"It just seems like open season on 'Roots,'" says Alex Haley, his voice both resigned and a little dismayed as it comes over the phone from Miami. He is facing accusations that his "saga of an American family" - a blend of history, genealogy and novelistic techniques that is one of the most successful books in American history, is factually inaccurate and, where it is fictional, unoriginal; perhaps even plagiarized.
A suit for "copyright infringement" was filed in federal court late last week claiming that Haley's book is "largely copied" from Margaret Walker's 1966 novel, "Jubilee."
Meanwhile, Harold Courlander, a Bethesda folklorist and novelist, has compiled almost 30 examples of passages in his 1967 novel "The African" that he claims are paraphrased, by Haley's account.
British journalist Mark Ottaway, in a brief but much publicized piece appearing in the London Sunday Times last month, claimed that "the man who provided Haley with the vital link to [his African ancestor] Kunta Kinte was a man of notorious unreliability who probably knew beforehand what Haley wanted to hear."
Haley says he is currently at work on a rebuttal to Ottaway's charges, which he characterized as "misstatements, half-statements and innunendo," and he sees the allegations made by Walker and Courlander as the inevitable sniping that any important and successful book has to endure.
But it is one thing to criticize a book in the press, and it is another to take its author to court. Neither Margaret Walker Alexander [her full name] nor her lawyers [including her son F. J. Alexander] will comment on the case, but a single reading of both "Jubilee" and "Roots" does not immediately reveal similarities beyond the general nature of their subject matter.
If copyright infringement applied only to verbatim copying, there would be no problem for Haley.But in fact copyright infringement may include a very wide range of similarities, both general and specific. As one lawyer has put it, "The skeleton is part of the book." It is ultimately up to the jury to determine whether one work is substantially copied from another.
Furthermore, there is such a thing as unconscious plagiarism. According to Irwin Karp, general counsel to the Author's Guild and the Author's League of America, it is possible for an author to lose a copyright infringement suit even though he does not recall having read the book he is charged with copying. There have been, according to Karp, many instances of an author losing such a case even when he says he never heard of the book. In that regard it has been necessary only to determine that he could have seen the work.
Haley says that he does not remember reading either Courlander's book or "Jubilee," but did say that there is much that he has read and forgotten.
Facts, information, and general literary ideas cannot be copyrighted. What is in question here is the author's original expression.
"Roots" covers several generations of a black family: the slave brought to America from Africa; his daughter, the playmate of the white plantation owner's daughter, who is then sold to another plantation owner; her son, whose father is her owner; his son, a blacksmith, who eventually leads the family to a new home in Tennessee.
"Jubilee" focuses on the story of one woman, Vyry, who is the daughter of the white plantation owner and his slave. She is brought up in the "big house" where she is the playmate of her owner's daughter, and later she marries a blacksmith. After the Civil War she moves with her family to Alabama.
In both books there are encounters with cruel overseers and Ku Klux Klansmen, and both books are ostensibly written about the author's ancestors.
Courlander's book, "The African," contains an account of the middle passage, the voyage the slaves made in the many millions from Africa to America. It is the descriptions of this voyage that have provided Courlander with most of the parallels he cites.
From "The African": "The Captain's medicine was not good for all things. One man's leg became swollen and gangrenous. There was nothing that could be done except to amputate it, but this was not done because a slave with one leg was worthless. The man died and was thrown into the sea."
From "Roots": "The last time they were on deck, Kunta had noticed a man limping on a badly infected leg. The chief toubob had applied grease to it, but it hadn't helped. . . . When they next went on deck, he had to be helped up, and Kunta say that the leg, which had been greyish before, had begun to rot and stink even in the fresh air. This time the man was kept up on deck when the rest were taken back below. A few days later, the women told the other prisoners in their singing that the man's leg had been cut off . . . but that the man had died that night and been thrown over the side."
"The African": "How do I do this thing? Do it by being a no-good, lazy, shiftless, head scratchin' nigger, that's how."
"Roots": "Reckon since you been born I been actin like de no-good, lazy, shiftless, head-scratchin' nigger white folks says us is."
Courlander also cites similarities in sequences of events between "The African" and the first sections of "Roots."
If it can be proved that Haley and Courlander were both inspired similarly by primary source material such as say, a sea-captain's log, then Courlander's case would be weakened.
Courlander says that he did not do much research specifically related to the narrative of "The African," but relied on some 30 to 35 years in the field for his literary imagery. He concedes, however, that he might have made unconscious allusion in his own work to source materials he had read before but does not specifically recall.
When read the similar quotations about "head scratchin," Haley said, "That's just a cliche of black life."
As for other similarities, Haley said, "Every slave ship involved x number of people in the hold of that ship, chained for x number of weeks. There were millions of people who shares that experience. How different would those millions of experiences have been?
"Roots" is on its way, now, to become one of the major pieces of literature of all time. And if it is that, then it is necessary that it weather just such tests as these."
Courlander's allegations have not been taken to court. He said that in February he discussed what he saw as similarities with his editor, Herbert Michelman, at Crown Publishers. A short list of examples was shown to a lawyer and it was decided not to take any legal action. In light of new examples submitted by Courlander, this decision is now being reconsidered.
"We did joke about running ads for "The Roots of 'Roots,'" said Michelman, it was decided weeks ago to reprint the hardcover edition of "The African," he said, both on the basis of market reports indicating that the whole field of black history and novels with black themes was prospering as a result of "Roots," and because of the notable similarities.
For the same reasons, Bantam books repurchased the rights to "The African," which had been allowed to lapse after the first edition of about 200,000 copies in 1969.
Bantam had intended to wait until rights to "Jubilee" which has been in print as a Houghton-Miffflin hardcover since it first appeared. As of this writing there are plans for a 22nd Bantam printing, of 125,000 copies of "Jubilee" (more than 1 million have been sold over the last decade), and a second printing of 100,000 copies of "The African."
According to a publicist for the company, Bantam plans to run banners on the front of both books saying, in effect, "The book that came before the Roots experience", but a final decision about this step has not yet been made.
Bantam also owns the paperback September to reissue "The African," but pushed the publication up to next week in order to capitalize on the publicity the book has been receiving.