Leading historians, including Bernard Bailyn and Robert Fogel from Harvard, came to Haley's defense. Bailyn thought that “this account is the author's perception of the meaning of slavery, and the account is one of sensibility. I don't think it turns on details. It turns on a state of mind, and there's no documentation of that.” Fogel said he would not hold it to the same standard that he applied to history by professional historians. David Brion Davis and Edmund S. Morgan of Yale also stepped up. Davis thought
Roots
was a work of history and still excused the errors: “We all need myths about the past.” Morgan suggested that the debate about factual accuracy did not matter. “You can point out errors to your heart's content and it won't affect people's attitudes. It [will] just make them mad.” Oscar Handlin at Harvard was the main academic dissenter: “A fraud's a fraud.” Handlin said that historians were reluctant to mention errors “when the general theme is in the right direction; that goes for foreign policy, for race and for this book.”
15

The syndicated columnist Ellen Goodman gave perhaps the most spirited defense of
Roots.
She said Haley was not a historian but a “witness bearer.” She thought the doubts about the historicity of
Roots
carried the implication that if some of Haley's facts were wrong, then the book was a fraud. “Perhaps we can comfortably close our eyes to the most vivid picture of slavery written in our lifetimes,” Goodman wrote, but she was sure that that would be a bad outcome. “By looking at the heart of slavery,” she wrote, “Haley looked evil in the eye,” when the natural human impulse would have been to “look away, to deny evil when possible and to reject it as part of our heritage as human beings.” This was as true for Americans dealing with the slave past “as it is for those who carry the memory of the Nazi holocaust.” The victims of evil and their descendants were among those most prone to ignore it. Haley did not attempt to explain slavery but instead wrote about “the experience of evil,” a subject that did not “pivot on the ‘reliability' of a
griot
in a small Gambian village.”
16

The Ottaway article spurred most of the hard scrutiny of Haley's research that was to come in the years ahead. Virtually every commentator after April 1977 noted Ottaway's criticism, and few gave Haley's response or questioned Ottaway's reasoning. In May, Eliot Fremont-Smith, who had reviewed
The Autobiography of Malcolm X
with glowing praise in the
New York Times,
now used Ottaway to build an exposé of Haley in the
Village Voice
under the headline “Alex Haley and The Rot in ‘Roots.'” Fremont-Smith characterized Haley as “defensive of late” and claimed that he “ranked his book with the Bible,” which Fremont-Smith thought “smacks of absurdity and possible dementedness.” This was an absurd criticism, because Haley had said no more than that
Roots
was based on oral history as much of the Old Testament was. Fremont-Smith recounted Ottaway's accusations of inaccuracy without a moment's skepticism, making Haley seem like a self-righteous egomaniac.
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* * *

The financial success
of
Roots
opened the possibility of copyright infringement claims, a common occurrence in publishing. Haley spent much of 1977 and nearly all of 1978 working on his defense in five such suits. One was quickly dismissed, and another, about which little is known, was defended successfully by Doubleday. Margaret Walker Alexander, a poet and novelist, brought two of them, the primary one having to do with her novel
Jubilee
and a second suit based on her essay “How I Wrote
Jubilee.
” She sued Haley in mid-April 1977 in federal court in the Southern District of New York, charging that Haley had taken his depictions of the Waller and Lea plantations from portraits drawn in
Jubilee.
A few days later in the same jurisdiction, Harold Courlander, a folklorist, filed a claim that there were numerous similarities of theme, structure, and language between
Roots
and his book
The African,
published in 1967 and described in the
New York Times
as “a novel dealing with freedom in Africa and slavery in Georgia.” Haley responded that he had spent twelve years writing the book, “and if I were copying I'd type faster than that.”
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At the announcement of his suit, Courlander issued a list of “thematic parallels” between the two books, to which Haley replied: “Anybody who writes about something as thematic as slaving knows that the whole slave trade was thematic, the middle-passage . . . was thematic. You take 100 men, put them in the hold of a ship, all in chains and all going through more or less the same thing I would venture to say that their experience would tend to be thematic.” Haley's agent and editor came immediately to his defense. Paul Reynolds said that “the book is original and is Haley's. . . . This is perfect nonsense.” Margaret Walker Alexander's suit in particular, Lisa Drew said, was the “most ridiculous thing.”
19

The accusations involving
Jubilee
and
The African
are usually referred to as charges of plagiarism, which in the academic world refers to using published material without giving attribution, whether or not the copied material was in the public domain. In the law of copyright, material in the public domain can be copied freely. In Haley's case this included many of the eighteenth- and nineteenth-century sources on which
Roots
was based—such as slave narratives, the debates on slavery in the House of Commons, and the notes of physicians who treated slaves during the Middle Passage. Although all of these books drew from sources in the public domain, the plaintiffs argued that Haley had also copied their original work. The two governing legal issues in the case turn on the question of “access”—whether the alleged copier had access to the source from which the borrowed material came, and whether there was “substantial similarity,” which meant that a large portion of the alleged copier's text was so similar to the original that it was presumably copied.

Margaret Walker Alexander—known professionally as Margaret Walker—was born in Birmingham in 1915 and educated in Chicago, where she worked on the Federal Writers Project. She was a good friend of Richard Wright, though she believed that Wright had appropriated some of an unpublished novel for
Native Son.
20
She became recognized as a poet with the publication of her 1937 poem “For My People.”

Walker's research and writing of
Jubilee
bear striking similarities to those Haley did in
Roots.
Jubilee
was the story of Walker's family, which she had learned from her grandmother, the child called Minna in the novel. Because the grandmother lived until Walker was an adult, the writer had had years to interview her for factual details about her life and that of her mother, the Vyry character in the novel, from whose perspective the story is mostly told. Walker started composing the story in 1934 while still an undergraduate at Northwestern University. As a graduate student in 1939 and 1940 at the University of Iowa's Writers' Workshop, she did more research, reading widely in the history of the South and consciously viewing material from three perspectives—those of southern whites, northern whites, and blacks. Then her peripatetic teaching career began, and her research mostly stopped, but with a Rosenwald Fellowship, in 1944, she examined the backgrounds of free blacks in antebellum Georgia, looking specifically for her great-grandfather Randall Ware, so named in the novel. In 1948 Walker began teaching at Jackson State University in Mississippi. With a Ford Fellowship, in 1953 she did six months of research in Alabama and Georgia, backtracking her family's locations from the time she was born in Birmingham to the moment her relatives had left Georgia just after the Civil War. In 1954, with the birth of her fourth child, Walker's progress on the novel stopped for seven years, but then in 1961 she returned to Iowa to work on a PhD. She completed all of the coursework and language study for her doctorate. From 1964 to 1966 she wrote the remainder of
Jubilee,
submitting it as her dissertation.
21

Jubilee
is an excellent novel with realistic characters, a plethora of interesting details about black folk life and culture of the nineteenth-century South, sharp observations of white racism, and a plot that keeps the reader focused until its end. It was an immediate success as literary fiction, a book that held its own with the works of Wright, Zora Neale Hurston, and Ralph Ellison, to which it was rightfully compared. Like Haley, Alexander had written a didactic work, meant to recount “the history that my grandmother had told me, and to set the record straight where Black people were concerned in terms of the Civil War, of slavery, segregation and Reconstruction.” For her, the role of the novelist was the same as that of the historian. “More people will read fiction than . . . history, and history is slanted just as fiction may seem to be.” As a work of art,
Jubilee
is superior to
Roots.
But that did not mean Haley had infringed on Walker's work.
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There are important differences between
Jubilee
and
Roots.
Walker's novel covers a much shorter time frame, about 1850 to about 1870, with a main focus on one generation. Still, it is a long book, about four-fifths the size of
Roots.
Walker's female characters are much more fully developed, and her men are treated more critically, although not without sympathy. She was shrewder about the fact-or-fiction question, perhaps because she was always a novelist and knew from the start that hers was a work of fiction, whereas Haley had spent most of his career as a journalist. Her basic story was true, but “imagination has worked with this factual material . . . for a very long time.”
23

Walker and Haley were acquainted, because he had lectured at Jackson State in 1971. Haley freely acknowledged that Walker was an admired writer and that he himself held her in esteem, although he said he had never read
Jubilee.
Walker had tried to get
Jubilee
adapted for film or television, and she had seen what she considered lesser works than her own produced. Certainly she put
Roots
in that category. She had been laboring for decades at a poorly funded black college in Mississippi, and she felt, with justification, that her work was underappreciated. That
Roots
got
so
much more attention than
Jubilee
clearly galled her.

Walker asserted 112 instances of Haley's allegedly borrowing of language from
Jubilee.
While there are many examples of the same words and phrases used, her evidence was not persuasive that the two writers' use of the same common southern and black folk terms amounted to an instance of copying. She concluded that her novel was “the first from the slave's point of view . . . first as an example of the oral history-genealogical genre. There has not been prior to
Jubilee
another civil war novel written by a black person from that point of view. . . . Customs, expressions, daily life and manners in the slave community had never before appeared in any novel.” And then she made a large leap of logic: “Therefore,
Jubilee
must be the model for
Roots.
There is no other book like it prior to 1966.” If Haley had admitted using her book or copying from
Jubilee,
Walker asserted, “that would have been another matter. To claim that
Roots
is first is an impostor's claim.
Roots
is usurping what belongs to
Jubilee.
”
24

The Walker case was heard by Judge Marvin E. Frankel, who had been an accomplished lawyer in defense of First Amendment rights, including the landmark libel case
Times v. Sullivan
in 1964. President Lyndon Johnson had appointed Frankel to the federal court in 1965. From Los Angeles Lou Blau found a New York expert on copyright law, a forty-two-year-old NYU graduate named George Berger, to represent Haley. Berger later characterized Frankel as “acerbic, arrogant, and intellectual,” and especially astute in his understanding of copyright law. Berger argued that the nonfiction writer should have “free access to the facts of history without fear of losing his profits.” Berger's reasoning was close to that inherent in the freedom-of-expression argument that had triumphed in
Times v. Sullivan.
25

Berger said Walker's examples were merely “a catalogue of alleged similarities that is strained, insignificant, and devoid of factual or legal substance” and did not prove a violation of copyright law. One category of alleged copying that Judge Frankel noted in his opinion was that of passages based on folk custom—for example, the phrase “jumping over the broomstick,” which signified slave marriage. Walker also alleged that Haley's use of the term “making mud pies” was an unlawful appropriation. Haley had said that he made mud pies as a child, and Berger successfully argued that such usage was clearly part of Americana and thus in the public domain. Another category of non-protectable material was
scènes à faire,
scenes in a book that are necessary or obligatory for the plot. Judge Frankel wrote that “attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves, the atrocity of buying and selling human beings . . . are all found in stories at least as old as Mrs. Stowe's. This is not, and could not be, an offense to any author. Nobody writes books of purely original content.” Walker also claimed that Haley had borrowed clichés like “poor white trash” and “everything went black” (for a slave who has just been whipped). Frankel declared that “words and metaphors are not subject to copyright protection,” nor were “phrases and expressions conveying an idea that can only be, or is typically expressed in, a limited number of stereotyped fashions.” Berger asked for summary judgment in the suit, and in September 1978 Frankel granted it, thus ending the case.
26