Alex Haley (23 page)

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.”
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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.”
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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.”
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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.
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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.
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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.”
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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 novel.” 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.
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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.
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From the bench, Judge Ward was skeptical that Haley had never read Courlander's book. “If he saw it and read it and made a couple of notes from it, and wrote a 600-plus-page book, you have one thing,” the judge said, but Haley's contention that he never saw the book “leaves me a little cold.” Haley had sworn that he had never read it—he had made the same claim about
Jubilee
—and Berger said he believed him. “I trust at the end of the case you will believe him, too,” he told the judge. Berger may have been whistling past the graveyard, because he already knew that Ward was hostile to his client.
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Haley's testimony was widely reported, and Joseph Bruchac at Skidmore College assumed that Haley was lying when he claimed not to have read
The African.
“The idea that someone would lie about something so important upset me deeply, especially because Haley had set such store on telling the real truth about slavery and then undercut his own work by stealing from others and then lying. It led me to write a letter to Harold about my having discussed and then given the book to Haley some 5 or so years before.” It was, of course, possible that Haley had not read the book, but it was unwise of him not to acknowledge he had been given it. Courlander and Kaplan each contacted Bruchac and asked him to testify at the trial, but Bruchac did not want publicity and instead gave an affidavit attesting to what he knew.
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The document was not submitted at the trial, at least not as a matter of record; affidavits are not admissible evidence once a trial has begun because the affiant is not available for cross-examination.

The trial took on a bizarre character. Judge Ward's wife, Florence, sat in a wheelchair in the courtroom through much of the proceeding, perhaps because she was very ill. From the bench, Ward alternately smiled at her and berated her. His nastiness to the sick woman shocked others in the courtroom. The trial was frequently interrupted for short periods for Ward to handle criminal arraignments, mostly for men brought up on drug charges. Shackled prisoners and their attorneys shambled in to hear Ward tell the accused that they could plead not guilty, but if they did so, the court would deal more harshly with them if they were found guilty. Most pleaded guilty on the spot. The lawyers waiting on the sides for the Courlander case to resume noted that Ward's sentences for the blacks pleading guilty were twice as long as those for the whites.
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