Maid Looking To “Clean Up” in Lawsuit
For most people, being the inspiration for a character in a best selling novel would be a dream come true. But 60-year-old southern housekeeper Ablene Cooper isn’t most people, and for her, it’s a nightmare.
In 2009, Kathryn Stockett’s best selling novel The Help chronicled the lives of Southern black maids and the white families who employed them in the 1960s. But for Ms. Cooper, who works for Ms. Stockett’s brother as housekeeper and nanny, the character Aibileen Clark hits a little too close to home – and now she’s suing.
Last month, The New York Times and The Wall Street Journal reported on the lawsuit that was filed on February 9 in Hinds County Circuit Court — and gave no indication of how this case will pan out. The complaint alleges “unpermitted” appropriation of Ms. Cooper’s identity, holding her to the public eye in a false light, and intentional and negligent infliction of emotional distress. LASIS investigates and asks: is Ms. Cooper likely to win on these claims?
First, note that Ms. Cooper is seeking damages of $75,000 on the nose. This amount may seem arbitrary, but it’s a magic number; under the federal rules anything above it would permit the defendant to remove the case to federal court. Ms. Cooper has no doubt concluded that she has a better shot at winning in a local court where the judge and jury are from her hometown and will be more sympathetic to her cause.
Ms. Cooper is suing for appropriation of name or likeness, also called misappropriation, because she feels the character is clearly meant to depict her. She says she is embarrassed by the racial insults the character in the book endures, and offended by passages describing Aibileen as having skin the color of a cockroach and a thick ethnic dialect. Laws governing misappropriation and rights to privacy are intended to protect one’s right to control how her name and likeness are used.
Although it varies from court to court, typically a plaintiff must prove (1) the actual appropriation of one’s identity by use of her name or likeness (2) without consent, (3) for the commercial gain of another. Misappropriation cases usually involve celebrities suing over unauthorized use of their name or image in connection with an advertisement, but you don’t have to be famous to seek a remedy.
In a 1992 landmark case , Wheel of Fortune co-host Vanna White sued Samsung for its ad that featured a robot in an evening gown on a game show set. The federal appeals court in Los Angeles ruled against Samsung, stating that the robot in the ad was clearly meant to depict Mrs. White because, along with turning letters while wearing a dress and blonde wig, the robot was on a Wheel of Fortune set. Together, these factors left no doubt in the judges’ minds that there was actual misappropriation of Ms. White’s identity.
There are also similarities between Ms. Cooper and the fictional Aibileen. Both are southern black women with basically the same unusual first name, both have a gold tooth, both had sons who died, and both were given the same nickname by the children they looked after. But many black women were maids and caregivers in the south in the 1960s, and it’s probably not uncommon for some of them to have had gold teeth, or sons who died. These attributes coupled with the use of a virtually identical name may seem to tip the scales in her favor, but Ms. Cooper shouldn’t count her eggs before they hatch.
In cases of creative works, the first amendment can serve as a shield against lawsuits such as this one. Courts have held that under the first amendment if a work is transformative, it is not misappropriation. A work is transformative if original, expressive elements are added when using a person’s name or likeness.
In a 2006 California case, a famous singer sued a videogame maker because a character in one of its games looked and dressed just like her, and used her signature catchphrase. The California Court of Appeal ruled that the first amendment provided a complete defense to the charges of misappropriation because the use was transformative. Citing a 2001 landmark case, the court said that a work is transformative if new expression has been added and explained that it doesn’t matter if the work conveys a meaning or message, only that the depiction or imitation isn’t the entire sum and substance of the work.
Ms. Cooper and Aibileen may have a lot in common, including a unique name, but a court will probably find that a significant amount of original expression was used to shape this deep and complex character. Ms. Stockett said in an interview with USA Today that Aibileen is “intelligent, an author, a devoted servant of the Lord and a good mother.” This may also be true about Ms. Cooper, but Aibileen transcends these attributes – her relationships with the other women in the book and the fictional journey she takes are meant to shed light on a time when women’s lives were decided for them and the suffocation they must have felt. A court will likely find that the “sum and substance” of the book comes from the characters that Ms. Stockett breathed life into, not from the mere imitation of a real person.
Since the misappropriation claim will probably not stand, neither will the claims of false light and infliction of emotional distress. One of the key elements of a claim of false light in the public eye (which is confusingly similar to defamation) is that the defendant actually published something about the plaintiff. Since a court will likely find that the character of Aibileen is not a misappropriation of Ms. Cooper, the analysis can stop right there. There is no need to look for the other elements, such as that the defendant had actual malice or that the publication would be offensive to the plaintiff, because there is no claim if nothing was published about the plaintiff in the first place.
Similarly, both intentional and negligent infliction of emotional distress require a plaintiff to show that the defendant’s outrageous conduct was the cause of the plaintiff’s severe emotional distress. A character in a novel, even one with questionable attributes, wouldn’t injure a reasonable person if that person weren’t the one the character was meant to depict. Ms. Stockett has explained that she barely knew Ms. Cooper and that Aibileen is a fictional character, not meant to depict anyone in particular. Besides that, it seems that Aibileen is seen by most as a brave and loveable character. It hardly seems likely that a court could find any real injury from being depicted in such an honorable way.
Ms. Cooper’s lawsuit will get a lot of press. But it will likely not succeed.
UPDATE, August 18: As we said…