Alex Haley

by Robert J. Norrell

  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 She was a good friend of Richard Wright, though she believed that Wright had appropriated some of an unpublished novel for Native Son.20 She became recognized as a poet with the publication of her 1937 poem “For My People.”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.22

  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

  The next case against Haley would be far less straightforward. Harold Courlander’s The African told the story of a young man captured in Dahomey in 1802 and taken first to St. Lucia in the Caribbean and then to Georgia. Compared with his works of folklore, which comprise a long and impressive bibliography, The African was not very good. But Courlander was an interesting man. Born in 1908, the son of a not very successful Jewish tailor who gained some fame as a painter, Courlander grew up in a Detroit neighborhood of ethnic and racial diversity. He was a successful undergraduate at the University of Michigan, winning prizes for playwriting and criticism. He worked for the Office of War Information during World War II and then after the war for the Voice of America, retiring in 1974. Along the way he took research leaves financed by three Guggenheim fellowships. He wrote eight novels, fourteen scholarly works on various aspects of American and Caribbean folklore, fourteen collections of folktales, and twenty-two scholarly articles, and he assembled fifty-two albums of folk music recordings. His early books were interpretive retellings of folktales from Haiti and West Africa that were well reviewed as children’s literature. His 1939 book, Haiti Singing, won plaudits from its New York Times reviewer for its “truly scientific spirit” and its “quiet sympathetic tact.”27 The Cow-Tail Switch and Other West African Stories, published in 1947, won a Newbery Honor Award. His 1963 Negro Folk Music U.S.A. became a standard textbook in college folklore classes.

  Courlander and Haley had corresponded and may have met prior to the case. Courlander had written to Haley after reading the 1972 New York Times piece, “My Furthest-Back Person, The African,” which he found “enormously interesting.” He asked about Haley possibly appearing on a Voice of America program and contributing the Times piece to an anthology of Afro-American literature Courlander was putting together. He was sure that Haley’s book would be out before this anthology appeared, in 1974 or 1975, and so “there is no question of my getting ahead of you in any way.”28 There is no record of a reply from Haley.

  But Haley knew of Courlander even earlier. In 1970 Haley had lectured at Skidmore College, in Saratoga Springs, New York, on “Before This Anger.” In the audience was an English professor, Joseph Bruchac, a specialist in Native American literature who also had a strong interest in African history. Bruchac had taught in Ghana from 1966 to 1969 and knew many African writers, including Chinua Achebe, author of the internationally renowned anticolonialist novel Things Fall Apart. He also knew Courlander personally and admired both his collections of Native American folklore and The African. Forty-five years later, Bruchac had a remarkably clear recollection of meeting Haley at Skidmore. He had found Haley’s lecture interesting and talked with him for some time at the reception that followed. Haley asked Bruchac what books he used in teaching about Africa, and Bruchac mentioned The African, which he thought “dealt so well with so many aspects of the slave experience in Africa, on ship, and in America.” Haley seemed not to have heard of it. “I then drove the three miles home, grabbed my personal copy (that I’d annotated) and came back to the reception where he was waiting for me—with his overcoat on. I pointed out a few things in the book to him, then gave it to him. He placed it in his right coat pocket, shook my hand, thanked me, and said he was sure it would be useful, that he would read it on the plane ride home and let me know what he thought of it.”29

  Courlander was astonished at and perplexed by the success of Roots. “How can I say it calmly,” he wrote to his editor at Crown Publishers in February 1977, “without feeling too much?” Roots was selling “so fast they can’t keep track of how many. But where is The African, which scooped Roots by ten years?” Courlander’s book was now out of print. He had been pleading for a reissue since at least 1975 to no avail. In February 1977 he noted the similarities between the two books and sent his publisher examples of what he thought were Haley’s “borrowings,” but after talking with the publisher, he was “satisfied that there is no legal redress.” Any author who has seen a book he believes to be lesser than his own gain greater fame, or who has felt that his work has been neglected by his publisher, can identify with Courlander’s resentment. Soon after he wrote to his publisher, that feeling turned into a lawsuit alleging copyright infringement. Crown soon did reissue The African, no doubt with the intention of capitalizing on the interest in the slave experience caused by Roots and the emerging conflict over copyright infringement.30

  Haley had to turn over many boxes of research notes to Courlander, which violated Haley’s sense of privacy and authorial privilege, but he and George Sims assembled the files.31 There were no notes on novels anywhere in the material. Still, Courlander came away with ninety-eight instances of what he alleged was copying, although nearly all of them were examples of common words and phrases and not passages of a sentence or longer. But Courlander identified four passages that he believed showed that Haley had copied from The African. In the first, Courlander’s captive character says, “The sun rises in Africa, and whenever we see it we shall remember the place of its daily birth,” while Kunta recalls an old man saying, “Each day’s new sun will remind us that it rose in our Africa, which is the navel of the earth.” A second example from The African reads, “‘We are different tribes,’ Doume said. ‘We bear different marks upon our skins. But as of today we are one village.’” And from Roots: “The voice of an elder rang out, ‘Hear me! Though we are of different tribes and tongues, remember that we are the same people! We must be as one village.” A third example from The African: “‘First thing to learn,’ Old Ned said, ‘is to forget all that African talk. Old Master, he don’t like it. Overseer, he don’t like it neither.’” And from Roots: “‘I’m tellin’ you, boy, you got to forgit all that African talk. Make white folks mad an’ scare niggers.’” A fourth example from The African: “In my young days, I run away three times. . . . That time I got no place to get away, I fight with ’em right here. . . . How do I do this thing? Do it by bein’ a no-good, lazy, shiftless, head-scratchin’ nigger, that’s how.” And from Roots: “My young days, I run off so much dey near ’bout tore my hide off ’fore I got it in my head aint nowhere to run to. . . . Sooner later you gets cotched an’ nearly kilt. . . . Reckon since you been born I been actin’ like de no-good, lazy, shiftless, head-scratchin’ nigger white folks says us is.”32

  George Berger understood that Judge Robert Ward, a recent Nixon appointee to the court, knew little about copyright law, but he seemed like an affable fellow, so when Berger suggested during an early trial conference that Ward hand off the case to Frankel, Berger was taken aback when Ward said, “You pulled the wool over Judge Frankel’s eyes, but you won’t pull the wool over mine.” Ward told the lawyers that he would let them explain the evidence. At one point Berger referred to a federal appeals court decision, and Ward asked, “What idiot wrote that?” Berger replied, “Judge Learned Hand”—widely considered the most influential American jurist not to have served on the U.S. Supreme Court. At one point, Ward volunteered, “I don’t read a lot,” and admitted that his most serious reading was Reader’s Digest. Berger suspected then that he was in trouble, but his hunch became a certainty when Ward pressured Courlander’s lawyer, Robert N. Kaplan, to drop the ABC television network as a defendant. The basis for this action appeared to be that Ward identified with the Edward Asner character in the Roots miniseries, the morally tortured Captain Davies of the slave ship. Kaplan let ABC out of the case. There was no limit on such judicial impetuousness, regardless of how irresponsible, short of appeal.

  The trial started in early November 1978. In his opening statement, Kaplan told the court that it was “incredible” for Haley to maintain that he had never read The African. “Mr. Haley has taken over the language and dramatic mood of this no
vel.” Kaplan pointed to verbatim replication, including text from page 128 in The African, which tells how the slave captive “awoke one morning more lighthearted than he had felt since leaving his village. He carried his knowledge secretly as a treasure.” In Roots: “Kunta awakened more lighthearted than he had felt since leaving his village. He carried his knowledge secretly as a treasure.” Another example from The African, on the same page: “There were some in the south camp who saw Wes smile for the first time.” Roots: “There were those in the slave quarters who declared to others that they had just seen him smile for the first time.” The two books used an identical field call: “Yooo-hooo-ah-hooo.” Courlander and Crown asked for more than half the profits from Roots.33

  Berger responded that, notwithstanding a few examples, “the evidence here will show that there is no substantial similarity between the two books within the meaning of the copyright law,” which required that “the alleged copying must be readily apparent to the average lay reader.” Roots was the “result of a colossal research effort and dedication by Mr. Haley, much of it completed before The African was published.”

  Most of the persuasive examples of copying came from the sections on the Middle Passage. This was ironic, because Haley’s rendering of the Middle Passage was long, electrifying, and horrific, whereas Courlander’s was relatively brief, flat, and almost boring. Courlander also claimed that he had done no research for The African, a statement that strained credulity, given the clear reflection of some well-known primary documents in his text. In both books, there were scenes of slaves being made to dance in chains on ships, probably inspired by British antislavery broadsides, although the language in the two books differs.

  Haley spent several days in the witness box answering questions from Berger about how he researched the book. He explained that he often received notes with research leads from people who had attended his lectures. “In the midst of a reception, with people sort of crowding about, someone would say, ‘here’s something of interest to you, I think.’ . . . It might be anything from a 3 × 5 index card which might contain the name of a book and author. It might be something they had Xeroxed. It might be something in longhand.” After he finished a lecture tour, he would put the notes collected in a box, and eventually he would look through the material and decide whether to make use of it. By the time he did this, however, he usually had lost all sense of a note’s provenance. George Sims reputedly read virtually everything that Haley read, and he was said to have a photographic memory. Like Haley, Sims said in deposition that he had never read The African.34