Keepin’ It Real and Out of Court

In our more expansive states, we tell ourselves that our memories--and all the associations they trigger--are merely a personal perspective, the stuff of stories that are ours to tell. But most will concede that recollection lies somewhere in the gray territory between fact and fiction. And when a writer’s pen points too close to home, and a story spills some shared secret--or shades an event more darkly than others recall it--the aggrieved might reach for a stronger description of what memory’s wrought: Slander. Libel. Tattletales.

At a moment when many seem to be contemplating the gamble of mining secrets to make art (and/or money while they’re at it), the Beverly Hills Bar Assn. Barristers Committee for the Arts just a few nights ago hosted a lively panel: “The Curse of the Red Kimono: Legal Issues for Memoir and One-Person-Show Writers,” a nuts-and-bolts legal overview of the legal trapdoors of memoir and the challenges of bringing truth-based stories to the page or stage.

“This is not legal advice,” attorney and event organizer Joel Zighelboim stressed to a packed crowd of men and women (and children!) who snatched up every last folding chair in the naked, art-stripped main gallery at Track 16 in Bergamot Station. “We wanted to provide a public service for the arts community who may not have access to the law, but again, this is not legal advice. Talk to a lawyer in a confidential situation. This is purely informational. OK. Disclaimer stops here,” he joked.

For all the furious notebook scribbling, though, what was imparted may as well have been law--chapter and verse. One had to wonder what manner of secrets lay at home hidden in journals or password-locked on a computer hard drive. “They put an ad in Backstage West,” explained a woman saving the last precious seat for a friend. “And Theater L.A.....” piped in another.

A show of hands revealed that many of those assembled were playwrights, actors, memoirists. People with stories to tell. Or axes to grind.

In a culture that still feeds happily on the tawdriest of tabloids and roustabout reality TV, truth isn’t just elastic, it’s a conceit. Now, on screen, flashy Robert Evans resurrects himself by spinning his notion of the truth in “The Kid Stays in the Picture”: “There are three sides to every story: Yours, mine and the truth. No one is lying. Memories shared serve differently.”

In the literary world, the very girding of the late W.G. Sebald’s award-winning “Austerlitz” is being contested by a woman, Susi Bechhofer, whose journey toward self-identity after the Holocaust (“Rosa’s Child,” co-written with Jeremy Josephs and published by IB Tauris & Co. in 1996) became one of the models for his book. “I felt once more that my identity had been usurped,” she wrote in June in the Sunday Times of London. “I have no wish to detract from the masterpiece [he] has written. I just think ‘Rosa’s Child’ should be allowed to take a bow.”

Once a work debuts, it becomes all too clear that one person’s “total recall” is another’s “inflation” or “pure invention.” Flaps erupt. Friendships falter. Family members are excised from wills.

To help artists navigate the sensitivities, Zighelboim invited a range of speakers: memoirist Hope Edelman (“Motherless Daughters,” Perseus Books, 1994), playwright Nancy Balbirer ( “I Slept With Jack Kerouac”), literary agent Betsy Amster, entertainment lawyer Gordon Firemark, and Frier McCollister, who produces the radio commentaries of writer Sandra Tsing Loh (“A Year in Van Nuys,” Crown, 2001).

The event’s title, Zighelboim explained, was plucked from a 1931 California Appeals Court case--Melvin v. Reid--that involved a female prostitute who was charged with murder. She was tried and acquitted in 1918. Seven years later the film “The Red Kimona” (a.k.a. Kimono) was made, using her name and details from her life and the case. She sued the filmmakers and won. The court, Zighelboim says, “found that she had a right to live in seclusion after that. She had a right to protect that privacy. That case became one of the landmark cases for privacy in California.”

Zighelboim and Firemark broke down the basics: What is libel? What is slander? What’s a publication? What is defamation? What is highly offensive? Who is a reasonable person? What or who is considered newsworthy? What is actionable? Then they guided the gathering through the marshiness of what is public and what is private: “Does the Constitution mention a right to privacy?” queried Zighelboim. “That’s a trick question. The U.S. doesn’t. California does.” It was up to the writers and agents to explore what happens when the process of reanimating the past on the page--for the world to see--comes bundled with something more than catharsis. As Firemark had suggested, it isn’t always legal wranglings that vex storytellers but subtler issues--ethical choices and living with them.

Edelman, the memoirist, has become a bit of an expert navigating touchy territory. “Most of my writing is about my mother and grandmother. And I’m lucky that they are dead,” she explained in a tone more pragmatic than pointed. “It is my understanding that dead people can’t be libeled.” But those who are living have expressed their unease and displeasure. She suffered silences from aunts who disputed her version and strained relations with her father, who worried about being under such a public microscope.

She often talks about this in the creative nonfiction classes she has taught at Antioch University L.A. “The No. 1 question I get from students writing memoirs is: Should I change the name? My answer is: If you’re worried. Go ahead. That’s easy to do without compromising the story. But you have to be careful sometimes when you start changing too many details, it moves memoir closer to fiction.”

Playwright Balbirer is in the midst of just this dilemma. In “I Slept With Jack Kerouac,” her one-woman play, one character she portrays, “Aunt Betsy” is based on her real Aunt Betsy, who “had a fairly profound weight problem,” Balbirer explained. While the play enjoyed good West Coast reviews, Aunt Betsy was flattered to be the muse and model, a character that was warmly received in the press. But now that the play is poised for a run on the East Coast, closer to her home, Betsy has gone from honored to horrified. “She’s afraid that people would put two and two together,” Balbirer explained. Betsy made suggestions--notes. “How about Bitsy? Bootsy?” Ultimately, she pulled her trump card. “She told me it was illegal.”

At first, Balbirer felt hurt. Then she was shocked. “I wrote it with a great amount of affection,” she said. “But now she is so shamed.” And there are other complications. “I’m not just the writer but the actor. A lot of people are under the misconception that to be a good actor means you have to be a really good liar. But in fact that is completely wrong. To be a really good actor you have to be exceptionally good at telling the truth under imaginary circumstances.”

Which is why she feels torn. “I sort of birthed this character.... I don’t want to hurt [Betsy], but I don’t want to perpetuate this dysfunction,” the impulse to control, the secret keeping. “ ... So I’m not sure how I’m going to handle it.”

On the other end of the spectrum, Sandra Tsing Loh, to hear McCollister relate it, is blessed with a family with thick skin. Her spiky portraits, often played for humor, about her father’s temper, insensitivity and cheapness (his briefcase, she says, is made out of a Frosted Flakes box), have not only not offended him but made him a star in his own right. “Her father has become a cult celebrity. He shows up in his Chinese regalia and signs autographs himself.”

Since most publishers know that people aren’t generally as casual about such matters as Loh’s father, Amster, the agent, says that each house has its own way of dealing with what might come up after a public revelation--and particular ways of circumventing problems. Some authors draw up releases for friends and family to sign. Some houses may ask for notes. However, recalled Amster, the lawyers she’s dealt with “were careful but not capricious .... I don’t have any horror stories to tell.”

While McCollister’s advice to Balbirer would be to follow her best instincts as an artist, Firemark cautioned that publishers are indeed getting more and more gun-shy. And, he acknowledged, “There is a psychological toll on you as an artist. On the work. No matter which way you choose.”

That can be addressed, Edelman suggests, with honesty, and by thinking about what’s really motivating the telling of a story. “I see students who come in and they are writing from a place of anger, not distance. And it’s important to portray characters as balanced individuals.” Perspective, she noted, often comes with time.

Truth can be factual and emotional. And while memoir is an interpretation of an event, it also provides a well of rich narrative, conflict and psychological motivation. It is also therapeutic. But remember, Edelman offered with a seen-it-all pause, “People who have been wronged often end up in memoir classes.”

The moving pens took that down, too.