THE FORTNIGHTLY CLUB
OF REDLANDS, CALIFORNIA  - Founded 24 January 1895

4:00 P.M.

March 15, 2001

The Literary Disclaimer: Law, Fiction, and the Real

disclaimers.jpg (23350 bytes)

by Bill McDonald

Assembly Room, A. K. Smiley Public Library


In your mind’s eye, pick up one of your favorite novels and hold it in your hands.  Feel its substantial weight, its undeniable reality.  Those sharp-edged covers hold within them a story that you prize, a story whose insights may have even altered how you live.  At the same time, of course, you know that it’s all a fiction.   “I know this is all made up, unreal,” you say to your novel, “and I happily surrender my suspicions and my fact-mongering to your magic.  Teach me about the world, and entertain me while you do it.”

            But, in fact, fictions do not open directly onto a novelistic world but onto two pages of solid facts and undeniable truths.  The title page gives a real name — say, The Perfect Spy — of a real object you’re holding.  The author’s name, it’s true, may  be fictive — in this instance, John Le Carr — but this doesn’t alter your reading very much.  The publisher’s name is, almost always, real: say, Alfred A. Knopf.  Well, it’s a fact that Knopf is now owned by a large conglomerate that hides behind that house’s venerable reputation, but it’s still pretty much a real company.  So the title page may have a few fictions interspersed with its real life affirmations, but when you look to its left, you find some bits of disconnected prose that seem to be unequivocally non-fictional.  These stern, humorless fragments declare the writer’s and/or publisher’s ownership of what follows.  They “reserve all rights,” severely curtailing your wish to “reproduce in any form” any part of the imagined story to follow.  They tell you what edition or printing of your novel that you will read.  They reproduce an ISBN number and a series of genre classifications determined by the Library of Congress.  They offer legal acknowledgements of material taken from other books, reminding you redundantly that books are property like anything else, and their contents have legal standing.  “Plagiarism” and “defamation” are the unstated words haunting the edges of this data page.  

In the midst of this assertively non-fictional, legal language you often find a sentence or two declaring solemnly that what follows is indeed what it claims to be, namely a fiction, and that any resemblance to the real world, the real world that this sentence itself so insistently names, is “entirely coincidental.”  Not partially coincidental, or occasionally coincidental, but fully and completely so, utterly disconnected from the world of fact and law and civil authority that this single page of the novel so insistently belongs to.

            I propose to take us on (I hope) an amusing, and labyrinthine, journey into the world of the legal disclaimer.  My premise is that these disclaimers consistently betray the solemn, real-world forces they purport to serve, and regularly transgress the border between fiction and reality they seems to establish so securely.  We often take the drawing of this borderline as itself a fact.  But — and here’s my thesis in the largest terms — the disclaimer’s uncertain status models how (1) the structures of narrative, (2) the half-conscious shaping power of genre, and (3) the power of the imagination quietly occupy all our other factual discourses: of sociology, of history, of biography and journalism, even of law.  Literary disclaimers, in fact, tend to be unruly members of the data page, despite their appearance of legal propriety.  Unlike ISBN numbers and copyright notices, they often spill over onto the title page as a “publisher’s note” or, more frequently, an “author’s note.”  The spillage may extend to the fiction’s official preface or even the actual first paragraph of the novel, as if the legal force of the disclaimers is limited if it is confined to the data page.  Legal questions come up near the end this paper, but it is not primarily a paper about libel law.  I’m more interested in the permeable border between legal and fictional language, in the ways that the tropes of legal discourse may be colonized by the rhetorics of fiction.  

My interest in the topic dates from a brief TLS review article by Peter Mack several years ago, in which he copied out a few disclaimers and wondered why their form wasn’t more standardized.  I started collecting them, and as their variety burgeoned I did a little research and soon realized that no one, Mr. Mack aside, found them worth writing about.  I had high hopes for Kevin Jackson’s recent book  Invisible Forms: A guide to literary curiosities (St. Martin’s, 1999) which takes up all subjects normally bypassed in literary inquiry: dedications, title pages, acknowledgements, footnotes, indexes.  But not disclaimers.  So I’m offering Mr. Jackson a new chapter for his book, an interloper into his irony-laden pages, that I hope here to be as entertaining, as “light,” but also provocative, as he was.


I

 Disclaimer.  The term enters English law in this way.

Oxford English Dictionary: “Disclaimer”  originally described feudal tenants who disputed their terms of service (from 1579 in England): hence it means the repudiation of any legal claim.  From 1573 it referred to renouncing any legal claim, especially an inheritance, estate or duty (a usage it still has today).  From 1835 a “disclaimer” also has a special sense in patent law: a patent holder may disclaim a part of the object patented because his original claim was too comprehensive.  The term now covers disavowal of claims or pretensions — a renunciation, denial or rejection — and has done so since volume five of Edmund Burke’s French Revolution of 1790.  Coleridge (Aide to Reflection, 1805) was, to my knowledge, the first to theorize explicitly its literary uses:  “If after these disclaimers I shall without proof be charged by any with renewing or favoring the errors . . .”)

Literary disclaimers first appear in the 18th century, when copyright law and the commodification of literature into property began in good earnest.  Novelist Fanny Burney used them (The Wanderer), [1]  as did several Restoration playwrights who quite rightly feared reprisal from outraged members of their audiences.  People, of course, had been outraged by literary attacks long before this time, and literature has been intertwined with law ever since the ninety year old Sophocles defended himself against his sixty-five year old son’s charge of senility by reading a brilliant chorus from Oedipus at Colonus that he had written just that morning.  Poets have slandered politicians, former lovers, and especially other poets since time immemorial.  But published disclaimers in works of fiction are a relatively recent phenomenon.

Another kind of disclaimer occurred frequently in the early days of the European novel, one that inverts modern usage.  Disclaimers today assert the fictional or imagined nature of the text before the reader.   Here are a few standard disclaimers.

"All characters, names and incidents in this book are entirely fictitious."

                                                            Evelyn Waugh, A Handful of Dust (1934)

"All characters in this book are fictional and any resemblance to persons living or dead is purely coincidental."

                                                            Saul Bellow.  Herzog (1965)

"All characters in this publication are fictitious and any resemblance to real persons, living or dead, is purely coincidental."

                                                            Louise Erdrich.  Love Medicine (1990)

In contrast, early novels often declared themselves to be something other than novels: most commonly in the 18th century they were “histories” (for example, The History of Tom Jones, a Foundling) or biographies (The Life and Opinions of Tristram Shandy, gentleman), or travelogues, or collections of allegedly authentic letters or editions of long-lost manuscripts of a famous or legendary person.  Far from fearing charges of libel, these novelists were at pains to say that their books weren’t novels, weren’t fictions, and that their truthful authenticity should be apparent to the fact-seeking, and morally upright, reader.  Novels, after all, were a suspect genre, suspect not of being libelous so much as being, at best, frivolous, and at worst scandalous and sex-ridden and generally immoral.  So early fiction writers did their upright audiences one better: they fictionalized their fictions into fact, and treated their works more like natural discoveries than created objects.  It seemed safer, ethically and legally, to say that the work had no invention in it.  These novels typically began with the most bold-faced lie of all: the fictionalized title masquerading as fact.  The most fictional quality of Fielding’s Tom Jones is its title.

            By the early 20th century, however, the novel was an established, somewhat more respectable genre, and our conception of fiction had been theorized to the point that its distinction from narratives of philosophy, history, or the newly emerging social sciences, seemed more or less secure.  Fiction was fiction, and fact was fact, and there was an end of it.  It’s also true that Western philosophers from Plato forward had made “fiction” the antonym of “truth,” — in philosopher’s language, they have defined fiction as beginning, logically, from the rule of truth, —  and consigned imaginative writing — i.e., pretty lies — to the philosophical dustbin.  The phrase “it’s only  a novel” expresses it most succinctly.  More reflective readers have understood that “fact,” not “truth,” was the opposite of fiction, but have still maintained the firm border between the real world and the fictive.  The borders between genres, and disciplines, were firmly built and well guarded.

            But, it turns out, those borders are not nearly as secure as we might like.  There are obvious complications.  Recent literary theorists (for example, Stanley Fish) and some philosophers (for example, Richard Rorty), have broken down the distinction, though the law — necessarily, I believe — still maintains it.  Some sub-genres of the novel deliberately challenge fictionality: the so-called “faction” (the deliberate mixing of fiction and reality, as in Robert Coover’s The Public Burning, or Alex Haley’s Roots or E. L. Doctorow’s Ragtime)[2]; or the “historical novel” (for example, War and Peace) which relies on research to establish its world, and frequently offers persuasive corrections to conventional historians; or the “documentary novel” now classified in universities, somewhat comically, as part of “creative non-fiction.”  But even in so-called conventional novels the line between fiction and fact, the imagined and the libelous, is difficult to draw, and literary disclaimers testify in their hilarious variety to this difficulty.  It seems that the more we try to defend the borderline the more permeable it seems to become, and the more fun novelists and even publishers have with them.

So, for your delectation, here are some mind-bending variations from my collection of over a hundred (it’s rather like collecting beer coasters or bottle caps).  My goal is not clarity, but a sort of sublime and informative confusion, and I cite Yale historian Bernard Porter in my defense: “Those who want hard and fast conclusions will be disappointed, but they deserve to be”

II

Again, to round up the usual disclaimers, here’s our garden-variety version from Louise Erdrich.  Love Medicine (1990):  "All characters in this publication are fictitious and any resemblance to real persons, living or dead, is purely coincidental."

There are some small, puzzling things here.  In the midst of three definitive claims — “all,” “any,” “purely” —  "resemblance” is strikingly undefined: what constitutes a libelous resemblance?  Theorists of fiction have argued over that word “resemblance” since Plato, and the fearful complexities they find in it can be of little help to plaintiffs and their lawyers.  When does a fiction become a fiction?  Only when the author says it does?  Or does the amount of resemblance give a standard?  And don’t those “all or nothing“ words raise questions of their own: is there such a thing as a “pure” coincidence or “total fictionality,” a 100% fiction with no “resemblance” to anything?  Does the repetition of those infinite claims — three in one sentence — portray a certain legal insecurity, or is that doubling simply part of the rhetoric of repetition, a desire to cover and recover every possible contingency, that turns up frequently in legal discourse?

A slightly more epigrammatic version in Louise Erdrich’s earlier novel Tracks (1988) — “Nothing in this book is true of anyone dead or alive” — paves the way to the question: in what sense does Erdrich intend “Nothing” and “true?“  Surely Erdrich, who’s very much alive, and her publisher believe that her fiction sheds true light on human experience, or at least on her experience.

2. Next, here are some standard disclaimers with the slightest of loopholes in their airtight legal containers:       

A. “This is a work of fiction.  All names, characters, and incidents, except for certain incidental references, are products of the author’s imagination and do not refer to or portray any actual person.”

                                    Jill Eisenstadt.  From Rockaway.   (1987)

This is our first encounter with the grab-bag category “incidental reference”: who determines what’s “incidental,” and which “references” are covered by this disclaimer?

            B.  Saul Bellow.  Him with his Foot in His Mouth (1985)  "This is a work of fiction.  Names, characters, places and incidents are either the product of the author's imagination or are used fictitiously.  Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental."

            The repetition seems overdone here, even by legal standards; doth Bellow protest too much?  More interestingly, he draws a distinction between "imagination" and “fiction,” apparently reserving the fictive for what he borrows from real life rather than inventing?  So Bellow tries to mark a territory called the "fictitious" which is somehow in between the real and the invented.  But if real characters are employed, any resemblance cannot also be "entirely coincidental.” This also raises another, intriguing point: If characters are invented, can the plots be real?  (NB that Bellow, and most others, don't mention "plot": characters may be libeled, but their stories cannot, since stories have no legal standing.  Yet do character and story separate quite that easily?)

C. A more theoretical standard disclaimer (Lewis Nordan.   Lightning Song: A Novel [1997]): “This is a work of fiction.  While, as in all fiction, the literary perceptions and insights are based on experience, all names, characters, places, and incidents are either products of the author’s imagination or are used fictitiously.  No reference to any real persons is intended or should be inferred.”

            Nordan makes clear that he understands the issues about fictionality and its sources, even if his version doesn’t solve the problems.  In his lengthy author’s note Alan Paton, for Cry, The Beloved Country (1948), puts the issue well: “In these respects [all the typical disclaimers about names, places, and events] therefore the story is not true, but considered as a social record it is the plain and simple truth.”

D. The publisher who speaks for the author: “Publisher’s note.  This is a work of fiction.  Names, characters, places and incidents either are the product of the author’s imagination or are used fictionally, and any resemblance to actual persons, living or dead, events, or locales is entirely coincidental.”  Toni Morrison.   Jazz (1992) 

Morrison’s publisher repeats the ambiguities we have just seen in Bellow’s disclaimer.

3. Let’s move to a whole new category new: The Disclaimer as Self-evidently Fictive.

            A. "All characters and situations in this novel are fictitious and any apparent resemblance between any character and any living person is entirely coincidental."

                                                            Simone de Beauvoir.  The Mandarins.

            But everybody who bought the book knew that the novel was about Albert Camus and Jean-Paul Sartre and Simone herself, and the publishers openly advertised this truth.  So the most fictional thing in The Mandarins is this sentence, which nobody believed, and even knew was deliberately false.

B. The Disclaimer as Boldfaced Lie, from D. M. Thomas’s The White Hotel (1981): “The role played by Freud in this narrative is entirely fictional.  My imagined Freud does, however, abide by the generally known facts of the real Freud’s life, and I have sometimes quoted from his works and letters, passim.  The letters of the prologue, and all the passages relating to psychoanalysis . . .  have no factual basis.”

            In the next ten pages Thomas offers allegedly “fictional” letters from Freud which in fact contain large swatches copied directly out of Freud’s actual correspondence.  He also lifts sentences straight out of Ernest Jones’s biography of Freud.  So Thomas knowingly gives the Lie Direct, not so much out of bravado or overconfidence — the quotes are too many and too obvious — but perhaps because he wants to challenge the fiction/truth dichotomy directly.  The novel ends with an extraordinarily powerful retelling of the Babi Yar holocaust, and speaks the truth for the victims (there was only one survivor of nearly 250,000 people).

            C. The Brassy Disclaimer.   "Several well-known people — journalists mostly — make cameo appearances in these pages, but this is a work of fiction and the usual rules apply.  None of the other characters are real.  None of these events ever happened."

                                                Anonymous. Primary Colors (1995)

The author is erased by a conventional sign, "Anonymous."  So who wrote the disclaimer?  Can an author’s disclaimer be anonymous?  Is “anonymity” what the disclaimer seeks?  Newsweek reporter Joe Klein, the real author, certainly didn’t want the president of the United States to know who had written his book.  Primary Colors, as you probably remember, is an exact and explicit narrative of the Clinton 1992 Presidential campaign from an insider’s point of view.  Factual, verifiable truths abound.  So the disclaimer is an overt lie that the author — if there is an author  — doesn't want to be believed; if the disclaimer is true, then the appeal of the book is largely lost.  In a delightfully mind-twisting way, this disclaimer can only be taken as false if its intent as part of the fiction is true!

            D.  The Subtle Disclaimer (Saul Bellow.  The Dean's December [1982]):  "Although portions of this novel are derived from real events, each character in it is fictional, a composite drawing from several individuals and from imagination.   No reference to any living person is intended or should be inferred.”

            Lovely!  Bellow give us the appearance of honesty, and owns up to a commonly held view about how writers in fact make fictions.  Yet to admit that real people provided the foundations of characters is to admit knowingly that you (Bellow) made non-factual statements about individuals.  So the whole point of having a disclaimer in the first place is subverted; if you really believed this, or at least thought it was a legally defensible position, you wouldn't write a disclaimer!  Further, Bellow tells the audience that they are NOT free to read his book in a certain way, i.e. as a roman a clef (literally “novel with a key”).  So Bellow attempts to limit the interpretive range of his reader by giving them a command that they, being human, can’t help disobeying.

4. The Autobiographical Novel , or  Who’s Stealing from Whom?   

A. This downright Campy Disclaimer needs no interpretation.  It’s from Hungarian Peter Nadas’s huge novel A Book of Memories (1986): “It is my pleasant duty to state that what I have written is not my own memoirs.  I have written a novel, the recollections of several people separated by time, somewhat in the manner of Plutarch’s Parallel Lives.   The memoirists might conceivably all be me, though none of them is.  So the locutions, names, events and situations in the story aren’t real but, rather, products of a novelist’s imagination.  Should anyone recognize someone, or — god forbid! —should any event, name or situation match actual ones, that can only be a fatal [!] coincidence, and in this respect, if in no other, I am compelled to disclaim responsibility.”  

 B. Margaret Atwood. Cat's Eye (1990)   "This is a work of fiction.  Although its form is that of an autobiography, it is not one.   Space and time have been rearranged to suit the convenience of the book, and with the exception of public figures, any resemblance to persons living or dead is coincidental.  The opinions expressed are those of the characters and should not be confused with the author's."

            This is a rather more subtle version of the Simone de Beauvoir disclaimer we looked at earlier.  Atwood's "novel" is patently autobiographical, at least in the circumstance it recreates, but she too wants to limit the range of our interpretation.  We're not allowed, she says, to read it that way — even though she knows that most readers, especially those who know her well, will do just that.   So this injunction is so futile that we can't help reading it as actually asserting what it denies.  It has the effect of authenticating the experience that she's trying to fictionalize.

            Further, are we to believe that these aren’t the opinions of Atwood?   Why else would she write?  Wouldn’t such a belief work against the feminist critique that powerfully fills her book?

C.   Here’s Joyce Carol Oates, from her novel them, which has a lengthy “author’s note” with an 18th flair: I’ll make a few interlinear comments as we go through it.  Note especially how the word “novel” is absent from the first half of the disclaimer, then comes to dominate the second half.

“This is a work of history in fictional form — that is, in personal perspective, which is the only kind of history that exists.  In the years 1962-1967 I taught English at the University of Detroit, which is a school run by Jesuits and attended by several thousand students, many of them commuting students.   It was during this period that I met the ‘Maureen Wendall’ of this narrative.  She had been a student of mine in a night course, and a few years later she wrote to me and we became acquainted.  Her various problems and complexities overwhelmed me, and I became aware of her entire life story, her life as a possibility of a story, perhaps drawn to her by certain similarities between her and me — as she remarks in one of her letters.  My initial feeling about her life was ‘This must be fiction, this can’t all be real!’  My more permanent feeling was, ‘This is the only kind of fiction that is real.’  And so the novel them, which is truly about a specific ‘them,’ and not just a literary technique of pointing to us all, is based mainly upon Maureen’s numerous recollections.   Her remarks, where possible, have been incorporated into the narrative verbatim, and it is to her terrible obsession with her personal history that I owe the voluminous details of this novel. [NB that Oates finally uses the word]  For Maureen, this ‘confession’ had the effect of a kind of psychological therapy, of probably temporary benefit; for me, as a witness, so much material had the effect of temporarily blocking out my own reality, my personal life, and substituting for it the various nightmare adventures of the Wendalls. [So Oates’ “personal perspective” was swallowed up in the horrifying narrative of Maureen; it’s almost as though Maureen needed to publish a disclaimer to protect Oates!]  Their lives pressed upon mine eerily, so that I began to dream about them instead of myself, dreaming and redreaming their lives.  Because their world was so remote from me it entered me with tremendous power, and in a sense the novel wrote itself [as if her novel were more a found object than a made creation].  Certain episodes, however, have been revised after careful research indicated that their context was confused. [So she shaped Maureen’s narrative even as “the novel wrote itself”].   Nothing in the novel has been exaggerated in order to increase the possibility of drama — indeed, the various sordid and shocking events of slum life, detailed in other naturalistic works, have been understated here, mainly because of my fear that too much reality would become unbearable.”   

            A remarkable disclaimer.

D.   One of the best explorations of the fiction/reality border, all twenty-five pages of it, is in Richard Wright’s Native Son.  He shows the dozen roots of Bigger Thomas’ character in African-American experience, from a childhood bully to the angry young man.

5.      The Evasive Disclaimer.

A.   Here again is Joyce Carol Oates.  Wonderland.  Listen carefully.  “Some of the characters in this novel are entirely fictional, a good number of the events are fictional, and all the settings — especially Lockport, New York; Ann Arbor, Michigan; and Toronto, Ontario — are fictional.  Any resemblance to reality is accidental and should be resisted.  

            This disclaimer is cleverly, vague: “some,” “a good number.”  And of course “all the settings” are manifestly real.  Finally, the reader is counseled to “resist,” which, as we’ve seen already, makes resistance all but impossible.

            B. The Evasive Disclaimer #2.  From Vladimir Nabokov, Ada (1969): “With the exception of Mr. and Mrs. Ronald Oranger, a few incidental figures, and some non-American citizens, all the persons mentioned by name in this book are dead.”   The disclaimer is attributed to the “Editor.”

These are remarkable, teasing exceptions: one specific couple, a few incidentals and “Non-Americans.” Everyone else is dead!  But what does “dead” have to do with anything; if they’re all fictional, they never lived . . .

6.   The Pleading Disclaimer.   “This is a first book, and in it the author has written of experience which is now far and lost, but which was once part of the fabric of his life . . . .  This note . . . is addressed principally to those persons whom the writer may have known in the period covered by these pages.  To these persons, he would say that he believes they understand already: that this book was written in innocence and nakedness of spirit, and that the writer’s main concern was to give fullness, life and intensity to the actions and people in the book he was creating.  Now that it is to be published, he would insist that this book is a fiction, and that he meditated no man’s portrait here.”

                                    Thomas Wolfe.  Look Homeward, Angel (1929)

Everyone knows the public outcry of the citizens of Asheville North Carolina when Wolfe’s novel appeared, an outcry that has continued for seventy years: the house in which the novel was set was torched just a few years ago.

7. The Disclaimer and Plagiarism.  

Here we arrive at another legal can of worms: not libel law but property law.  The nuances seem inexhaustible.  If, to begin, a novel is a re-making of an earlier work (say, Jane Smiley’s reworking of King Lear in A Thousand Acres), is that earlier book of fiction now something “real" that must be disclaimed?   In one context the law sees a work as fictive and “entirely” unrelated to the real world, but once it is published as fiction it becomes, in another legal content, as real a document as the Constitution.   Plagiarism suits are especially difficult because of literature's obvious, necessary anchoring in earlier literature.  Indeed, many literary theorists believe that literature begins in other literature, not in descriptions of life.  Here’s how Tom Robbins handled it for paintings/sculptures in Skinny Legs and All (1990): “Some of the works of art described in these pages are fictionalized exaggerations of pieces originally created by Patti Warashina, Fred Bauer, and Norma Rosen.   The author salutes them.”  A more conventional response from Thorton Wilder in The Women of Andros (1930): “The first part of this novel is based upon Andria, a comedy of Terence who in turn based his work upon two Greek plays, now lost to us, by Menander.”  I don’t think Wilder feared a suit from the heirs of Menander; he wanted his audience to know that his work was derivative.  But what if that’s not the case?

B. In a famous dispute in the 1970s, Robert Burda’s novel Clinemark’s Tale was withdrawn by Book of the Month Club and its American publisher, Everest House, because the book used the same plot as Somerset Maugham’s The Painted Veil, only reversing the genders of the main characters.  But Burda’s British publishers, and the Maugham family estate, found nothing objectionable in Burda’s reworking, and the book sold very well in England.  In America, however, it ultimately cost him his tenured position in a university English department.    His book, incidentally, had no disclaimer.  (A simple dedication to Maugham would probably have solved all his problems).  

C. Here’s an example of a first paragraph as disclaimer, with plagiarism as its comic subtext.  You remember that Tolstoy’s Anna Karenina begins with the famous sentence, “All happy families are alike, but an unhappy family is unhappy after its own fashion.”  Here’s the opening of Vladimir Nabokov’s Ada: "'All happy families are more or less dissimilar; all unhappy ones are more or less alike,' says a great Russian writer in the beginning of a famous novel (Anna Arkadievitch Karenina, transfigured into English by R.G. Stonelower, Mount Tabor Ltd., 1880).   That pronouncement has little if any relation to the story being unfolded now, a family chronicle, the first part of which is, perhaps, closer to another Tolstoy work, Detstvo i Otrochestvo (Childhood and Fatherland, Pontius Press, 1858)."  Is this open borrowing and disclaimer inside or outside the Kingdom of Fiction??

D. A related, more assertive, disclaimer of sources comes from Peter Ackroyd for his novel English Music (1992).  The book presents the life of a young psychic who enters the imaginative worlds of a number of his country’s greatest visionaries: “The scholarly reader will soon realize that I have appropriated passages from Thomas Browne, Thomas Malory, William Hogarth, Thomas Morley, Lewis Carroll, Samuel Johnson, Daniel DeFoe and many other English writers; the alert reader will understand why I have done so.”

In other words, if you think I’m plagiarizing you’re a dull reader who doesn’t get the book at all.  The best defense is a witty attack.

E. A whole new category of plagiarism: the Buried or Unwritten Disclaimer, in which someone poses as someone else.  There are scores of examples of this, but my favorites include the white male Australian, 47 year old Leon Karmen, who wrote a memoir of a young Aboriginal woman named Wanda (My Own Sweet Time, 1995).  The novel won the Dobbie award for a first novel by a woman, and became a set text in Australian high schools.  When the "fraud" was discovered, the book was pulped and Karmen excoriated — yet the text was still the same text.  So even though everyone agreed that this book "gave insight into what it meant to be a member of the 'stolen generation' of Aboriginal children,” it was pulped.

            Another Australian, Paul Radley, published several widely acclaimed novels under his name, only to confess that his uncle Jack had actually written them.   They privately agreed to have Paul bring them out on the theory that a young first novelist sold much better than a late middle age one.   They were right.  

Well-known detective story writer Dick Francis and his wife offer yet another entertaining example.  Newspapers have repeatedly taken up the story in the past ten years: how much of Francis’s novels did his wife in fact write?  Quite a bit, it turns out.  But if she was happy with the arrangement and didn’t want credit for it, is there a legal question, or just one of reputation?  Ditto D. H. Lawrence, who relied on a succession of women, especially his wife Frieda, to give voice to his female characters.

8. Next Category: The Polite Disclaimer. “No event or incident in this story is intended to relate, or represent, any actual incident or event, and the names used are the invention of the author, who apologises should he have inadvertently used the name of any actual person.” Alan Paton.  Too Late the Phalarope (1953). 

If I’m nice, maybe you won’t sue me. 

9. The Disclaimer as Reversal:

A. From Nicholson Baker, The Fermata (1994): “The fictional product names in this book are the property of the author and may not be used as names for real products or services without his prior written permission,”  

Brilliant!  Baker parodies legal discourse, and claims copyright against encroaching manufacturers for the invented names in his fiction.  Is this fiction or non-fiction?  

B. Here’s another example of the same wit:  The product-specific disclaimer from Kurt Vonnegut’s novel Breakfast of Champions (1973).  “The expression ‘Breakfast of Champions’ is a registered trademark of General Mills, Inc. for use on a breakfast cereal product.  The use of the identical expression as the title for this book is not intended to indicate an association with or sponsorship by General Mills, nor is it intended to disparage their fine products.”

            What a great touch: Wheaties is left unnamed in a canny parody of legalese, and “an association with or sponsorship by GM” is “not intended” by the author.  Such an official association is, of course, the last thing Vonnegut would have wanted for his book, but he does rely on the unofficial, and unavoidable, association in the mind of the reader to pillory General Mills after all.  His tongue-in-cheek praise at the end makes that clear:  “nor is it intended to disparage any of their fine products.”  Wheaties never had it so good.  

10.   The witty, we-all-know-what-this-is-all-about Disclaimer: Geoffrey Wolff.  The Final Club (1990): “While the campus of Princeton is Princeton’s Princeton, while some of her legendary personages are invoked, while the institution of Bicker is too perversely odd for my fancy to have fabricated — I have taken liberties.  My entire purpose has been to take liberties: I’ve staffed my Princeton’s faculty, rigged the outcome of athletic contests, and taken charge of the office of Admissions, welcoming an imagined student body, excluding from Princeton those substantial souls who believed themselves to be my characters’ college-mates.  Those who move through The Final Club, wherever in the world they may travel, are inventions, believe me.”

11. The Quip as Disclaimer: “All the characters in this work are fictional, as is much of the science.”

                                    John Cheever.  The Wapshot Scandal (1964) Curiously,  The Wapshot Chronicle, its more famous predecessor, has no disclaimer.

12. The Theological Disclaimer: from Evelyn Waugh, who is a master of disclaimer writing: Brideshead Revisited (1945):

"I am not I

             thou are not he or she

             they are not they."

The "I" vs. "author" distinction is made as succinctly, and gnomically, as possible: just four words.  Waugh then repeats the condensation for individual readers (“thou”), and then for those the reader might imagine are being copied.  A theological disclaimer fits Waugh’s very Catholic novel, and suggests endless theological niceties: what is the legal, fictional, or philosophical status of those claims for "identity,” of those "am’s" and "are’s")?

So Waugh wittily reassures — and fools — both the general reader and any person who thinks he might be a victim of Waugh's satire.

            In truth, Waugh’s a great master of the disclaimer genre: here’s the one for his lone Southern California novel, The Loved One: An Anglo-American Tragedy (1948), set in an easily recognizable Forest Lawn.  It’s entitled “A Warning:” “This is a purely fanciful tale, a little nightmare produced by the unaccustomed high living of a brief visit to Hollywood.  Readers whose pleasure in fiction derives from identifying the characters and scenes with real people and real places will be disappointed.  If in the vast variety of life in America there is anyone at all like any of the characters I have invented, I can only remind that person that we never met, and assure him or her that, had we done so, I would not have attempted to portray a living individual in a book where all the incidents are entirely imaginary.  

            As I have said, this is a nightmare and in parts, perhaps, somewhat gruesome.  The squeamish should return their copies to the library or the bookstore unread.”

13. The Longest Disclaimer.   In my reading, that’s easy: John Barth’s fourth novel, Giles Goat-Boy (1966), contains a “Publisher’s Disclaimer” and a companion “Cover-Letter to the Editors and Publisher” that together fill twenty-two pages of close-set type (I could give a whole paper just on this example).  The “Publisher’s Disclaimer” begins by declaring the book “so potentially actionable as to make inadequate the publisher’s conventional disclaimer,” and goes on to report that two members of the editorial staff — one the son of the editor himself — have already resigned over the book’s acceptance.    It includes reports on the novel from four different editors, one of whom declares it a “bad book, a wicked book that ought not — I will say must not — be published.”  (ix)  He declares the author, apparently a college professor,  to be an “ineffectual megalomaniac: a crank at best, very possibly a psychopath,” and warns his dean and department chair that they have a corrupter of the young amongst them.  He concludes, “Would the present editor-in-chief, I wonder, permit his own daughter, to be taught by such a man?”  And that’s just the beginning.

            Barth, in other words, pre-empts legal challenge by anticipating, and fictionalizing, any possible charges in disarming hyperbole.

14. Then there’s a whole group of Aggressive Disclaimers, most of which are very funny.

             A.   David Foster Wallace.  Infinite Jest (1996) [and right on the data page].  "Any apparent similarity to real persons is not intended by the author and is either a coincidence or a product of your own troubled imagination.  Where the names of real places, corporations, institutions and public figures are projected onto made-up stuff, they are intended to denote only made-up stuff, not anything presently real.”

 “Presently real” is a nice touch.  And how’s your “troubled imagination” doing?

B.   John Steinbeck.  The Winter of our Discontent (1961) “Readers seeking to identify the fictional people and places here described would do better to inspect their own communities and search their own hearts, for this book is about a large part of America today.”

            C. Christa Wolf.  Kindheitsmuster (1976).  “All characters in this book are the invention of the narrator.  None is identical with any person living or dead.  Neither do any of the described episodes coincide with actual events.
            Anyone believing that he detects a similarity between a character in the narrative and either himself or anyone else should consider the strange lack of individuality in the behavior of many contemporaries.  Generally recognizable behavior patterns should be blamed on circumstances.”
            Incidentally, I found only one disclaimer in a work for fiction translated from another language and published in England or America: it’s Wolf (several of her books).  Could it be because she was East German and a socialist?
            D. “For years I have with reluctant heart withheld from publication this already completed book: my obligation to those still living outweighed my obligation to the dead.  But now that State Security has seized the book anyway, I have no alternative but to publish it immediately.

            In this book there are no fictitious persons, nor fictitious events.   People and places are named with their own names.  If they are identified by initials instead of names, it is for personal considerations.  If they are not named at all, it is only because human memory has failed to preserve their names.  But it all took place just as it is here described.”

                                                            Alexandr Solzhenitsyn, The Gulag Archipelago (1973).  Solzhenitsyn subtitles his text “An Experiment in Literary Investigation,” thus locating his book in a liminal space between fiction and history.

E.   And my favorite: Kevin Jackson.  Invisible Forms: A guide to literary curiosities. “All the usual lapses of taste, intelligence and scholarship which have survived into the final draft are, of course, the fault of Society.”

F. Somerset Maugham is a sub-genre all by himself; I could also do a separate paper on his disclaimers.  Here ‘s another one (from The Summing Up) by a writer who relished controversy: "The writer does not copy his originals; he takes what he wants from them: a few traits that have caught his attention, a turn of mind that has fired his imagination, and therefrom constructs a character . . . .   The whole business would be plain sailing if it were not for the susceptibilities of the persons who serve as models for the author's characters.  So colossal is human egotism that people who have met an author are constantly on the lookout for portraits of themselves in his works and if they can persuade themselves that such-and-such a character is drawn from them they are bitterly affronted if it is drawn with any imperfections."

            This is the disclaimer as pre-emptive strike!  Indeed, in some ways this is an anti-disclaimer: Maugham proclaims that he DOES takes portions from his "originals" and then derides persons who criticize him for it.  

            G.  From Cakes and Ale (1930).  The 1950 edition contained an eight page disclaimer I can only sample: “When Cakes and Ale was first published a lot of fuss was made in the papers because in the character I had called Edward Driffield I was supposed to have had Thomas Hardy in mind [NB the wording: “in mind”]  It was in vain that I denied it.  It was in vain that I pointed out to the journalists who came to question me how different the life of my hero was from that of Thomas Hardy.  [Revealingly, Maugham now writes about his character in the past tense, as though he, like Hardy, were dead.]  It is true that both were of peasant stock, that they had both written novels of life in the English country side, that both had been twice married and that both in their old age had achieved fame.   But that was the beginning and then end of the resemblance.  I met Thomas Hardy but once . . . at a dinner party . . . and … over brandy and coffee . . . we talked together for a while.  I new saw him again.  I knew neither of his wives [and Maugham goes on to offer a distinction between Dreffield’s first wife and Hardy’s].  I never visited his house.  In fact, I knew no more of him that what I had lernt from his fictional works.”  Maugham cheekily cites fictional knowledge as a defense, despite the difficulties; how did he know, for example, that Hardy was “of peasant stock?”  He goes on to speculate about the amusement that admirers’ worship may well give to old, famous English authors, and for contrast recounts an anecdote of watching German playwright Gerhard Hauptmann hold court among a circle of admirers who addressed him as if he were royalty.   Then Maugham “confesses” the following: “In point of fact [!] I founded Edward Driffield on an obscure writer who settled with his wife and children in the small town of Whitstable, of which my uncle and guardian was vicar.  I do not remember his name [!].  I don’t think he ever amounted to anything and he must long since be dead.  He was the first author I had ever met, and though my uncle strongly disapproved of my association with him, I used to slip away to see him whenever I had the chance.  His conversation thrilled me [and Maugham forgot his name?].  It was a shock to me and a satisfaction to my uncle when one day he vanished from the town with all his debts unpaid..”

            The next paragraph takes up a letter from Hugh Walpole, who was bitterly hurt by the obvious characterization in him in the novel — and SM immediately admits it, bashing Walpole even further as a compulsive fame-seeker and sycophant with critics.  SM continues: “No author can create a character out of nothing.  He must have a model to give him a starting point, but then his imagination goes to work, he builds him up, adding a trait here, a trait there, which his model does not possess, and when he is finished with him the complete character he presents to the reader has little of the person who had offered the first suggestion.  It is only thus that the novelist can give his characters the intensity, the reality, which makes them not only plausible, but convincing.  I had no wish to hurt Hugh Walpole’s feelings. . .   he was easy to like, but difficult to respect.  [If I read the you section in question, you would disagree].   When I devised the character of  Alroy Kear I did all I could to cover my tracks [having just argued that there are no tracks that need be covered] . . . . and moreover that above all I had put in Alroy Kear a great deal of myself.  I have never been unaware of my own defects and I have never regarded them with complacency.  We are all exhibitionists, we writers” [the very thing for which he lambasted Hauptmann].

And so it goes: Maugham’s denials unravel themselves because he cannot help expressing his malice.  His biographer Ted Hughes (Maugham: A Biography, pp. 30-42) describes how he gloated over his parodies and satires in letters.  So his denials are not only unconvincing, they are untrue.

15. The Aggressive/destructive disclaimer.  From Charles Maturin.  Melmoth the Wanderer (1821)  “The hint of this Romance (or Tale) was taken from a passage in one of my Sermons, which (as it is to be presumed that very few have read) I shall here take the liberty to quote. . . .

            For the rest of the Romance, there are some parts of it which I have borrowed from real life.

            The story of John Sandal and Elinor Mortimer is founded in fact.

            The original from which the Wife of Walberg is imperfectly sketched is a living woman, and long may she live. [He refers to his own wife]

            I cannot again appear before the public in so unseemly a character as that of a writer of romances, without regretting the necessity that compels me to do it.   Did my profession [clergyman] furnish me with the means of subsistence, I should hold myself culpable indeed in having recourse to any other, but — am I allowed the choice?

16. The Openly Fictionalized Disclaimer.  Ron Carlson (run in Harpers, n.d.: Carlson’s collection of stories, The Hotel Eden, is pub. by Norton).

            “This is a work of fiction, and any resemblance to actual events, locale, or persons, living or dead, is merely coincidental, except for the restaurant called the Wild Chicken, which was a real place actually called the Blue Bird, a drive-in fast-food joint I always drove past on my way to Debbie DeLucca’s house.  I loved the Blue Bird, all the lights on late at night, because I knew I was going to get a cheeseburger or the vanilla shake, so many of which I enjoyed with Debbie DeLucca herself, or alone if I was driving back late from her house wrecked from all the couch time with her.  The couch time I put in the book was real too, as well as the couch, a kind of overstuffed nappy sofa with Debbie’s mother’s big red and blue afghan on the back, a blanket that wanted to get caught in the gears and dragged into the evening’s activities quietly and inextricably, a beautiful bold coverlet with a repeated pattern of red geese against a blue sky.  Of course the Blue Bird, which I have called the Wild Chicken, and where I stood so many midnights under the fluorescent lights picking red and blue threads out of my hair waiting for a cheeseburger and a vanilla shake, is now a Custom Tile Outlet, a place you can go if you want your fireplace to look like the one in any Hilton.

            I should also add here that Debbie DeLucca’s house is based on her real house, a green-sided bungalow on the corner of Concord St. and Eighth South that had a long shallow porch where I stood so many nights whispering with Debbie, giving Mrs. Eisenhour across the street a little show, I suppose, as Debbie and I would stand some nights for an hour and some nights two, saying good-bye and I love you and I can’t believe I’ve met someone like you and that was dreamy in there on the couch I love you so much, and other direct dialogue that I’ve used in the text absolutely verbatim, probably the easiest things of all the things in the book to write because everything we said is alive within my head after all these years, things actually uttered on the chilly fall nights there on Concord St. and Eighth South, as we twisted closer, so lost some nights that time itself dissolved or collapsed, disappeared anyway, a phenomenon I describe better than that in the book, and a phenomenon that has not come around for me since.”

III

Here’s a brief catalog of controversial novels that do NOT have disclaimers:

      The Godfather.

      Ulysses.

      Lady Chatterly’s Lover.

      Tropic of Cancer and Tropic of Capricorn : in fact no Henry Miller novel has a disclaimer.

      Philip Roth’s Our Gang (“Tricky Dixon”).

      Pauline Reag.  The Story of O.

      Anais Nin’s little collections of erotica, or Henry and June.

      Early gay/lesbian novels: Radclyffe Hall (who was convicted of public indecency for The Well of Loneliness [1928]), John Rechy (City of Night [1963]), Gordon Merrick (The Lord Won’t Mind [1970] or, more recently, Alan Hollinghurst (The Swimming-Pool Library [1988]).

      Several of Jerzy Kosinski’s novels have standard disclaimers, but the most controversial — The Painted Bird — does not.

      Few, if any, short story collections.  I only found two after investigating sixty or so: William Trevor’s After Rain, and Isabel Allende’s The Stories of Eva Luna.  This makes little sense: surely short stories can be just as libelous as novels.

      Proust’s enormous Remembrance of Things Past, openly based on a number of his family and contemporaries.

      None of Robert Coover, including The Public Burning on the Rosenberg trial and executions: Nixon the dominant narrator.  Dedicated to William O. Douglas. The book was the subject of a lengthy libel trial.

      Anthony Powell’s autobiographical series of novels, Dance to the Music of Time.

      Salmon Rushdie’s novels, including the second ed. of Satanic Verses.

      As noted above, I found only one disclaimer in a work for fiction translated from another language and published in England or America: in several books of Christa Wolf.

      No Gore Vidal novel has a disclaimer.

      Truman Capote’s non-fiction novel In Cold Blood and his aggressive roman a clef, Answered Prayers.

      Only one John le Carr novel has a disclaimer: not The Perfect Spy with its devastating portrait of his father, but his most recent book The Constant Gardener, which attacks international pharmaceutical companies.

      Norman Mailer: only one, and not in the books where you might expect one (Ancient Evenings).

      Donna Tartt’s The Secret History, even though it offers a photographic copy of Bennington College and a damning portrait of a specific professor.

      Earthly Powers, despite the devastating parody of Maugham: a fitting omission!

      But yes, Lolita does have a standard disclaimer: (“All names, characters and events in this book are fictional and any resemblance to real persons which may seem to exist is purely coincidental.”)

Virtually no paperback reprints, even of scandalous books, have disclaimers.  In the cheapest paperback editions — Signet, Bantam, and the like — I found only one: in James Bond!  Only two of the Bond books had disclaimers.  One was conventional (Goldfinger), but From Russia , with Love (1957) offered a lovely ambiguity: “Not that it matters, but a great deal of the background to this story is accurate.”  Details about SMERSH follows.  “Not that it matters. . . . !”  

IV

           The Law

Here’s a thumbnail, and no doubt amateurish, sketch of the evolution of libel law and its application to literary works.  (In this section I draw on several sources, notably Isidore Silver’s essay “Libel, the “Higher Truths” of Art, and the First Amendment [Un. of Penn Law Review, v. 126:1064-1098]).[3]   Libel is defined in the Civil Code 45 as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.”   Since libel law had traditionally been a law of accretion — decisions piled on decisions — rather than of substantive change, procedure has played an especially important role.  As Justice Frankfurter wrote in McNabb v. United States (1943), “The history of liberty has largely been the history of observance of procedural safeguards.”[4]  

Here’s a quick overview of the issues.  In American jurisprudence, from early in our history, juries were given authority to determine whether a particular utterance was libelous.  The famous early 18th century Zenger case (involving alleged libel against the sitting governor of New York) was the landmark, though it was largely ignored until the 19th century. Next, the “defense of truth” against libel was recognized in the late 18th century (even the Sedition Act of 1798 contained a clause recognizing its legitimacy).  Third, the common law precedent of offering limited protection of factual misrepresentation culminated in our central case, New York Times v. Sullivan[5], in which the court first gave state tort law a thorough constitutional critique, and created a “constitutional privilege” which permitted even the negligent misstatement of defamatory facts on matters of public interest.  (In concurring opinions Justices Black, Douglas and Goldberg even argued for immunity for libel defendants against all claims by public figures.)[6]  

In succeeding cases the court continued to seek a balance between the rights of free speech and press against the individual’s interest in reputation.  For example, Gertz v. Robert Welsh, Inc.[7] (1974) determined that damages can no longer be presumed in a libel suit premised on less than the Sullivan standard of liability for “malice.”  “Some showing of fault on the part of a defendant is a predicate to any recovery for defamation.”  Sullivan seemed to argue that, if the text at issue was clearly understood to be a work of creative fiction, then it could be protected.  Here’s the same principle in University of Notre Dame Du Lac v. 20th Century Fox Film Corporation, “Is there any basis for any inference on the part of rational readers or viewers that the antics engaging their attention are anything more than fiction . . . ?”[8]  One commentator concluded that “the invented action of a novel is nothing more than the author’s opinion of what a character would do under certain circumstances.  So long as the reader is warned that the matter is one of opinion, traditional defenses such as ‘fair comment’ should be available regardless of the particular genre.” (Silver, 1069)  To cite Fisher v. Washington Post Co., “Criticism in the art world may be based on intangibles such as experience, taste and feeling.”[9]   Generally, courts have exempted “epithets, satire, parody, hyperbole,” and burlesque from the “ridicule” clause in libel law, thus giving novelists — and humorists — a great deal of freedom.[10]

            All this is complicated, of course, by the fact that libel, and libel law, are not fixed categories but shift according to changes in the country’s political and moral climate.  Predictably, the 1960’s — Sullivan’s era — gave the greater weight to the rights of the defendant, and that had been modified in succeeding eras.

            To my outsider’s eye there is a curious aesthetic at play in most libel trials of fictions: brief passages are read and then attacked or defended by each side’s experts.  This makes it very hard for juries to consider the overall effect of the book apart from the smallish passages that seem most libelous.  Courts frequently instruct juries to see the novel as a whole (see, for example, Bindrim v. Mitchell below), but the way that evidence is presented in actual cases makes that difficult.  The obscenity trial of Ulysses is a famous instance, where sex scenes read out of context were somehow to be judged independent of the fictional world they inhabit — almost, indeed, as if they were laboratory tissue specimens that revealed the nature of the creature from which they come.

            Having said all this, novels do not enjoy automatic immunity from libel law.  In Corrigan v. Bobbs-Merrill Co. (1920),[11] the justices wrote that “Reputations may not be traduced with impunity [even] under the literary form of a work of fiction . . . “[12]  The roman a clef creates the most obvious case, and the courts have generally tried to determine the intent of the author: has he or she deliberately set out to defame a person in fiction (and is reasonably understood to have so intended), or has the author inadvertently chosen the name solely for the purpose of creating a fictional character?  The classic cases are, in England, E. Hulton Co. v. Jones[13]and its American counterpart, Kerby v. Hal Roach Studios,[14] in which the case turned on “the public’s reasonably understanding” the author’s intent.  The plaintiff won because even though the fictional character differed in important respects from Artemus Jones, its real life model, the court found that people who knew the plaintiff — but did not know him well — might have reasonably believed that he was the subject of the piece.  In E. Hulton v. Jones the publisher did not make it explicitly clear that the work was a work of fiction.   My understanding is that the 20th century’s more widespread use of literary disclaimers dates from this case (1909).   

Generally, then, it is true that disclaimers cannot protect against a determination that a defamation was deliberate.  But it has become harder and harder in 20th century American law to prove such intent.  The reasons are easy to see: “intent” is never a simple matter, since writers typically develop characters out of several models, may intend one thing when they begin a portrait and quite another when they finish it (is intention prolonged or punctual, a singularity?).  Further, they may interpose narrators between themselves and the allegedly defamatory character.  Finally, intention always requires interpretation: a writer’s diary entry stating a malicious intent, for example, itself requires interpretation (is this the anger of a single day? is there a pattern?)

            There are, however, some interesting exceptions, and among a number of relevant cases I’ll linger over one that, if I read aright, has modified Sullivan somewhat in favor of the plaintiffs: Bindrum v. Mitchell (1979).[15]  In this case a psychologist sued a novelist who portrayed him a negative light.  The record indicated that the plaintiff used a nude marathon group therapy technique to help people shed their psychological inhibitions.  The defendant enrolled in the class after she signed an agreement saying that she would not reveal what happened in the sessions.  But two months after leaving the group she signed a contract with a publisher, received an advance, and subsequently published an account of the nude marathon that cast the plaintiff in a very negative light: she gave him obscene, unprofessional language, and made him seem an exploiter of his patients rather than a therapist.  The court held that there was “actual malice” in the defendant’s novel, that is, that it was made with knowledge that it was false or with reckless disregard of whether it was false or not.   The weight of the opinion fell not on intention exactly, but its kindred mental state, attitude.   “Reckless disregard is not measured by whether a reasonably prudent man would have investigated before publishing.  There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.[16]  Thus, what constitutes actual malice focuses is the defendant’s attitude toward the truth or falsity of the material published, and reckless disregard of the truth or falsity cannot be fully encompassed by one infallible definition but its outer limit must be marked by a case-by-case adjudication.”  

The court argued, in addition, that actual malice by itself was not enough, since libel cannot be predicated on an opinion.  The publication must contain a false statement of fact (Gegory v. McDonnell Douglas Corp. [1976]).[17]  The place of “fact” in fictive discourse is notoriously tricky, and I admit to some confusion when the court cited Greenbelt Pub. Assn. v. Bresler (1970)[18] in support of its opinion to the effect that a scurrilous term if used “figuratively” did not constitute libel.  The defendant argued that the fact that the book was labeled a “novel” barred any claim to factual truth, but the court countered with a benchmark used in other cases: “whether or not a reasonable person, reading the book would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described.”[19][19]  Courts persist, understandably if a little naively, in insisting on the determinedly non-fictional “actual fact” as the standard of conviction. Thus Blatty v. New York Times takes up the “false light” requirement.[20]   In that case the paper was sued because it failed to include the plaintiff’s novel in its list of best sellers.  The court held that although the “of and concerning” requirement — which does not require proof of intent or negligence[21]— was established for a defamation action, the requirement should apply to all claims whose “gravamen is the alleged injurious falsehood of a statement.”  Thus a “seen in false light” plaintiff must show that the publication that allegedly placed her in a false light actually identifies her.  To cite a related case, “the description of the fictional character must be so closely akin to the real person claiming to  be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two.”[22]  At the same time, to establish “of and concerning,” a defamatory statement need not refer to a plaintiff by name; it is sufficient if a person is identified by the description or circumstance (Church of Scientology v. Flynn[23] and DiGiorgio Fruit Corp. v. AFL-CIO[24].  

The “of and concerning” rule made life miserable for Joseph Heller, as his disclaimer for Good as Gold (1979) shows:

“The author is at his wits’ end how to name the two ladies in such a way as to avoid making people angry with him, as they were in the past.  To call them by a fictitious name is dangerous: whatever name you think of, there’s sure to be in some corner of our empire, seeing how vast it is, someone of the same name who is quite certain to become terribly angry and declare that the author has deliberately paid a secret visit to his town in order to find out what he is like. . . .   For nowadays people of all ranks and classes in our country are so sensitive that they think everything in a book refers to them personally. . . .  It is enough to say that in a certain town there is a stupid man and it is already interpreted as a personal reference to someone.”

Generally speaking, the discourse of law maintains the position — the fiction? — that fact and fiction may be readily distinguished.  Yet there’s a paradox lurking in “actual malice” cases, one that seems to unravel the perhaps necessary distinction upon which that law rests.  Since fictional works are, in legal argument, by definition false, and since actual malice requires the falsehood of the allegations or descriptions, the more the author knows that his work is “fictional” the more the work can be held to be actionable (i.e. based upon the inability to assert truth as a defense).

V

Finally, I’ll leave you not with answers — I think more highly of you than that — but with a two more ideas, and a disclaimer of my own.  

What the law and literary criticism share, of course, is the necessity of interpretation, and the necessary assumption of authority.  Part of the law’s culturally sanctioned authority resides in its language: redundantly assertive, universal, so overdetermined (if not always so clear) as to require no interpretation.  Yet isn’t this rhetoric, this set of tropes, part of the bootstrap operation by which the law creates its own authority?  It hides the law’s other, equally obvious rhetorical and figurative traditions: those of historical development, of reinterpretation in different social circumstances, of evolution.  All these things can, in the particular moment of a particular legal decision, seem to undermine authority, or reduce the law simply to the expressions of those who happen to be in power.  There’s a parallel dilemma in the practice of science as opposed to the history and philosophy of science.  A working biologist may be well aware that her practices have historical roots, and that her rhetorics of experiment, hypothesis, proof and fact are themselves social constructions that depend on debatable epistemologies.  But she must function in her actual scientific work as though these truths are false, or at least irrelevant.  Otherwise she could do no science.  Just so, there is no privileged position in law or criticism that lets one determine once and for all what is fictional and what is not.  Hundreds of books in the past thirty years have shown how philosophy, history, economics, even biology all depend on patterns of narrative, structures of storytelling, that inevitably shape the conclusions they draw.  It follows from this that reference to the world is not so much a property of literary works as a function given to them by interpretation.  The interpretations put on those fictions by the law may seem to have more important real-life consequences than those of literary critics, who frankly can only slow book sales or fail people in courses, not send them to jail.  But because our lives are so constructed by received narratives — truth claiming, yet constructed as fictions are constructed — our ability to interpret fictions well connects directly to our self-knowledge about our own Preferred Stories.  The art of disclaiming, of setting aside full interest or investment in our convictions, may not only protect us from suit but make us  more liberal persons.  

Our last disclaimer.  “This talk was not designed to make you — even a little — suspicious about the rhetoric of law.  Nor did it intend to dissolve the time-honored boundaries between fiction and fact.  The author affirms that fact and fiction are fully and completely and entirely separate modes, and that the close readings of various published disclaimers contained herein are themselves only and nothing but fiction, with only coincidental relationship to real legal and historical truths.  All the usual lapses of taste, intelligence and scholarship which have survived into this final draft are, of course, the fault of Society.”


Summary

At first glance, literary disclaimers form part of the anonymous legal apparatus that typically accompanies the publication of a novel: copyrights, permissions, and the like.  Designed to protect the novelist and publisher from charges of libel, disclaimers insist, often redundantly, on fiction’s total independence from the world of fact, and from disciplines such as history, biography, journalism or law itself which organize those facts into narrative.  But on second glance disclaimers can be shown to occupy an unstable border between the fictive and the real.  They may proclaim what the reader knows to be false — "All characters, names and incidents in this book are entirely fictitious" — or they may disguise the direct imitation of the real world rather than denying it.  In collecting more than a hundred disclaimers from mostly 20th century fiction, I found an increasingly elaborate, even parodic use of them by publishers and writers.  The paper presents a taxonomy of these disclaimers, designed to show their increasingly baroque — and entertaining — elaborations.  A brief summary of libel law cases shows how the courts have struggled with these rhetorical ambiguities, and with the theories of fiction that enable them.   In sum, the essay queries the firmness of the fact-fiction border, and suggests that disclaimers regularly transgress the allegedly clear-cut barriers between the discourses of law, history, and fiction.


Biography

Bill McDonald grew up in Glendale, near the other end of our lovely local mountains.  Both his parents and most of his relatives were teachers, and he was not a rebellious child.  He earned his B.A. at Colgate in philosophy and religion in 1961, then returned to Claremont for his doctoral work in religion and the arts.  This interdisciplinary training allowed him to land a job in a Midwest English depart, where he, his wife Dolores and three boys spent four years before returning to California in 1969 to join the U of R’s new, innovative Johnston College.  Thirty-two years later he’s now Professor of English and the Hunsaker Professor of Teaching at Redlands, and divides his time between the English department and the renamed Johnston Center for Integrative Studies.  It’s rare in education to have the chance to build a new college, and the Johnston program remains at the center of his work at the University.   He’s co-authored a book on the College’s history, and in 1999 brought out a book on the German Nobel prize winning novelist Thomas Mann.  Two unpublished detective novels gather dust in an office drawer.  His other interests include British and Irish modernism, the history of the novel, literary theory, the ancient Greeks, the ”History of Love,” roses, zinfandel, opera, the Rams (since 1949), and staying in touch with many former students from his (to date) thirty-six year teaching career.  He also claims to be the adopted son of Fritz Bromberger.


Footnotes

[1] “Such, therefore, — if any such there be, — who expect to find here materials for political contro-vercy; or fresh food for national animosity; must turn elsewhere their disappointed eyes: for here, they will simply meet, what the Author has thrice sought to present to them already, a composition upon general life, manners and characters; without any species of personality, either in the form of foreign influence, or of national partiality.  I have felt, indeed, no disposition, — I ought rather, perhaps, to say talent, — for venturing upon the stormy seas of politics; whose waves, forever either receding or encroaching, with difficulty can be stemmed, and never can be trusted.”

[2] The novel of “faction” may be defined as one that adheres fairly closely to historical fact as a foundation fort the psychological speculation about — or “mythologizing” of — the real persons and events it describes.

[3] Other sources include my daughter-in-law, and excellent lawyer, Debra Gervais.

[4] 318 U.S. 332, 347 (1943).

[5] 376 U.S. 254 (1964).

[6] 376 U.S. 254, 296 (1964)  (Black, J., concurring, joined by Douglas, J.); id. 298 (Goldberg, J. concurring).

[7] 418 U.S. 323 (1974).  Cf. also Time, Inc v Firestone, 424 U.S. 448, 460-61 (1976), approving damages for personal humiliation and mental anguish at suit of non-public figures.  Silver observes that “While Sullivan was premised upon a preference for the right to know over common law libel, Firestone found a balance between the public’s interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances. . .”  424 U.S. at 456  (1072n).

[8] 22 App Div. 2d 452, 455, 256 N.Y.S.2d 3201, 304, aff’d 15 N.Y.2d 940, 207 N.E.2d 508 (1965).

[9] 212 A.2d 335, 338 (D.C. Ct. App. 1965).

[10] Briarcliff Lodge Hotel v. Citizen-Sentinel Pub., 260 N.Y. 106, 183 N.E. 193 (1932); Cohen v. New York Herald Tribune, 63 Misc. 2d 87, 310 N.Y.S. 2d 709 (Sup. Ct. Kings County. 1970); Silberman v. Georges, 91 A.D.2d 520, 4456 N.Y.S.2d 395, 8 media L. rep. 2647 (1st Dep’t 1982); and especially Hobbs v. Imus, 266 A.D.2d 36 698 N.Y.S.2d 25 (1st Dep’t 1999), where “crude and hyperbolic comments are found to be non-actionable statements of opinion.”  In Milkovich v. Lorain Journal Co. the Court reiterated that certain types of speech were protected — rhetorical hyperbole, vigorous epithets, imaginative expressions [whatever those are!] — because they cannot reasonably be interpreted as stating actual facts.  (497 U.S. 1, 17 Media L. rep. (BNA) 2009 [1990]).   The most eloquent defense of humor’s legality that I’ve come across appears in Salomone v. Macmillan Pub. Co.:   “Is there a recognized exception from the laws of libel when words otherwise defamatory are uttered in a humorous context?  Of course, common sense tells us there must be.  Humor takes many forms — sheer nonsense, biting satire, practical jokes, puns (clever and otherwise), one-liners, ethnic jokes, incongruities and rollicking parodies, among others.  Laughter can soften the blows dealt by a cruel world, or can sharpen the cutting edge of truth.  Without humor — the ability to recognize the ridiculous in any situation, there can be no perspective.  Humor is a protected form of free speech, just as much to be given full scope, under appropriate circumstances, as the political speech, the journalistic expos, or the religious tract."”  97 Misc.  2d 346, 349-50, 411 N.Y.S.2d 105, 108, 4 Media L. rep. (BNA) 11710 (N.Y., County 1978).

[11] 228 N.Y. 58, 65, 1216 N.E. 260, 262 (1920). In this case the court determined that a so-called “sensational novel “ portrayal of a character named “Cornigan.” an “associate of low and depraved characters” was actionable even though defendant “was unaware of . . .  [plaintiff’s] existence or that it was written ‘of and concerning’ any existing person.”  (Id. at 62, 63, 126 N.E. at 262.)  This extreme view has not prevailed: see Gertz.

[12] Silver cites several interesting movie and TV libel trials in which plaintiffs won damages (1076-77).

[13] 26 T.L.R. 128 (1909).

[14] 53 Cal. App. 2d 207, 127 P.2d 577 (1942).

[15] 92 Cal.App.3d 61; 155 Cal. Rptr.29.  See also McCoy v. Hearst, 42 Cal 3d 835, 231 Cal. Rptr. 518, 727 P.2d 711 (1986), in which “mere similarity or even identity of names is insufficient to establish a work of fiction is of and concerning a real person.”  Mc Coy v. Hearst is especially interesting because the court found no actual malice in the first publication of the book because the publisher had cautioned the author that the characters must be totally fictitious, received the author’s assurances that this was the case, and an editor knowledgeable about libel law read the manuscript.

[16] Publishers who bring out actionable books have not shown “reckless disregard for the truth” even if they failed to investigate independently the truth of allegations in an author’s book regarding a plaintiff’s arrest record.  Murray VF. Bailey, 613 F. Supp. 1276 1280-81 (N.D. Cal. 1985).

[17] 17 Cal. 3 d 596 [131 Cal Rptr. 641, 552 P.2d 425.

[18] 398 U.S. 6 [26 L. Ed.2d] 6, 90 S. Ct. 1537.

[19] Other cases include Middlebrooks v. Curtis Publishing Co. (4th Cir 1969) supra, 413 F.2d 141, 143) and Greenbelt Pub. Assn. v. Bresler (1970) supra, 398 U.S. 6., with precedents and differences noted.

[20] 42 Cal.3d at 1042

[21] Robert D. Sack. Sack on Defamation: Libel, Slander and Related Problems. vol. 1. New York: PLI Press. 2.9.6.  See also Rich and Brilliant, Defamation-in-Fiction: The Limited Viability of Alternative Cases of Action, 52 Brooklyn Law Review 1,6 (1986).

[22] Cited in Ibid., 786 F.Supp. 791, 19 Media L Rep. [BNA] 2097 (W.D. Ark.), aff’d in part, remanded in part, 978 F.2d 1065, 20 media L. Rep. (BNA) 1925 (8th Cir. 1992) (picture of Arkansan falsely used to illustrate story about woman in Australia held to render story ‘of and concerning’ Arkansan), cert. denied 510 U.S. 931 (1993).  In Brafman v. Houghton Mifflin Co., 11 media L. Rep. (BNA) 1354 (Sup. Ct. N.Y. County 1984): “accidental use of plaintiff’s name in a book does not satisfy ‘of and concerning’ requirement where, upon a comparison of the characteristics of the book character and the plaintiff, a reader who know the plaintiff could not reasonably conclude that the publication referred to the plaintiff; any other rule would impose ‘prohibitive burden’ upon authors and publishers of creative works.”

[23] 744 F.2d 694, 697 (9th Cir. 1984).

[24] 215 Cal. App. 2d 560, 569, 30 Cal. Rptr. 350 (1963).


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