At most, Stegner assured her, he was using only selected paragraphs from the letters and memoir. (Actually, the borrowed passages would be considerably longer.) Would she read a draft of the manuscript? "I'm having to throw in a domestic tragedy of an entirely fictional nature," Stegner warned.
Micoleau declined. She was busy, and a 600-page manuscript was a lot to read. "I'm sure all concerned are content to trust your judgment," she wrote Stegner. "We all wish you well with the undertaking and have no desire to censor or interfere with it in any way."
What Stegner alluded to was a scene designed to give a fuller, more complex quality to the Susan Burling Ward character he was basing on Foote. In it, Ward and her husband's younger assistant are attracted to each other. Something intimate (but vague) occurs between them on the bank of an Idaho irrigation ditch. Ward's young daughter (who has the same first name as Foote's real daughter) wanders off and drowns.
There was no such known liaison in Foote's life, and Agnes, her daughter, actually died later in California of natural causes. The Foote family and others would come to see this fictional scene as an unwarranted stain on her character.
A paragraph in the front of the book thanks "J.M." and the one sister Stegner was aware of for the "loan" of their ancestors. "Though I have used many details of their lives and characters, I have not hesitated to warp both personalities and events to fictional needs. This is a novel which utilizes selected facts from their real lives. It is in no sense a family history."
Although Stegner knew that publication of Foote's memoir was imminent, he was trying to preserve -- as he had promised he would -- the family's anonymity. In the end, the novel was praised for its verisimilitude.
The offense of plagiarism, dating back to the Bible, or, for a more secular example, to Aristophanes, has never lent itself to absolute definition and consensus. (The preceding words were stolen from "Stolen Words" by Thomas Mallon, New York: Ticknor & Fields, 1989, pp. 2-4. The source has been credited as it should be in a work of nonfiction.)
So what is my conclusion after weighing all the available evidence? The legal counterpart of plagiarism is copyright infringement. It would take a long and costly legal suit to make a determination on this issue, and no one has chosen to go that route. The legal equivalent of slander is libel -- and you can't libel a dead person. So there doesn't seem to be much of a legal case.
