THOMAS JEFFERSON SCHOOL OF LAW

2003 RESEARCH PAPER SERIES

In

Public Law and Legal Theory

Copyright Infringement, Sex Trafficking, and the

Fictional Life of a Geisha

By: Susan Tiefenbrun

Michigan Journal of Gender &Law

Vol. 10 forthcoming

This paper can be downloaded without charge from

the Social Science Research Network Electronic Paper Collection at:
http://ssrn.com/abstract=460747
 COPYRIGHT INFRINGEMENT, SEX TRAFFICKING, AND THE FICTIONAL LIFE

OF A GEISHA

by

Susan Tiefenbrun

Thomas Jefferson School of Law

Why, in the West, is politeness regarded with suspicion?

Why does courtesy pass for distance, if not, in fact, evasion

or hypocrisy? Why is an “informal” relation (as we greedily

say) more desirable than a coded one?

Roland Barthes, L’Empire des Signes (l970)

I. INTRODUCTION

The Geisha: Is she Artisan or Courtesan, Prostitute or Whore? Since the l700s people have

been fascinated by the ambivalence of the geisha in Japanese society because she is both revered

as an artist and symbol of Japanese old-world tradition and reviled as a sex slave. Arthur

Golden’s Memoirs of a Geisha captures that duality in its unusual narrative structure and

wonderfully lyric style. In the novel, the author hides himself so craftily behind the personae of

both the translator and the narrator that the real geisha confuses herself with the fictional geisha,

claims she is the co-author of the book, and ends up suing the author in a New York court. This

is the first time that an author’s masterful use of a narrative technique based on voyeurism and

1
duality constitutes the primary cause of a law suit for copyright infringement, breach of contract,

right to privacy, and defamation. The legal issues which this Article will analyze are two-fold:

whether the geisha tradition, as illustrated in Arthur Golden’s novel, is a variant of forced

prostitution, sex trafficking, and a contemporary form of slavery and should be abolished, and

whether the real geisha’s lawsuit has any merit? To answer these questions, this Article will

examine the structure, style, and storyline of the text, the historic and legal context of the

narrative structures, the subtext of sex trafficking and the role of cultural relativism, the post-text

which is the law suit and its merit, and the big issue, which is the pre-text or why the real geisha

is suing Arthur Golden.

Like a voyeur, the American author of the book, Arthur Golden, hides behind two

narrative masks (the translator and the narrator/geisha) that are both fictional creations. And yet

another figure lurks in the shadows of the text--the real geisha in Japan who provided Golden

with information never before disclosed about the geisha world. Two fictional characters, the

translator and the geisha, mirror two real people, the author and the real geisha in the course of

the reading act. The grand voyeur is the reader who remains fascinated by the titillating game of

seductive unmasking which reading this novel affords. The complexity in the reading experience

lay in the interplay of reality and fiction and the tension that is sustained between the narrator,

who agrees conditionally1 to reveal secrets of the geisha life to the translator, and the real geisha

1
“Though she was eager to have her biography recorded, Sayuri did insist upon several
conditions. She wanted the manuscript published only after her death and the deaths of several
men who had figured prominently in her life.” Memoirs of a Geisha (l997) [hereinafter
Memoirs], at 4. See also Memoirs at 2: “One day I asked her if she would ever permit her story
to be told. Well, Jakob-san, I might, if it’s you who records it.” She told me.

2
who allegedly also agrees conditionally2 to disclose precious mysteries of the closed geisha

world to the author, only if he promises to keep her name anonymous.

The confusion between the author and his personae begins immediately as the novel

opens. A fictional translator appears, calling himself a historian, scholar of Japan, and

academician,3 which are the very same characteristics that perfectly describe the author, Arthur

Golden. The translator’s name is Jakob Haarhuis, a clever mask for the word ”whorehouse” in

Dutch. The translator, sounding more and more like the author of the book, admits having

translated the narrator’s special Kyoto dialect, but his translation is that of a skilled author. The

so-called translation is in a subtle but imagery-packed and poetic English flavored with exotic

spices. As a guarantee of authenticity and accuracy, the translator also uses the narrator’s

secretary to transcribe her first person intimate narration of the geisha life.

The narrator is an elderly and famous4 geisha named Nitta Sayuri who, according to the

translator, resided in New York for many years and is now dead. Her death actually satisfies a

condition precedent for publication that Sayuri imposed on the translator. But this geisha is not

the “real geisha” who decided to sue the author. The elderly and famous geisha is a fictional

narrator who, the translator tells us, came to the United States in l956, which is the watershed

year that prostitution became illegal in Japan, a fact that Golden, the historian, new quite well.

According to the novel, Sayuri, the narrator, lived in a suite in the Waldorf Towers in New York

2
Iwasaki Mineko claims that she agreed to give Arthur Golden the tapes on condition that
he respect confidentiality of her real name. She also had other conditions.
3
Memoirs, at l-2.
4
The translator refers to a “lengthy” chapter about her “in the book Glittering Jewels of
Japan, or in the various magazine articles about her that have appeared over the years.” The
narrator-geisha is then what could be called a “public figure”. See Memoirs at 2.

3
for 40 years.5 The real geisha, who is Iwasaki Mineko, actually lives in Japan now but

apparently also lived in New York for some years. The similarities between the real geisha and

the fictional geisha, and between the narrator and the translator, are the basis of a law suit filed

by the real geisha for claims against the author.

According to the real geisha, Iwasaki Mineko allegedly agreed to provide information to

Arthur Golden only as a check to correct any errors in a book that Golden had just written about

the life of the geisha. Golden did write two earlier drafts of a book about a geisha, both of which

were in third person narrative, but he abandoned these two drafts after he heard the revealing

testimony of the Iwasaki Mineko. Although the real geisha, like the fictional geisha, claims to

have also required the satisfaction of one condition precedent to the publication of the book–that

her name remain anonymous and that all her personal information remain confidential–Arthur

Golden did write her name clearly and boldly in the acknowledgment of the book. Golden

admits that the real geisha is the source for the narrator/geisha that he created, but he claims that

the fictional geisha is entirely different from the real geisha. Iwasaki Mineko was a real geisha in

the l960s and l970s. Nitta Sayuri represents the demi-monde of the geisha tradition in Japan in

the years l930 to l946.

Breaking with the code of silence,6 both the real geisha and the fictional geisha shock

5
Memoirs, at 2.
6
“Like prostitutes, their lower-class counterparts, geisha are often in the unusual position
of knowing whether this or that public figure really does put his pants on one leg at a time like
everyone else...these butterflies of the night regard their roles as a kind of public trust, but in any
case, the geisha who violates that trust puts herself in an untenable position.” Memoirs, at 3.

4
the world by agreeing to reveal deeply-guarded secrets7 of the geisha world on tapes containing

valuable information about a Japanese tradition that is slowly disappearing. The real geisha

actually met Arthur Golden in Kyoto where “over several days, she explained all there was to

know about the life of a geisha, walked [Golden] around the Gion district and introduced him to

others who had inhabited the same strange world.”8 Soon after Golden’s visit to Kyoto, Mineko

herself came to the United States and spent a week at his home. Why these geishas agree to

reveal the secrets remains the mystery in the novel as well as in reality. The translator asks at the

beginning of the novel: ”Why had she wanted to document her life?” “What else do I have to do

with my time these days?”She replied.”As to whether or not her motives were really as simple as

this, I leave the reader to decide.”9 In the constant interplay of reality and fiction, the narrator

poses this question to the reader in the novel, and Golden continues to ask the the same question

in public about Iwasaki’s real motives for speaking out.10 “It is still not clear to Golden why

Mineko was so helpful to him. “While there was no shame to what she did while she was in the

geisha life...in retirement, it is a past that carries some stigma.”11

7
The geisha in Japan normally assumes the role of a “public trust” and must not divulge
secrets. See Memoirs at 3. Sayuri, the fictional geisha, is residing in New York when she agrees
to divulge the secrets to the translator. Sayuri, presumably, can safely talk about the geisha world
ly because she is no longer in Japan, but the question remains is why Sayuri decides to reveal the
secrets. Iwasaki Mineko, the real geisha, resides in Japan, and the bigger question is why the real
geisha decided to reveal the secrets.
8
David Usborne, The Real Geisha, THE INDEPENDENT, November 1, l998, at WL
21741649 (London Newpaper).
9
Memoirs, at 3-4.
10
Golden has given numerous public addresses in which he questions why Iwasaki
decided to give him this information.
11
Usborne, supra note 8.

5
 The real geisha’s decision to disclose to Golden intimate details of her life as a geisha

had dangerous consequences for her.12. After the novel was published and the translation in

Japanese was distributed, the geishas of Japan were convinced that Iwasaki had betrayed them

and the honor of the profession. The geishas of Japan cried out against Iwasaki, causing disgrace

to herself, to her children and to her family. Her sister geishas actually begged Iwasaki to

commit harakiri.13 Instead of suicide, she decides to sue!

The author is not a naif. Golden emanates from the savvy Sulzberger-Ochs family that

for a century published the New York Times. Like the translator, Golden studied Japanese

history and art at Harvard and Columbia. He spent fourteen months in Japan in the early 80s.

Before the post-text scandal develops in Japan, Arthur Golden immersed himself in the Japanese

language and culture and felt empowered by a clear expression of publication approval from the

real geisha. It seems unlikely that an author with a familial history and real life experience in the

world of publication would knowingly violate a confidentiality agreement and risk a suit for

defamation, right to privacy, and copyright infringement.

Golden’s novel about the geisha life is written in first person in the voice of a Japanese

woman living in a bygone era. He creates a fictional geisha who is both the narrator and the

protagonist. She tells the story of her life as a little girl named Chiyo-chan. Chiyo grows up in a

happy but “tipsy house”in a poor fishing village in Yoroida. Her father is a quiet fisherman, and

12
The code of silence among geisha is designed to protect public figures who are the
geishas’ customers. In l989 the Japanese Prime Minister Sosuke Uno was forced to resign after
only 69 days in power, after his former geisha lover broke her profession’s code of silence and
revealed their relationship. See Erling Hoh, “Tradition: Memory and Desire:” in Arts & Society
(46), Thursday, Nov. l9, l998, in Far Eastern Economic Review (48) 1198 WL-FEER l3867272..
13
See newspaper article where Mineko speaks out...

6
when her mother is about to die from bone cancer, Chiyo’s despondent father sells her at the age

of nine into a life of slavery, confinement, isolation, and debt bondage. But ultimately Chiyo

becomes a famous and prosperous geisha known as Nitta Sayuri. The transformation of Chiyo to

Sayuri, from a life of poverty to riches and from the degrading status of lowly housemaid in an

okiya or geisha house to the glamourous life of the most highly sought after geisha in the Gion

district of Japan, is the essence of this fictional biography.

The title captures the narrative tension of duality sustained throughout the novel:

Memoirs of a Geisha contain the two poles of a dialectic that appears in myriad forms:

fact/fiction; novel/reality; secrecy of geisha life/revelation in Memoirs; intimacy of

Memoirs/opacity of Japanese society; politeness of geisha society/passion and animosity of the

geisha underworld; tradition/modernity; protocol, rigidity, ritual, hierarchy, stability and

conformity to the geisha tradition/chaos and instability of war, poverty, and modern life;

narrator/informant; translator/author; geisha/prostitute; artisan/courtesan; etc. As the translator

reminds us, a memoir is a narrative form that is not just a biography of one person but tells the

story of a whole world.14 The term “memoir” also signifies the disclosure of intimate secrets. The

reader of this novel enjoys eavesdropping on the informed narrator who reveals in her Memoirs

some of the most hidden secrets about the mysterious and closed world of the Geisha.

The novel has sold and made millions for Arthur Golden since l997. This is his first

novel, and it has earned him worldwide acclaim. A feature film version directed by Steven

Spielberg is scheduled to come out next year. The book is translated into more than twenty

languages. Four years after the novel was published and two years after the Japanese translation

14
Memoirs, at 1.

7
was distributed, Iwasaki Mineko, the real geisha who is clearly identified and named in the

acknowledgments of the book,15 files a complaint on April 21, 2001 in the United States District

Court of the Southern District of New York. She sues against Arthur Golden, Random House,

Inc., and Alfred Knopf, a division of Random House, Inc. claiming breach of contract, quantum

meruit, and unjust enrichment16 under the laws of the State of New York and the laws of Japan

and asking for an accounting under the Copyright Laws of the United States l7 U.S.C. Section

101. The complaint vaguely suggests copyright infringement, defamation of character and

violations of right to privacy and publicity.

II. TEXT

A. STRUCTURE OF THE NOVEL: VOYEURISM AND AMBIVALENCE

The reason the reader simply cannot put down this titillating novel is because its

medium is the message: voyeurism is seductive. Chiyo, the young apprentice geiko, is taught the

art of seduction at the knee of her exquisitely beautiful sister geisha, Mameho. From Mameho

15
“Although the character of Sayuri and her story are completely invented, the historical
facts of a geisha’s day-to-day life in the l930s and l940s are not. In the course of my extensive
research I am indebted to one individual above all others. Mineko Iwasaki, one of Gion’s top
geisha in the l960s and l970s, opened her Kyoto home to me during May l992, and corrected my
every misconception about the life of a geisha–even though everyone I knew who had lived in
Kyoto, or who lived there still, told me never to expect such candor.” Memoirs, at 433.
16
In the book Sayuri “receives an advance from the publisher”. Memoirs, at 3. But
Iwasaki Mineko claims she never received any remuneration for her more than l00 hours of
taping. In the complaint she is now seeking no less than the appropriate percentage of the
$l0,000,000 in sales generated by the book

8
Chiyo learns the subtlety of manipulating the sleeve and silken folds of her beautiful, long

kimono so as to reveal only the underside of her arm while she delicately pours tea and seduces

her client with the suggestion of nakedness. The geisha captivates by understatement and

suggestion. Typically, the geisha covers her face with thick white makeup like a mask, but she

also leaves some naked spots all around her face and especially on the nape of her neck which is

considered the height of eroticism for Japanese men.17 Catching a glimpse of Japan’s otherness

in a spot of pale skin on the otherwise pure white face and neck of the geisha is the kind of

voyeurism that the reader can also experience while reading this novel. The reader is the voyeur

second in line behind the translator who hides behind the author who ultimately crafts the words

of an informant who is the narrator who slowly unveils the mysteries of the erotically charged

world of the geisha. Behind all of these masks is the real geisha who provides valuable

information to a hidden author who creates the novel in words of his own that cleverly capture

the flavor of Japan and the idiolect of a woman writing about her life as a geisha.

In this thickly-layered narrative structure, the reader can spy on the geisha and get

more than a glimpse at the underbelly of the geisha culture. Because of the carefully researched

work of the author and the documentation provided by the informant, the reader sees vivid

pictures, slices of life, of the geisha world in Japan before and during World War II. There is no

doubt that Arthur Golden used the real geisha’s transcription as a source, but he changed her

words, selected only parts of her transcript, rearranged her thoughts and expressions into his own

creation, and wrote in his own idiom as required by the craft of fiction writing. By reading the

novel, the reader can see the way the young apprentices to the geisha are abused and forced to

17
Memoirs, at 63.

9
eat only rice and pickles and a few scraps of dried fish twice a month; the way the lowly young

and overworked maidservants develop into the equivalent of a Japanese prima donna, a geisha,

who is pampered, combed elaborately once a week by the celebrated hair dresser, and dressed in

the most exquisite silken kimonos18 that can weigh as much as thirty pounds; the reader observes

the rigorous training the geisha receives in the arts of music (the shamisen), dance (“the most

revered of geisha’s arts”19 taught in the Inoue School tradition20), and conversation (witty,

cultivated,21 and intelligent enough to entertain corporate magnates and prime ministers); the

reader sees the way the geisha learns the delicate art of the tea ceremony which represents the

very soul of Japanese tradition; the reader follows the geisha as she learns to walk on high

platform shoes with small steps and float like “waves rippling over a sandbar;”22 to bow to a

level according to the status of the person;23 the reader sees how the geisha learns to talk with her

eyes,24 the way she makes the rounds in the teahouses and at private parties where she entertains

customers; they way she manages to survive in the rigidly hierarchical structure of the okiya or

geisha house where deference and strict obedience are demanded; the way the geishas live

18
See the art of the kimono described in Memoirs, at 73. Hatsumomo forces Chiyo to
calligraphy on a beautiful kimono in order to destroy it and to get Chiyo in big trouble.
19
Memoirs, at l50.
20
Id.
21
Geisha can converse about literature, about Kabuki, or about the more childish kind of
conversation. See Memoirs, at 174.
22
Memoirs, at l57.
23
Id.
24
Memoirs, at 159.

10
together in harmony in this complex system of competition; the way the sisters trick each other

maliciously out of jealousy and utter cruelty; and the way the young and innocent women are

enslaved and confined in a very strict household governed by a wily, money-hungry Mother, a

strong-arm, grumpy Granny who viciously beats the maids, novices, apprentices, geisha, and

cripples poor Auntie for life; the reader learns about the tradition of mizuage or “deflowering”

where the geisha’s virginity is sold to the highest bidder for great sums, a practice that is no

longer in existence. The geisha may never escape, and if they do run away, they have no where

to go.25 The geisha may never marry, and if they do marry, they must stop being geisha. They

need a danna or official patron to support them financially so that they may live comfortably in a

state of relative independence. The danna is not a husband, although he expects favors from his

geisha to include sex. . The geisha may not entertain lovers in the geisha house, although many,

like Hatsumomo, often do.26

The voyeuristic narrative structure of the novel is re-created in miniature in a symbolic

scene at the beginning of the novel. Chiyo-chan’s father has decided that his two daughters, little

Chiyo-chan and her sister Satsu, should be adopted by Mr. Tanaka, who is the wealthy head of

the Japanese Coastal Seafood Company. Mr. Tanaka is a trafficker of geisha and prostitutes in

disguise. He has a daughter, Huniko, who Chiyo meets on her first visit to Mr. Tanaka’s house.

On that day Chiyo is treated royally by the Tanaka family, and she and her “adopted” sister

Huniko play gleefully with each other all afternoon. In the evening the two girls decide to spy on

25
Memoirs at 52.
26
Memoirs, at 91.

11
Mr. Tanaka, from behind a little hole,27 like the reader who spies on the geisha through the eyes

of the narrator. There from behind a little hole iChiyo gets her first glimpse of the flower and

willow world as she watches Mr. Tanaka engage in the nightly pleasures of a teahouse in

Senzura. Little did the innocent Chiyo-chan know that Mr. Tanaka’s real idea of “adoption” was

to buy her for a small sum from her father and then, without her consent and maybe without her

father’s knowledge, sell her for a hefty sum to a geisha house in the Gion district of Kyoto. That

hefty sum will be the start of Chiyo’s ever increasing debt to the geisha house that she must

repay by servicing men.

Despite the shock and abuse Chiyo suffers at the hands of Mr. Tanaka and his agents,

Chiyo’s attitude toward her trafficker is one of ambivalence, which is customary among abused

women. In Chiyo’s wildest dreams she could not have imagined that Mr. Tanaka, whom she

considered her savior, would cause her to become a slave to men, to the geisha house, and

especially to Hatsumomo, the most cruel and beautiful of all geishas. Upon meeting the pretty

little Chiyo for the first time, Hatsumomo becomes instantly jealous and refers to Chiyo directly

and disparagingly as “garbage.”28 Thereafter, Hatsumomo makes it her life’s ambition to

destroy Chiyo’s chances at becoming a full-fledged geisha. All through her bitter experiences of

sex slavery, debt bondage, victimization, and marginalization by the heinous practice of

trafficking and the non-consensual sale of human beings for sexual exploitation, little Chiyo-

chan has ambivalent thoughts about her trafficker. She thinks about Mr. Tanaka affectionately

as her savior and with hatred and disgust because he sold her into slavery. When she was still

27
Memoirs, at 28.
28
Memoirs, at 32.

12
living at home in her tipsy house by the sea, she claims to have had “fantasies of adoption”29by

Mr. Tanaka. “But the truth is that the afternoon when I met Mr. Tanaka Ichiro really was the best

and the worst of my life.”30 She expresses this ambivalence towards her trafficker at the

beginning of the novel and repeats it again31 later just before she falls head over heels in love

with the ineffable Mr. Chairman, who is her prince charming, “her bodhissatva with a thousand

arms who would help me,” 32 and the savior that Mr. Tanaka never really was. Typically, women

who are poor and uneducated, like Chiyo-chan and Satsu, will become dependent on men for

survival,33and Mr. Tanaka, Mr. Chairman, and the geisha life style are various manifestations of

that dependency created by economic conditions and deep-seated anti-feminist views about the

value of women in society.

Mr. Tanaka is the prototype trafficker who works through fraud and deception to snare

innocent victims of poverty and ignorance. He deceived Chiyo’s father by claiming he would

“adopt” Chiyo and her sister into his own family and give them both a better life than her own

29
Memoirs, at 21.
30
Memoirs, at 7. See also Memoirs, at 21. “Certainly it was true a part of me hoped
desperately to be adopted by Mr. Tanaka after my mother died; but another part of me was very
much afraid.”
31
Memoirs, at l05.
32
Memoirs, at ll9.
33
In an interview, Golden was cited as saying:“Some geishas–a few still exist–accrue
wealth and power by manipulating clients’ affections.’ It is the only subculture in Japan I
know,’says Golden,’that is absolutely ruled by women.’”See Alec Foege Nacy Day, Geisha Guy
Arthur Golden Isn’t Japanese, PEOPLE MAGAZINE, Nov 23, l998, Vol. 50, No. l9.

13
father could provide.34 Tanaka uses the word “adoption” because in l936 selling human beings

was prohibited by an edict of l6l2 and by the Emancipation of Prostitutes and Geisha Act of

l872, but it was not illegal to adopt children. Mr. Tanaka is recreating his only life by playing the

role of a trafficker.When Tanaka was a young boy his mother and father died early and he, too,

was sold to a family.35 The sale of children in poor agricultural communities was part of the

cultural tradition in Japan during the lean years, and this tradition still exists in many countries

today.

Mr. Tanaka also deceives Chiyo and her sister. He throws out the bait and cleverly

entices Chiyo to come over to his house, promising her that she will stay only one night and that

he will bring her back to her home again.36 Like the good fisherman he knows, Tanaka uses lures

to snag his prey. Once Chiyo and Satsu arrive in his big house in Senzuru, he feeds them well

and provides entertainment. By the end of the day Chiyo and Satsu are caught off guard, forced

to undress, brutally handled by Mrs. Fidget who tests their virginity with her own dirty fingers,

pinches them on the neck so hard that Chiyo “felt as if I’d fallen into a tub of creatures that were

biting me everywhere.,”37 The two girls are then driven off to Kyoto by force by a stranger, Mr.

Bekku. On the train to Kyoto Chiyo and Satsu are given no food to eat and are made to watch

Mr. Bekku gulp down a lotus leaf of sweet rice.38 Chiyo remarks, “ I felt as sore as a rock must

34
Memoirs, at 21: “I can’t picture the girls living anywhere else.”“I understand, but
they’d be much better off, and so would you.”
35
Memoirs, at 20.
36
Memoirs, at 21.
37
Memoirs, at 34.
38
Memoirs at 34.

14
feel when the waterfall has pounded on it all day long.”39

Like the typical sex slave trafficker that he is, Mr. Tanaka works with an agent, like Mr.

Bekku, and engages in fraudulent, deceptive, and coercive behavior in order to transport women

into a milieu of sexual exploitation for financial gain.40 Mr. Tanaka is particularly cruel to Satsu,

who is less beautiful than Chiyo and who Tanaka sends to a brothel to lead the miserable life of a

prostitute. But Chiyo, with her captivating grey eyes, is beautiful enough to be sold to a geisha

house in Gion where she works her way up from a maidservant to become “one of the twenty

greatest geisha in Gion’s past.”41 From that fateful day when Chiyo leaves Mr. Tanaka’s house to

live in the okiyo in Kyoto, Chiyo-chan will continuously search for her sister but never again be

able to experience the tenderness of family love. She will be forced to pay back a constantly

increasing debt to the geisha house for providing her with an education in the arts. When she

reaches the geisha house in Gion, Chiyo’s only source of kindness is doled out sparingly by the

greedy Mother who manages the okiya and whose affection Chiyo describes as being “what a

fish might feel for the fisherman who pulls the hook from its lips.” 42 Chiyo soon learns the

harsh reality: “My father sold me into slavery.”43 She pleads for help “to set me free” and to

39
Id.
40
See Susan Tiefenbrun, The Saga of Susannah: a U.S. Remedy for Sex Trafficking in
Women: The Victims of Trafficking and Violence Protection Act of 2000 1,UTAH LAW
REVIEW 107, 120 (2002) [hereinafter Tiefenbrun on Trafficking] for a definition of trafficking,
proposed in a publication of the Coalition Against the Trafficking of Women.
41
Memoirs, at l05.
42
Memoirs, at 49.
43
Memoirs, at 82.

15
“free a little girl from slavery.”44 Her pleas fall on deaf ears, like many of the millions of little

women and children sold into sex slavery each year not only in Japan but all over the world.

B. STYLE OF THE NOVEL: KEY OF G FLAT MAJOR

Arthur Golden has accomplished a tour de force by writing with authenticity and engaging

lyricism in the many different voices of his evolving narrator. First he writes in the naive voice

of the small Japanese girl from a tiny fishing village and then in the sophisticated voice of a

highly cultivated geisha trained as an artist to entertain men with subtle conversation about

music,< dance, and literature. Here is an example of the prophetic voice of the little girl about to

be captured by Mr. Tanaka:

“When Satsu and I reached the Japan Coastal Seafood Company, we watched the

fishermen unloading their catches at the pier. My father was among them, grabbing

fish with his bony hands and dropping them into baskets...I climbed upon the wheel

to watch. Mostly, the fish stared out with glassy eyes, but every so often one would

move its mouth, which seemed to me like a little scream. I tried to reassure them by

saying: “You’re going to the town of Senzuru, little fishies! Everything will be

okay.” I didn’t see what good it would do to tell them the truth.”45

44
Memoirs, at 101.
45
Memoirs, at 22.

16
For even more authenticity and local color mixed with a hue of irony, Golden has Mr. Tanaka

teach Chiyo a song of prayer that his wife had invented for the poor little fish: “Little bass, oh

little bass! Speed yourself to Buddhahood!”46 And the Japanese words of the song are even

transliterated to give the reader a taste for the exotic. In order to capture the idiolect of the

Japanese speaker and to draw the reader deeper into this foreign world, Golden uses children’s

words like “fishies,” inaccurate English constructions like “At length Mr. Tanaka came out into

the street...47and indigenous Japanese expressions like “When were you born? She’s the year of

the cow48...you’re the year of the monkey...”49“with so much water in her personality...probably

she’ll be able to smell a fire before it has even begun.”50 The reader is reading English but it feels

like Japanese.

Golden uses many stylistic devices to capture the otherness of of the geisha world in

Japan of the l930s and l940s. He invents colorful metonymic names like Mrs. Fidget, Dr. Crab,

Mr. Snowshowers (for a man with dandruff) in order to illustrate the particular humor of the

people and the childlike quality of the world Chiyo-chan lives in when she begins her journey

into the flower and willow world of the geisha. Golden focuses on small details like the “fair

number of rickshaws operating then in Kyoto,”51 rickshaws being signs of glamour and wealth as

46
Memoirs, at 23.
47
Id.
48
Memoirs, at 24.
49
Memoirs, at 25.
50
Memoirs, at 43.
51
“In fact, so many were lined up before the station that I imagined no one went anywhere
in this big city unless it was in a rickshaw–which couldn’t have been further from the

17
contrasted to the “filth of the street” in Kyoto. Rickshaws have practically disappeared in Japan

and are now only reserved for the few geisha that remain today as vestiges of the greatness of old

world Japan and its customs and revered traditions.

Golden paints vivid portraits of people who become almost like La Bruyere

“caracteres” that symbolize stereotypes. But Golden is trying to break the stereotype of the

geisha as an ethereal and remote creature who quotes nothing but poetry. For example, the

Mother of the geisha house is depicted as the icon of ugliness:

“Every detail of this woman’s kimono was enough to make me forget myself. And then

I came upon a rude shock: for there above the color of her elegant kimono was a face so

mismatched to the clothing that it was as though I’d been patting a cat’s body only to

discover that it had a bulldog’s head. She was a hideous-looking woman...I looked

straight into Mother’s eyes. When I did she took the pipe from her mouth, which caused

her jaw to fall open like a trap door. And even though I knew I should at all costs look

down again, her peculiar eyes were so shocking to me in their ugliness that I could do

nothing but stand there staring at them. Instead of being white and clear, the whites of

her eyes had a hideous yellow cast, and made me think at once of a toilet into which

someone had just urinated...the rims of her eyes were red, like meat, and her gums and

tongue were gray. And to make things more horrible, each of her lower teeth seemed

to be anchored in a little pool of blood at the gums...she was like a tree that has begun

truth...some of the drivers even lay curled up asleep right there in the filth of the street.”
Memoirs, at 35.

18
to lose its leaves...”52

But Golden’s main stylistic device is the simile which he uses with abandon throughout this

beautifully written novel that has the quality of a prose poem. It is precisely because this

fictional biography reads like poetry in prose that the reader becomes aware of the presence of an

author hiding behind the narrator. In the paragraph above there are no less than six similes that

draw the reader into the particular idiom of the narrator, help paint a more vivid portrait of the

thing being described which is the ugliness of Mother, and remind the reader of the hidden

presence of the author creating this unusually imaginative work. The similes help establish a

fairytale quality in the novel which has been described by many as being a Cinderella story.53

The beauty and magic of the fairytale are counterbalanced by the stark reality of child

abuse, sex slavery, and the depths of human cruelty that pervade the geisha underworld. The dual

tone of this novel is like that of the famous aria about the tragic life of a geisha, Un Bel Di in

Puccini’s Madama Butterfly, which is written in the captivating key of G flat major and

modulates constantly into the key of E flat minor.

This novel is constructed stylistically on a pattern of duality in which brief moments of

happiness alternate with hours of desperate sadness. The exquisite delicateness of the geisha as

artist co-exist with the horrors of the helpless children abducted into a world of sexual

exploitation represented by the courtesan or prostitute.54 Golden captures this duality in one of

52
Memoirs, at 41-42.
53
Cite articles by book reviewers calling it Cinderella.
54
“In l994 the Gion maiko (trainee) Kaori Takagi shocked the geisha world by suing her
teahouse for physically abusing her–and then opening a geisha disco, DJ Palace, in Kyoto’s

19
the most memorable poetic passages of the novel that contains a plethora of similes enveloped

in an extended metaphor of the geisha as a work of art:

“When I first learned the news of my family, it was as though I’d been covered over by a

blanket of snow. But in time the terrible coldness had melted away to reveal a landscape

I’d never seen before or even imagined. I don’t know if this will make sense to you, but

my mind on the eve of my debut was like a garden in which the flowers have only

begun to poke their faces up through the soil, so that it is still impossible to tell how

things will look. I was brimming with excitement; and in this garden of my mind stood

a statue, precisely in the center. It was an image of the geisha I wanted to

become.”55

The duality of the geisha as artist and courtesan is a leitmotif in the novel and constitutes

one of the many sources of its narrative tension. The author so successfully sustains this tension

that it results in the real geisha filing suit against the author for defamation of character. The real

geisha claims that the author has put too much emphasis in the novel on the sexual functions of

the geisha, dishonored the profession, and misunderstood the real nature of the geisha who is

above all a highly trained artist.56 But in the defense of the author, Golden does go to great

lengths to emphasize the distinction between the geisha and the prostitute. The narrator specifies

upscale Gion district.”

55
Memoirs, at 161.
56
Put in cite from publicity on the case.

20
the etymology of the term “geisha” which is made up of the word “gei” meaning “artist”57. The

narrator describes the difference between the costumes of the geisha and the prostitute. The obi

(cumberbund) worn by the geisha is tied in the back rather than in the front where the prostitute

ties her obi because, unlike the geisha, the prostitute has to take the sash on and off all night.58 It

is important to note that Chiyo’s sister is sent to a brothel, not a geisha house, and the contrast

between the sisters’ two ways of life is underlined.

What is a geisha? The term geisha, which literally means “artist,” has changed its

meaning from the time it first appeared in the l600s.59 The first geisha were men who entertained

at parties where the prostitutes (yujo) entertained men. The male geisha were also called jesters

(hokan) or drum bearers (taiko-mochi). Japan’s last male geisha died in Tokyo last year.60 When

in l751 the first female drum bearer entered one of the parties, she was referred to as a geiko,

which is the term used today in Kyoto to designate a geisha. In the eighteenth century, geisha

were purely entertainers referred to as shiro (white) geisha. There were many forms of

entertainers then. One type was a korobi geisha who “tumbled” for guests at the parties. The

kido (gate) geisha were those entertainers who stood at the entrance to carnivals, played their

57
“But a geisha must study a great many arts besides shamisen. And in fact, the “gei” of
“geisha” means “arts,” so the word “geisha” really means “artisan” or “artist”. Memoirs, at l41.
58
Memoirs, at 83.
59
Dalby, supra note 8, at 56.
60
Erling Hoh, Tradition: Memory and Desire: A best-selling American novel about the
geisha revives interest in that venerable but surprisingly resilient Japanese institution, ARTS &
SOCIETY (46), Thursday, Nov. 19, 1998, in FAR EASTERN ECONOMIC REVIEW.

21
shamisen, and attracted business. The joro (whore) geisha were hired for their sexual skills.61

The former dancing girls (odoriko) who entertained in the feudal towns around l770 began to be

called machi geisha or “town geisha.” These were different from the geisha who appeared in the

licensed quarters of the cities. Machi geisha were also referred to as neko or cat, which signifies

by connotation, the availability of sexual services.

The duality between geisha and prostitute, artisan and courtesan is reflected in the laws

passed in Japan62 and in the shifting standards of morality in the Japanese society. For example,

under the Meiji regime in l872 the Emancipation of Prostitutes and Geisha Act63 was passed and

required prostitutes to be licensed, whereas geisha did not have to obtain such a license. Some

years later, geishas were required to obtain one license to do their job as a geisha and a separate

license to do prostitution, if they decided to engage in this activity in order to supplement their

earnings. In l946 another law was passed banning prostitution64, but this law was not well

enforced. In l956 yet another law was passed banning prostitution.65 After l956 the geisha are

even more clearly distinguished from prostitutes. Geishas are prohibited by the l956 law from

sleeping with their customers, although they do engage in sex surreptitiously. In the course of

Japanese history ladies of pleasure were banned, re-allowed, emancipated and banned again, and

61
The fact that there were geishas who were named “whores” is another source for the
association of geisha with prostitutes in the Japanese mind. See infra text accompanying
footnotes to for a discussion of the link between geisha and prostitute.
62
See infra notes to for a more detailed discussion of the Japanese laws passed
pertaining to the regulation of prostitutes, courtesans, and geisha.
63
1872 Emancipation of Prostitutes and Geisha Act...(see Morrison for cites).
64
Cite.
65
Cite

22
geishas, too, had to navigate the shifting sands of official morality.

There is no doubt that Arthur Golden stresses the difference between the geisha and the

prostitute in his novel and in public interviews.66 Nevertheless, the link establishing similarity

between the geisha and the prostitute is in the mind of the Japanese and of the rest of the world.

The geisha, who is respected as an artist, has always lived in the same geographic area as the

prostitute and is associated with the dubious morality of the prostitute. The geisha services the

same clients as prostitutes. The geisha has always lived in the same geographic area as the

prostitute. By virtue of this propinquity, there is bound to be an association of the immorality of

the prostitute with the geisha. To reflect that duality, Golden provides numerous examples of the

geisha’s rigorous training as an artist, on the one hand, and also includes memorable evidence of

geisha having sex with their clients, on the other hand. For example, geishas usually carry small

sheets of paper at the back of their costumes intended for cleaning up after sex. This detail finds

its way in the novel: “With [the Minister’s] jaw jutted forward, the Minister’s lower lip became

like a cup in which his saliva began to pool.” “When I’d dressed that morning, I’d tucked several

sheets of a very absorbent rice paper into the back of my obi. I hadn’t expected to need it until

afterward, when the Minister would want them for wiping himself off...now it seemed I would

need a sheet much sooner to wipe my face when his saliva spilled on to me.”67 Sayuri admittedly

has sex twice a week reluctantly with the General, and Sayuri says these are “nothing more than

66
“The idea of the geisha is frequently misunderstood in the West,” Mr. Golden said in an
interview...”Geisha are not prostitutes. They have no training about sex.” See Dinitia Smith, Man
Who Dared to Write about a Geisha’s Mind, NYTIMES, Tuesday, Dec. 29, l998, l998 WL
22339418, Section E, at 4.
67
Cited in Usborne, supra note 8, find cite in book.

23
an unpleasant twice-weekly routine.”68 Another example of Golden’s more indirect affirmation

of the geisha’s sexual activity is illustrated in the long account of the ritual of mizuage. A good

part of the novel describes the particular tradition among young geishas known as their mizuage,

or deflowering, where a rich man, like Dr. Crab, pays a good deal of money to be the lucky one

to make the geisha lose her virginity. Golden does a good job as an author to capture the duality

of the term geisha which connotes respectability and immorality.

If geisha do not engage in any sexual activity, why was this traditional ceremony of

deflowerment ever established? It is true that mizuage no longer exists as a custom among

geisha. The time gap between the events of the novel and the reality of the real geisha’s

experiences explains why Iwasaki Mineko, who rose to fame in the l960s and l970s, vehemently

denies ever having gone through such a ceremony. “The selling of her virginity, that rite of

passage, did not happen,” said the real geisha’s lawyer, Dorothy Weber, in an interview.69

Ironically, the real geisha’s complaint is a result of the author’s successful craftsmanship as a

fiction writer. He hides so well behind his narrator that the real geisha confuses her own identity

with that of the narrator, who are two different people. Whenever the narrator draws attention to

the immoral side of the geisha, the real geisha is offended. Iwasaki’s image of the geisha is

closer to that of the artisan, not the prostitute.. The real geisha’s protest is due to the author’s

artful manipulation of a disturbing tension between the geisha and the prostitute which is a

reflection of a historic reality. The the author sustains that tension delicately throughout the

68
Memoirs, at 305.
69
See Devlin Barrett, Geisha’s Revenge–Sues Author of Book on her Life, NYPOST,
April 25, 2001, at l2.

24
novel by the use of contrast, antithesis, and a panoply of rhetorical figures creating the titillating

effect of erotic ambivalence70 that unfortunately culminates in a lawsuit against him.

III. HISTORICAL AND LEGAL CONTEXT OF THE GEISHA

The Heian period, which lasted from 794 to 1195, was an age of extraordinary

promiscuity. At the height of this period, there were two types of women available to satisfy the

sexual pleasures of men: prostitutes referred to as “wandering women,” “floating women,” and

“play women” and courtesans who were cultivated, refined professionals.71 The courtesans were

skilled musicians, dancers, and singers who were often the invited guests and chosen

companions of aristocrats. These high class courtesans were the original precursors of the

geisha72.

At the turn of the seventeenth century, Kyoto had a vast entertainment district alongside

the River Kamo where women sold tea or sake in teahouses and taverns and where they would

entertain men with singing, dancing, or sexual pleasures. A century later these women would

become known as geisha. They performed lively dances accompanied by the shamisen or the

flute. The seventeenth century was the beginning of the Japanese Renaissance, and the great

70
The book is lies, all lies, “ the real geisha said in an interview given to the Sunday
London Times. “Golden has mixed up the well-respected and highly educated geisha profession
with that of common prostitutes in order to ‘spice up the story for Western audiences.’ He has
insulted all true geishas...There was no money put on virginity in my circles. The geisha world is
not a place where you sell your body.” See Cherry Norton, Betrayal of a Geisha, SUNDAY TIMES
(LONDON), April 29, 2001.
71
LESLIE DOWNER, WOMEN OF THE PLEASURE QUARTERS 29 (2001)[hereinafter Downer].
72
Id.

25
general Ieyasu Tokugawa declared himself shogun and ruler of all Japan. Shogun Ieyasu chose

as the seat of his military administration the little fishing village of Edo which will become the

great city of Tokyo. The shoguns sealed off Japan from the outside world in order to keep peace

and tranquillity at home and to ensure against a rebirth of civil war. For two centuries the

shoguns set up rigid codes of behavior with emphasis on hierarchy and respect for authority in

order to control the population and to create a well-ordered society in which there was no room

for rebellion or upheaval.73 Anyone breaking the rules was liable to execution. Only the remote

southern port of Nagasaki was open for trade with the Western world. This system of isolation

and neo-Confucianism remained in Japan until the end of the Tokugawa period in l853.

In the highly regulated Confucian society of seventeenth-century Japan, prostitution also

needed to be regulated.74 But the Shogun recognized the need for sexual satisfaction. To

reconcile these two conflicting needs, the Shogun made prostitution legal but in only if it was

practiced in one designated and enclosed area called the “pleasure quarters” . The prostitutes

were permitted to engage in sexual services only within the confines of the walled cities of

pleasure, the “bad places” that developed into a true counterculture in Japan. Prostitution was

illegal anywhere outside the walled cities. Thus, a duality about prostitution is reflected in the

legal response to the institution which considers prostitution both legal and illegal. The geisha

arose out of the rigid strictures of Confucianism, which demanded unquestioning obedience to

73
Downer, at 34.
74
See Andrew Morrison, Teen Prostitution in Japan: Regulation of Telephone Clubs, 31
VAND.J.TRANSNAT’L. L. 457 (1998) for a complete history of prostitution in Japan and the laws
enacted to prohibit this activity.

26
authority, and out of the counterculture, which was created entirely with government approval.75

The geisha was, therefore, part of the Japanese counterculture, and it is from this source that we

can trace the dubiousness of the geisha’s morality in the mind of the Japanese.

The first geisha appeared in the l600s, but they were men. They were jesters or drum

bearers who performed during the parties given by the sex professionals of the period, called the

yujo, or the women of pleasure. The yujo women were a far cry from the geisha-artiste because

their sole purpose was to provide sexual skill and excitement to needy men of the seventeenth

and eighteenth centuries.76 The tradition of the male geisha continued until l751 when the first

female geisha appeared. She was referred to as a geiko, and with her the world of the geisha

began.

The shoguns attempted legally to establish a distinction between the geisha and the

prostitute. The geisha who worked in the licensed quarters of the walled cities were forbidden to

sleep with the customers of the prostitutes or yujos.77 In l779 geisha were recognized as

practicing a distinct profession. A registry office was set up to enforce rules of conduct for the

geisha. For example, geisha were permitted to wear only simple kimono, not flamboyant or

excessively colorful kimonos. They were not permitted to wear combs or jeweled pins in their

hair. They were also not permitted to sit next to yujo’s guests or associate with the yujo’s

business, establishing what seems to be a clear distinction between the geisha and the prostitute.

However, the question of the difference between the geisha and the prostitute has always been

75
Id. at 35.
76
Dalby, at 55.
77
Dalby, at 57.

27
complicated, and Japan’s feudal government found it to be so. They made a considerable

administrative effort to preserve a distinction between the two groups of women.78 When legal

prostitution is abolished in l958, this law did not apply to geisha. The fact that many of the laws

enacted then and now did not apply to geisha is a sign that geisha are not prostitutes, at least in

the eyes of the law

In seventeenth and eighteenth century Japanese society, marriage was considered a

political arrangement having nothing to do with love. Sexual gratification was not expected to

take place within the marriage, and men were at liberty to amuse themselves in any way they

wished, as long as they did their duty toward their wife.79 In such a system it is easy to

understand why Kyoto developed into a thriving center of prostitution. Men craved the company

of women they could talk and relate to sexually. Itinerant actresses occupied that role in the

seventeenth century, and men were known to actually start fighting over the touring actresses. In

l628, after a major brawl, the shogun, refusing to tolerate any threat to public order, banned

women from performing in public. This law was difficult to enforce and had to be passed again

in l629, l630, l640, l645, l646, and l647.80 Women disappeared from the public stage for another

250 years.

These banned and now unemployed actresses and dancers were forced to take up other

work as licensed and unlicensed prostitutes or private performers for the samurai households.

One century later geisha will descend from this group of retrained and unemployed actresses

78
Dalby, at 57.
79
Id.
80
Id. at 38.

28
turned prostitutes. Kabuki theatre was also banned if it was performed by women. Consequently,

very young men under the age of fifteen, now began to perform in Kabuki theatre. The most

beautiful of these young men were also prostitutes.81

In the height of the Japanese Renaissance of the seventeenth century, called the glittering

Genroku period, merchants grew rich but the shoguns seized their wealth as soon as they earned

it. The merchants quickly developed a hedonistic attitude preferring to squander their fortune on

pleasure rather than see it stolen away by the shogun. The walled pleasure quarters, originally

segregated for purposes of control, turned into the most glamorous part of town where everyone

from samurai to the imperial princes and even the emperor himself went there for surreptitious

visits.82

The main pleasure area in the mid seventeenth century was Shimabara which offered

elegance, culture, brilliant conversation with beautiful women in an atmosphere of refinement

like the kind one could find in Louis XIV’s glittering court at Versailles. This was known as the

ukiyo or the “floating world” which has been depicted so beautifully in famous woodblock

prints of courtesans, prostitutes and later, geisha. The inhabitants of the pleasure quarters were

like caged birds, unable to leave because they knew nothing else. They were virtual slaves,

indentured to the brothel owners.83

These indentured women in the pleasure cities of Kyoto came mostly from the lower

classes. They were the beautiful children of poor agricultural families or debt-ridden townsfolk.

81
Id. at 38-39.
82
Id. at 41.
83
Id.

29
The children were procured by pimps who scoured the countryside to find suitable young

children for sex slavery. They paid the parents a sum of money for the child and resold the child

to a brothel. Since buying and selling of persons was illegal at this time, the procurers would

bind the child with a contract for a fixed period of time, usually ten years.84 For the poor parents

in impoverished agricultural villages, sending their child off to the pleasure quarters was nothing

out of the ordinary. The recruitment of children for sex slavery is still done to this day in Asia85

and is described in vivid detail in Memoirs of a Geisha. In the seventeenth and eighteenth

century, poor parents would attempt to justify the sale of their children by believing they were

giving their daughter a better chance in life, an opportunity to go to Kyoto to eat fine food and

wear fine clothes, and the luxury of being educated in the arts. The child who is sold had

absolutely no right to protest and was bound according to the Confucian code by filial duty to

her father and to her family before her own self. Girls sold to the pleasure quarters were

considered virtuous and admirable for having sacrificed themselves for their family.86

In the seventeenth century most children who were recruited against their will at

the age of six or seven ended up living in the posh quarters of Shimabara but were considered the

property of the brothel owner. Before they even arrived into the pleasure city, the children had

already incurred an enormous debt for the privilege of being abducted! To repay this debt they

would have to work night and day as soon as they are old enough to fulfill the pleasures of men.

This is the typical system of debt bondage normally associated with one of the most hideous of

84
Id. at 42.
85
Id.
86
Id.

30
all crimes known as sex trafficking.87 Initially the children work as maids, just like Chiya did in

the novel. When they grow older, and if they show promise, they become child attendants to a

courtesan who will teach them how to behave as well as develop skills in important arts such as

calligraphy, tea ceremony, and music. The courtesans also teach the young apprentice the art of

love and how to seduce men. But the key rule for any courtesan was to play at love and never

allow oneself to fall in love. At thirteen or fourteen, when the child reaches sexual maturity, the

young girl takes part in a grand celebration called mizuage, her ritual deflowerment. After this

ceremony, the young apprentice has the right to become either a second rank courtesan or a low

rank prostitute.

The sex entertainment system of the seventeenth century was not very different from the

one described in Memoirs of a Geisha. Courtesans and prostitutes were both slaves of debt and

were positioned on the same societal hierarchy with courtesans at the top and prostitutes at the

bottom Courtesans and prostitutes were both chattels to be bought and sold, and they did not

own their own bodies. Courtesans and prostitutes were part of the “floating world”of the

seventeenth century that continued into the eighteenth century and from which the geisha will

appear.

The first rank courtesans or tayu were the aristocrats of the courtesan world. They were

the concubines of the imperial princes and were permitted to come inside the palace. The top

courtesan tayus lived in the Shimabara pleasure quarters, which was also the location of the

bordellos. If a man were lucky enough to get a free day in the active life of a popular courtesan,

87
See Tiefenbrun on Trafficking, supra note 40. See also Nora V. Deimleitner, Forced
Prostitution: Naming an International Offense 18 FORDHAM INT’L L.J. 163 (1994).

31
he would first come to the bordello, be entertained by jesters and dancing girls, receive plentiful

food and drink for a hefty price, and finally catch a glimpse of the beautiful courtesan. She is

dressed in layers of luxurious kimonos and surrounded by dancing girls and children attendants.

The courtesan and her attendants would entertain the man with music, dance, poems, tea service,

and an incense ceremony. Sex was not necessarily an automatic event.88 Sex did not usually

happen until the third visit to the same courtesan. She could refuse to sleep with the customer,

but if she accepted, it would cost him about $675 in modern currency. Second rank courtesans

charged less. At Shimabara even the lowest class of prostitutes were elegant but charged much

less than courtesans. This was the sex entertainment system of the seventeenth century that bears

a striking similarity to the geisha world of the l930s and l940s described by Golden.

A new breed of woman began to appear in the eighteenth century. She was not a bird in a

gilded cage, like the courtesan, and she dressed in an understated more sophisticated manner.

She did not sell her body but sold only her arts. This was the geisha. The geisha, like the

courtesan, “played at love” but refused to fall in love. The first woman to call herself a “geisha”

appeared around l750. Her name was Kikuya and she was a prostitute who made a reputation for

herself with her shamisen-playing and singing.89 She appeared around the teahouses of

Fukagawa, across the country in Kyoto, in the walled city of Shimabara, and began to replace the

male geisha. She was an instant success and a new profession of tea-brewing women, dancing

girls, and drum-bearers was born calling themselves “geisha.” These women geisha insisted that

88
Id. at 44.
89
Id. at 103.

32
they were not prostitutes but artists.90

In l850 around the time the American commodore Matthew Perry was in Tokyo Bay,

during Japan’s closed society, there were sixty-three geisha in the town of Kagurazaka,, and

they were noted for their elegance and dancing.91 In 1869 in Yoshiwara, the legal prostitution

region of Edo which was the Shogun’s capital, there were l53 brothels, 3,289 courtesans, and

394 teahouses where the geisha entertained. 92 In the l920s at the height of the geisha era, there

were 80,000 geisha throughout the country. In Gion alone there were 2,500 geisha and l06 maiko

(geisha in training).93 The teahouses reopened after the war in l948, and there were still l,200

geisha and l60 maiko in Kyoto.

The first female geisha of the l750s were not like courtesans or prostitutes because they

were independent, smart women, who made a living by their skills, wit, and artistic talent. They

were not bound by tradition or formality, and could take sexual partners or lovers if it pleased

them. Even though geisha quarters were not in walled cities like the courtesans and prostitutes,

the geisha did tend to cluster in particular parts of town. Shimabara quickly embraced the new

geisha.94 An official ordinance was passed that required geisha to be understated. Soon geisha

became associated with greater taste than the more flamboyant courtesans. By l779 the geishas

were taking business away from the brothels. To retaliate, the brothel owners began to insist on

90
Id. at l04.
91
Id. at 63.
92
RONI NEUER AND SUSUGU YOSHIDA, UKIYO-E: 250 YEARS OF JAPANESE ART 23 (l979).
93
Id. at 79.
94
Id. at 104.

33
enforcement of the rule that geisha do not engage in prostitution.

In l770 a man called Shoroku, who was himself a brothel owner, established rules of

conduct to distinguish the geisha from the courtesans and prostitutes and to ensure that the

geisha did not steal their customers.95 Geisha were to be recruited from the less beautiful women.

They had to wear a severe kimono and a very simple hairstyle. They were to work in twos or

threes and never be alone in order to discourage propositioning of sex. They were not to sit too

close to guests. If a geisha was found to contravene the regulations, she was liable to lose her

license for several days or permanently. These constraints applied only to the geisha who worked

in the pleasure quarters.96

Notwithstanding these rules, if a geisha chose to enter into a sexual relationship with a

client, that was legally classified as “misconduct” and not “prostitution” Such activities were the

free choice of the geisha. Prostitution was never something geisha were forced to do.97 The

geisha were independent, and they had the right to choose to augment their income with

prostitution.98 In the l750s a great economic slowdown was underway. Despite the economic

woes of the rest of the country, the golden age for pleasure was still in Edo and in Kyoto. At

Yoshiwara and the other government recognized licensed quarters (two hundred throughout

Japan), partying never stopped for men who had many choices for entertainment. A man could

go to the unlicensed quarters to experience the risk of illegality, enjoy the entertainment in the

95
Id. at l07.
96
Id. at l07.
97
Id.
98
Id. at l08.

34
legal, licensed quarters, and pick from among courtesans, geisha, and prostitutes.99

Japan had been protected from foreign influences for almost a quarter of a millenium

as a result of the isolation policies of the shogun period. But around the middle of the l9th

century a serious change occurred. The Yoshiwara courtesans and prostitutes began to decline in

popularity, and the balance of trade in human cargo had shifted to the women of Fukagawa and

Gion rather than those of Shimabara. An open atmosphere of lasciviousness existed in the

pleasure districts in the early nineteenth century and provoked the government in 1841 to pass a

series of edicts known as the Tempo Reforms in order to remedy the problem of public

morality.100 Several thousands of prostitutes and geisha were rounded up from the unlicensed

districts and dumped into Yoshiwara. In contrast to the prostitutes, geisha were allowed to

return to their work so long as they promised to restrict their activities to music and dance. Thus,

for the first time the law of l841 recognized the difference between geisha and prostitutes101.

The foreigners actually arrived in Japan in l854 in the form of Commodore Perry and

his infamous black ships. The coming of the barbarians threw everything into chaos. Samurai

were useless against the might of the foreigner’s warships. Japan had no option but to sign a

treaty opening two ports to American ships. The Westerners poured in to populate the foreign

settlements in the country’s growing number of treaty ports. American diplomats, missionaries,

scholars, misfits, and sailors all had heard and were anxious to partake of the legendary geisha

and of the walled city of delights in Yoshiwara.. John Luther Long’s tragic tale written in l903

99
Id. at 111.
100
Dazby, at 60.
101
Id. at 140.

35
was about a geisha named Madama Butterfly who was pining away for the caddish Lieutenant

Pinkerton. Madama Butterfly was the kind of heroine that Victorian readers were waiting for, the

sweet, gentle Japanese child-women who gave themselves willingly to Western men.102 Puccini

immortalized the Western myth of the gentle geisha in his opera Madame Butterfly in l904.

Puccini, introduces the flavor of the oriental world into his wonderful music and into the Italian

language in much the way same way that Golden, writing in English, creates an aura of the

oriental by exotic turns of phrase, unusual images, and the flamboyant use of simile.

The Japanese were horrified at the sight of so many foreigners in their protected land.

To recapture the lost stability of their years in isolation, the Japanese decided to oust the weak

shogun and return the emperor to his divinely appointed place at the heart of the nation. The

shogun’s men sought pleasure in Pontocho on the other side of the river from Gion. Everyone

else went to Gion for their geisha. Finally in l868 the old emperor died and was succeeded by his

son, Mutsuhito, known to history as Emperor Meiji. During the year l of the Meiji Era, Japan

saw the end of the shoguns. Thereafter, the emperor would be the titular head as well as the

figure head of the nation. Kido, one of the most powerful men in the Meiji administration,

actually married his geisha lover. Thus, a Gion geisha rose to the height of Japanese high society

and was recognized as the woman behind one of the most powerful men of the realm.

Traditionally Japan’s prime ministers keep geisha mistresses. In the years to come and

especially in the l920s,103 these same geisha who sprang from Japan’s seedy counter culture,

would take a place at the forefront of society as trend setters, fashion leaders, companions and

102
Id. at 143.
103
Id. at l47.

36
confidantes of powerful men.

The golden age of the geisha is in l860. The fact that Japan had a system of legalized

prostitution at that time raised Victorian eyebrows and created doubts in the mind of the

foreigners as to how civilized this nation really was.104 And yet, looking at the Japanese licensed

quarters of the nineteenth century, one can also see a type of civility and concern for cultural

sophistication that matched only the Salons of seventeenth-century France. But a major event

occurred in l872 that changed the course of the rise of geisha power and influence. In June l872,

a Peruvian ship, the Maria Luz, dropped anchor in Yokohama Harbor for repairs. The ship was

carrying a cargo of 230 Chinese slaves. This created an international uproar, and the captain of

the ship was arrested and tried. The slaves were finally declared free and were sent back to Hong

Kong. During this episode the Peruvians let everyone know that the Japanese also trafficked in

slaves–namely the women of the Yoshiwara. This was not exactly correct because the sale of

human beings had been declared illegal as early as l612 in Japan. It is for that reason that

services by prostitutes and courtesans in Yoshiwara were know as “term employment.”

Nevertheless, these women were not free to leave the employment area or change jobs. The

Meiji government, embarrassed about what the employment conditions of the geisha, prostitutes

and courtesans looked like to the Western powers , decided to make Japan appear as “civilized”

as any other Western country. Therefore, four months after the Maria Luz incident, the Meiji

government passed the l872 Prostitute and Geisha Emancipation Act, prohibiting the sale and

trade of human beings.105

104
Dalby, at 63.
105
Id. at l50.

37
 The l872 Prostitute and Geisha Emancipation Act recognized that “prostitutes and geisha

have lost their human rights”and should not be subject to the age-old practice of debt bondage.

“Prostitutes and geisha ...are treated no different from cows and horses. Human beings cannot

logically demand payment of obligations from cows and horses. Therefore, the said prostitutes

and geisha should not pay debts or the balance of installments.”106 Because of the association of

women with cows and horses, this Act is commonly referred to as the Cattle Release Act of l872.

The most important provision of the Act includes the cancellation of all debts of geisha or

prostitutes to their houses.107 But since geisha were not in the same state of bondage as many

prostitutes, this law was less consequential to geisha. Employment contracts for apprentices

were limited to seven years and subject to renewal only by agreement of both parties. The city

governments acquired the right to license and register any woman working as a geisha or

prostitute. Thus, geisha now had the official right to work but she had to be licensed. Geisha

wanting to pursue their profession registered themselves in City Hall. After l872 the prostitutes

who actually wanted to continue their work had to obtain a license, and geisha who also

practiced as prostitutes had to have two licenses, one for entertainment (“gei”) and one for the

sale of sex.108 The geisha continued to flourish, despite the l872 Cattle Release Act. Geisha

actually stood in line at Kyoto City Hall to buy their two licenses, one for sex and the other for

entertainment.109

106
Id. at l50.
107
Dalby, at 65.
108
Id. at l50.
109
Id. at l85.

38
 The effect of the l872 Emancipation Act was devastating to the trade in geisha and

prostitutes. It was clearly not an Anti-Prostitution or Anti-Geisha Act, but it created a highly

regulated government-controlled profession requiring licenses. The name of the Act and the

word “emancipation” clearly identified the practice of prostitution and geisha as slavery. Geisha

who had been forceably recruited and abducted into the geisha houses were permitted to return

home to their parents, but many did not want to return. Many prostitutes went home and brothels

were forced to close. But brothels quickly reopened under the name of “rental parlors.” Prior to

the Emancipation Act there were 5, 759 prostitutes and 280 geisha in seven licensed districts.

After l872 there were only l,367 prostitutes, but the number of geisha increased to 417,110 proof

again of the difference between geisha and prostitutes.

In l874 the local government responded to the geisha’s desire to work by modifying the

l872 edict. Geisha were clearly permitted to continue to work. However, a monthly tax was

imposed on their wages which was to be used for the financing of a Women’s Handicraft

Workshop where the geisha were taught the practical skills to enable them to find other work.

Classes were compulsory, and if the geisha missed classes, she was not permitted to do her

geisha work.111 The reformers of the new Meiji government, seeking to become Westernized,

instituted these compulsory workshops for geisha in order to rehabilitate them and force them to

learn a decent and accepted skill. They were taught spinning and weaving or reading,

accounting, dancing or music. Attendance was mandatory at first, but when it became optional,

few if any geisha ever attended.

110
Id. at 150.
111
Dalby, at 65.

39
 Geisha developed into political supporters and activists. In l904 the Japanese

declared war on Russia, and the geisha organized themselves at this time into a National

Conference of the Confederation of Geisha Houses in order to coordinate their war support

activities.112 The Confederation was a form of self regulation. The Confederation formalized

rules of conduct for geisha, set a standard for the profession, and by common consent, had the

power to enforce sanctions for transgressions. A charter with twelve articles was drawn up, and

the board’s approval would be required for newly entering geisha. Any geisha guilty of

misconduct could be expelled by the board. The National Confederation of Geisha Houses was a

professional guild organization, established in order to fix codes of conduct and standards for the

profession.113 The effectiveness of the Confederation began to decrease in the l920s because of

the increase in the numbers of geisha. In l920 there were about ten thousand geisha, compared

to l905 when there were only two thousand three hundred geisha in Tokyo.114

The popularity of the geisha grew in the l920s with Japan’s exposure to the Western

world. In the l920s the Prince of Wales and other royalty became fascinated with the geisha.

Originally the geisha were counter-cultural heroines on the fringe of society born out of the

world of prostitutes, and now they were being touted as entertainers for visiting royalty. In l920

it was the geisha, not the prostitutes, who were the people of the “flower and willow world.”

. Cafes with hostesses started to appear in prewar Japan. As the cafes grew

in Japan so did the numbers of hostesses, and the result was devastating for the geishas who

112
Dalby, at 70.
113
Dalby, at 71.
114
Dalby, at 71.

40
could not find customers willing to pay their hefty price. By l934 there were over l00,000 café

girls to 72,000 geisha.115 At this point the geisha realized that they had to rethink their image and

their place in society. They were clearly not prostitutes. At this point the geisha were considered

the “grand ladies of Tokyo and Kyoto”116 They were also no longer part of the counterculture

because they were the fashion plates and trend setters of society. The geisha questioned

themselves and wondered if they should modernize, wear Western clothes, give up the sacred

shamisen and learn the piano, go to the university and become really educated to be able to keep

up conversations with the rich and powerful? This is the era in which Nitta Sayuri lived and

worked as geisha.

In December l941 Japan launched a surprise attack on Pearl Harbor and the retaliatory

bombing raids by American planes came the following April. Tokyo’s 9000 geisha continued to

entertain even though they were burdened by a government tax imposed on luxurious activities.

The military continued to party at teahouses in the spring of l943 when everyone else was

rationing. But soon the geisha had to leave because war hit everyone in Japan very hard by l944.

On March 4, l944 it was declared that all restaurants and teahouses are to be banned. Geisha

were not yet banned, but they were moving into other trades for want of clients.

When the war was finally over, General Douglas MacArthur arrived in Japan with the

American and other Allied occupation forces. The few women who remained in the cities,

whether they were geisha, prostitutes or simply destitute women and widows, stayed alive by

sexually servicing the Allied forces army men. The Recreation and Amusement Association, set

115
Id. at 194.
116
Id.

41
up to entertain the GIs in Japan, was coined “the world’s biggest white-slave traffic combine.”117

General MacArthur was outraged by this dangerous and unhealthy trade. He declared all brothels

off limits to GIs and issued a directive banning contractual prostitution. One year later in l947

the Americans drafted an imperial edict118outlawing officially sanctioned prostitution. But this

law, like the l872 Emancipation Act, was unenforceable.

As a result of the ban on prostitution in l947, the government was unable to regulate and

control the activities of the prostitutes. It is important to note that geishas were excluded from

the l947 directive and the imperial edict banning prostitution. On occasion top American officers

enjoyed geisha parties.119 During this period of the ban on prostitution, owners of bordellos

called themselves “special purveyors of beverages” and women who worked in the bordellos

were called euphemistically “waitresses.” Even though the l947 law required that the waitresses

be over l8 and free to leave whenever they wish, these women were often older than l8 and

confined by force to the work place. Since the government could not regulate prostitution, the

international organized crime networks like the yakuza took over. The yakuza started to protect

the bordello owners and provide assurances by physical force that the women would not run off

without repaying their debts. Basically, when prostitution was outlawed, the numbers of

prostitutes declined but the working conditions got much worse for both the existing geisha and

prostitutes. All women from hostesses at bars, cabarets, and dance halls to whores, prostitutes

and geishas were referred to disparagingly as “geisha gals”. This catch-all term for anyone of

117
Id. at 204.
118
Cite from Morrison, supra note , at .
119
Id. at 207.

42
dubious morality was used widely during the post war period in Japan and accounts for some of

the reasons why the geisha’s reputation is fraught with contradiction.

The war caused the geisha to practically disappear, and their build-up in numbers and

prosperity was gradual. By l947 there were l,695 geisha in Tokyo and 2,478 in all of Japan.120

During the seven years in which the Americans and allied forces occupied Japan, a new

constitution was drafted in l947121 recognizing men and women as equal in politics, law, and

education. This equality was utterly revolutionary for the Japanese society. After the war, many

things changed in Japan. Public kissing, for example, was introduced for the first time. Geisha

returned to Japan dressed in their usual exquisite kimonos signifying the old traditional Japanese

values. The sight of a geisha must have pleased the westernized Japanese who were quite

fearful of losing their identity to the conquering foreigners.

The geisha world thrived until l958 when an important law, Showa 33,122 was passed.

The l958 law ended licensed prostitution and many of the practices associated with prostitution

such as “mirare.” This was the practice of making four or five maiko or geisha apprentices

appear at the teahouse for the sole purpose of “being seen”by the customer who would then

choose one of the four with which he would have sex.123 In theory the geisha had the right to

refuse the customer, but in practice the maiko were too naive to say no. The Showa 33 law of

l958 also outlawed the practice of “sleeping over.” The customers very much enjoyed sleeping

120
Id. at 207.
121
Cite Japanese Constitution of l947. See Morrison, supra note , at .
122
Cite l958 AntiProstitution law. See Morrison for cite.
123
Id. at 134.

43
next to several maiko and being surrounded by more than one woman in bed. But the rule in

“sleeping over” was no touching.124 The law of l958 also outlawed the deflowerment ceremony

and the horrifying practice of debt bondage. As a result of the serious constraints which the law

of l958 placed on the fundamental practices of the geisha tradition, by l999 there were just l95

geisha and 55 maiko left, of whom 90 geisha and 22 maiko were in Gion. The dwindling

numbers of geisha that continue the tradition today in Japan have a union to protect them.125

The fact that the geisha were exempted from the l958 Anti-Prostitution Law gave them

more respectability in the society. Nevertheless, ambivalence towards the geisha remains to this

day.126After the l958 bill was passed the practice of child recruitment into prostitution and the

life of the geisha still continued. As late as the mid-seventies children in Japan from poor rural

villages were sold by their parents only to end up as maidservants in geisha houses. This practice

would change only when Japan started to experience great prosperity.127 The l958 law did stop

the practice of deflowerment. The institution of compulsory education for all children up to the

age of fifteen greatly hampered the geisha tradition. Normally a geisha would begin dance

classes at the age of six and become an adult geisha at age fifteen after years of apprenticeship

and training.

Under the reign of Emperor Hirohita from l965-l975 Japan surged into the modern world

financially and technologically. In this new age of modernity the geisha continued to flourish.

124
Id. at l36.
125
Id. at l71.
126
Id. at 211.
127
Id. at 211-212.

44
There were l7,000 geisha in Japan by the mid-l970s. The decline began in l973 around the time

of the oil crisis. A new world of easy money, teenage prostitution,128 host clubs, telephone clubs,

and private golf clubs replaced the teahouses, and the geisha started to lose importance.

Throughout its history the growth and decline of the precious flower and willow world of

the geisha has depended mostly on the state of the country’s finances and secondarily on laws

passed to regulate the profession. The laws banning prostitution and emancipating geisha have

been notoriously unenforcable. Japan’s bubble economy was deflated in the l990s and so has the

population of geisha. But the geisha will return, perhaps not in the same great numbers as before,

but they will return because they represent “the epitome of Japanese tradition.”129 Geisha are

guardians of old world values that traditional Japanese hold sacred. Geisha remain as the bearers

of Japanese identity in a changing, integrating world. What is most sacred in the geisha tradition

is the fundamental code of silence. It is generally accepted that only a low grade geisha would

talk about her experiences and break this code of silence. The geisha world remains secret and

impenetrable...until Iwasaki Mineko, one of the most prosperous geishas of the l960s and l970s,

curiously decides to divulge these precious secrets to Arthur Golden who will recreate them in

his book, Memoirs of a Geisha.

IV. SUBTEXT OF THE NARRATIVE: SEX TRAFFICKING AND THE GEISHA

128
See Morrison, supra note , for a discussion of telephone clubs and the role they play
in the increase of teenage prostitution in Japan.
129
LIZA DALBY, GEISHA 20 (1983)

45
 A. Definition of sex trafficking and its Relation to Geisha

Is the recruitment of geisha a variant of sex trafficking that should be outlawed?

Trafficking is defined as the recruitment, abduction transport, harboring, transfer, sale, or receipt

of persons within national or across international borders, through the use of fraud, coercion,

force, or kidnapping, for the purposes of placing persons in situations of slavery-like conditions,

forced labor, or services, domestic servitude, bonded sweatshop labor or other debt bondage.”130

Recruitment by force or fraud of young girls like Chiyo-chan to work as geishas within Japan

seems to fit the definition of sex trafficking quite comfortably.

Every year more than 2,000,000131 women around the world are bought and sold for the

purpose of sexual exploitation. Women are trafficked by fraud and deception from relatively

poor or war-torn regions of origin to relatively rich destinations. Although there are many

different methods of trafficking, the common thread is that a woman is duped into believing she

will find prosperity or simply a better life by taking a fraudulent offer from a trafficker in

disguise. One of the worst case scenarios is the sale of a young, impoverished, naive child to

traffickers by her own parents for money.132 This is precisely what happened to Chiyo-chan and

130
Amy O’Neill Richard, CIA REPORT, Center for the Study of Intelligence,
International Trafficking in Women to the United States: A Contemporary Manifestation of
Slavery and Organized Crime v(April 2000)[hereinafter CIA REPORT].
131
Numbers are difficult to verify because of the secrecy of the activity. Some have
reported as many as 4,000,000 women trafficked each year. See Becky Young, Trafficking of
Humans Across United States Borders: How United States Laws Can be Used to Punish
Traffickers and Protect Victims. l3 GEO.IMMIGR.L.J. 73 (1998)
132
See Sarah Shannon, Prostitution and the Mafia: The Involvement of Organized Crime
inthe Global Sex Trade, in ILLEGAL IMMIGRATION AND COMMERCIAL SEX: THE NEW SLAVE
TRADE 119, 122 (Phil Williams ed., 1999)[hereinafter Shannon].

46
her sister Satsu whose father sold his two little girls, who he believed would find a better life by

being “adopted” by the rich Mr. Tanaka.. Maybe their father just wanted to be rid of his two girl

children because his wife had just died and he is despondent. Whatever the motive, the practice

of selling one’s children is intolerable and must be eradicated in Japan and elsewhere.

The element of “force” and the related concept of “consent” are necessary components to

the definition of trafficking.133 If the trafficker can present evidence that the woman consented to

or was not forced into the act of prostitution or sex work of any kind, the victim may not be

successful in proving that a crime of sex trafficking was actually committed. It is precisely

because of the insistence on proof of force and lack of consent that many international

conventions134 protecting women against sex trafficking have not been enforced. It is well

accepted now that the use of force in sex trafficking can refer to either physical or psychological

force which occurs when someone is held against his or her will. Chiyo was clearly a victim of

both physical and psychological force each time she was beaten, pinched, threatened, humiliated

and disparaged by Mrs. Fidget, Mother, Auntie, Hatsumomo, and many others in the geisha

house. There is no possible claim that Chiyo actually consented to her sale and forced labor.

Chiyo spent a good part of the novel trying to escape the geisha house. In her desperate attempt

to find her sister, Chiyo even manages to fall off a roof and break her arm and is beaten for this

133
The Sex Trade: Trafficking of Women and Children in Europe and the United States:
Hearing Before the Comm’n On Security and Cooperation in Europe, 106th Cong. 21
(1999)[hereinafter The Sex Trade Hearing](written submission of Dr. Laura J. Lederer, Director,
The Protection Project [hereinafter Lederer Protection Project], at 54, 55.
134
See list in Exhibit A attached to this Article of more than 20 International Conventions
to Eradicate Sex Trafficking and other Declarations, Treaties, U.N. Resolutions and Reports
Condemning Slavery, Violence Against Women, and Other Elements of Trafficking.

47
attempted escape.

It is arguable that consent is not a probative issue in the definition of sex trafficking

because one cannot legally consent to slavery, and sex trafficking is a variant of slavery.

Recruiting young women by force into the life of a geisha is slavery. Multilateral treaties and

customary international law135 condemn slavery. Since its inception, the United Nations has

always been committed to the abolition or elimination of slavery.136 Recently on November l4,

2000 the United Nations General Assembly adopted the U.N. Convention Against Transnational

Organized Crime and the Protocol to Prevent, Suppress, and Punish Trafficking in Persons,

Especially Women and Children [U.N. Protocol to Prevent Trafficking].137Despite a multitude of

U.N. recommendations, decisions, and other pronouncements,138 slavery is not dead, and the

traffic and sale of human beings for sexual exploitation are flourishing. There is no doubt that

Chiyo and Satsu are victims of slavery, and Golden does not hesitate to use the word “slavery”

several times in the novel when describing their plight.

135
A. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the
Prohibition of Slavery and the Slave Trade Under Customary International Law,” 39
VA.J.INT’L. L. 303 (1999)[hereinafter Rassam].
136
Id. at 304.
137
Convention Against Transnational Organized Crime; Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children: and Protocol Against the
Smuggling of Migrants by Land, Sea and Air, G.A. Res. 25, U.N. GAOR, 55th Sess., U.N. Doc.
A/RES/55/25 (2000). The text of the Convention and Protocols may be obtained from the U.N.
Office for Drug Control and Crime Prevention’s website (http://www.odccp.org/palermo).The
texts of the Convention and the Protocols are annexed to the Draft Resolution contained in the
November 2,2000 Report by the Ad Hoc Committee (U.N. Doc. A/55/383) to the U.N. General
Assembly.
138
See my article, Sex Trafficking, for a complete discussion of the great number of
international human rights laws and humanitarian rights laws that have been passed and
unenforced with respect to the outlawing of sex trafficking.

48
 If what happened to Chiyo and Satsu in the novel is “slavery” and “sex trafficking,” why

does the international legal system allow the geisha tradition to continue? The answer lay in the

difference between the geisha as artisan or courtesan and the association of the geisha with the

world of prostitution.

B. Feminist Legal Theory on Sex Trafficking

Feminist legal scholars writing about sex trafficking typically fall into two distinct

categories. The neo-abolitionists139 condemn both voluntary and involuntary prostitution on the

grounds that prostitution is never really entirely consensual. They claim that legalizing

prostitution would justify sexual exploitation and reduce all women to nothing more than pure

sex objects. The Coalition Against Trafficking in Women (CATW) is the organization that

supports this position and is vigorously opposed to the legalization of prostitution. A second

group of feminist scholars accepts the right of women to choose prostitution as a career and

condemns sex trafficking only when the career choice is non voluntary or when the conditions

imposed on the consensual prostitute are inhumane and unanticipated. This group of feminist

scholars clearly does not wish to place a value judgement on women who choose prostitution for

their livelihood. The Global Alliance Against Trafficking in Women is the primary exponent of

this feminist position

139
See e.g. KATHLEEN BARRY, FEMALE SEXUAL SLAVERY (1979). Kathleen Barry is also
the founder of The Coalition Against Trafficking in Women (CATW) that believes that
prostitution is violence against women, sexual exploitation, and an institution that victimizes all
women. These neo-abolitionists claim that prostitution, if legalized, merely justifies the sale of
women and reduces all women to objects of sex.

49
 We have demonstrated that although there is a clear distinction in the Japanese law

between the geisha and the prostitute, in practice there are similarities in the nature of the

services they both perform, the type of customers they service, the physical location of their

work places, and the association of immorality in the mind of the average person in Japan when

he or she contemplates both the geisha and the prostitute. No mother in Japan when asked would

ever want her own daughter to be a geisha, even though it is touted as a respectable profession

and a legitimate form of entertainment by artists. There is a connotation of dubious morality

associated with the services performed by both the geisha and the prostitute, and history has

proven that legalizing these institutions will not cure that negative mind set.

The more interesting and debatable question is whether legalizing prostitution in Japan

will aid in the eradication of sex trafficking and the recruitment of little children against their

will to work as slaves in geisha houses? When the l958 Anti-Prostitution Law was passed in

Japan, prostitution decreased, but the numbers of geishas did not depreciably decrease because

the geisha were exempt from this law. In fact, the l960s and l970s were a heyday for geishas.

But should the evil practice of child recruitment, which is an integral part of geisha

tradition, remain unpunished by law? The recruitment of children against their will persisted in

Japan until very recently when the economy improved. However, when the Japanese economy

fails, the heinous practice of child recruitment from poor agricultural regions into brothels and

geisha houses in relatively rich cities may rear its ugly head again. The duality in the mind of the

Japanese vis a vis the recognized need for sexual satisfaction outside the marriage and the need

for government regulation of prostitution and sex service workers of all kinds has always

existed. Even when the l872 Emancipation of Prostitutes and Geisha Act was passed, this law

50
permitted geisha to work if they had a license, and only in designated areas. So prostitution and

the geisha tradition are and have been since the nineteenth century both legal and illegal in

Japan. This same duality in the law exists for geisha even after the passage of the l958 Anti-

Prostitution Law. Thus, the Japanese legal system permits geisha to legally perform their

services including child recruitment which will only be stopped if an anti-geisha law is passed.

This is highly unlikely because the Japanese respect the geisha tradition as much as they revile it

as sex slavery.

The recruitment of children against their will is a part of the geisha tradition that must be

eradicated by the force of law. The physical and psychological force used on geisha trainees

must also be stopped by law. But that does not mean that the geisha as an institution needs to be

outlawed entirely. In fact, to do so would be a loss for Japan. In the past few years the geisha

tradition, its cultural sophistication, fashionable trend setting, and promotion of the arts, has

seen a dramatic decline in Japan because of changes in the cultural tastes of the people, not

because of the legal climate. Legalizing prostitution would only facilitate the recruitment of

children for the geisha houses. Legalizing geisha would also have the same deleterious effect and

justify the evil aspects of this tradition.

C. Cultural Relativism and Geisha Tradition

Why should we Western people sit in judgment of an age old tradition that is

considered the bastion of Japanese culture and tradition? To do so is a violation of cultural

51
relativism. Critical race theorists140 have focused on the difficult question of when cultural

relativism can justify egregious violations of human rights, like stove burning, acid throwing,

female genital mutilation, and murdering girl babies.141 There is no doubt that Western countries

need to respect cultural norms practiced in other countries, even if those norms differ from our

own. But if sex trafficking and the practice of recruiting children for training as geisha are a

variant of slave trade, can one still argue persuasively that geisha is simply a cultural norm

accepted in Japan which must be respected as such under the theory of cultural relativism?142 Sex

trafficking, like slave trade, is a universal crime prohibited by the principle of jus cogens

provided in Articles 53 and 64 of the Vienna Convention on the Law of Treaties. 143 Recruiting

children for labor in geisha houses simply cannot be excused by the argument of cultural

relativism because, like murdering girl babies, it is a universal crime that is universally

condemned. Parents who sell their girl babies for money into the sex work industry, and

traffickers like Mr. Tanaka who snare the poverty-stricken girls into a world of forced

prostitution, are frowned upon in Japan. Child recruitment for forced sex work should not be

140
E.g. Hope Lewis, Between Irua and “Female Genital Mutilation:” Feminist Human
Rights Discourse and the Cultural Divide, in CRITICAL RACE FEMINISM 361 (Adrien Katherine
Wing ed., l997).
141
Cite from Critical Race book. See my article to find cite..
142
See Isabelle R. Gunning, Arrogant Perception, World Traveling, and Multicultural
Feminism: The Case of Female Genital Surgeries, in GLOBAL CRITICAL RACE FEMINISM: AN
INTERNATIONAL READER 352,357 (Adrien Katherine Wing ed., 2000) [hereinafter Isabelle
Gunning].
143
Vienna Convention on the Law of Treaties, opened for signature, May 23, l969, ll55
U.N.T.S. 331, 344, art. 53 (defining jus cogens norms as principles “accepted and recognized by
the international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law
having the same character”).

52
viewed as a cultural practice but rather as a universal crime as serious as slave trade.

Traffickers in Japan successfully lure young women into geisha work because the women

are victims of poverty, of the social practice that marginalizes women in Japan, of the failure to

place a value on traditional women’s work, and of the lack of real educational and employment

opportunities for women. When Japan passed a law making education for all children

compulsory, this law put a severe damper on the indecent recruitment of young children into

geisha work. Young women lured into geisha work are victims of a host of complex social,

cultural, economic and political factors. As Japan’s infrastructure changes in response to the ebb

and flow of its economy, so will the popularity of the geisha tradition change.

V. POST-TEXT: THE COMPLAINT BY THE GEISHA AGAINST THE AUTHOR AND

PUBLISHER

A. Plaintiff’s Claims.

On April 22, 2001 Mineko Iwasaki filed a complaint against Arthur Golden, Random

House, Inc. and Alfred A. Knopf, a division of Random House, Inc. in the United States District

Court of the Southern District of New York. It is an action for breach of contract, quantum

meruit and unjust enrichment under the laws of the State of New York and the laws of Japan, and

for an accounting under the Copyright Laws of the United States l7 U.S.C. Section l0l, et seq.

This is an unusual lawsuit because it involves a work of fiction rather than fact, and the Plaintiff

bases her claims as much on the promotion of the work as on the work itself. When interviewed,

53
the attorney for the Plaintiff and the spokesman for Random House, Inc. could not cite any

precedent for such a case,144 even though there are several cases clearly on point regarding

certain issues raised in the Complaint.145 This is truly an unusual case because normally the

author indemnifies the publisher for claims of defamation and right to privacy, but in this case

the publishers are “vigorously defending” Golden and his book146 based on the their firm belief

that Plaintiff’s claims are baseless.

Jurisdiction of the court is predicated upon the existence of a federal question, the

144
Mark Feeney, Geisha Sues Golden Over 1997 Bestseller, THE BOSTON GLOBE, April
26, 2001.
145
Mathews, et al. v Wozencraft, Random House, Inc., et al. U.S. Court of Appeals, Fifth
Circuit (March 3, l994), 15 F.3d 432. In this case a former undercover narcotics officer filed suit
alleging breach of contrat, misappropriation, and invasion of privacy against his former wife and
against the publisher of his wife’s book, which happens to be Random House, the same publisher
who is the defendant in the geisha case. The Plaintiff claims that when his former wife wrote a
book about his life story, she was misappropriating and violating his right to privacy. She was
cashing in on the goodwill associated with the officer’s name. Random House won this case
because the Texas court held that a life story was not a “name or likeness” under Texas
misappropriation law. More importantly to our purposes in the geisha case, the Texas court held
that appropriation could not occur through a fictionalized account of an officer’s life under the
“false light doctrine.” This provision is applicable to the geisha case because the real geisha is
claiming that the author misappropriated and painted her in a false light when the author used her
copyrighted taped words. According to Mathews the author Golden has created a fictionalized
account and therefore Golden is not liable. The novel falls within First Amendment protection
for fair use of information in the private domain. Like Iwasaki, who is claiming ownership rights
to Golden’s book, the Plaintiff in Mathews, claimed that he had ownership rights in his former
wife’s fictionalized account of events, and that he received no compensation for the defendant’s
use, portrayal , or promotion of his likeness in the book and in the movie. The district court
granted summary judgment on Matthews’ appropriation claim because Texas law does not
recognize a cause of action for appropriation of one’s life story and because if it did , there
would be an exception for biographies and “fictionalized biographies.” The geisha case in the
New York court is a “fictionalized biography,” and if the New York court follows Mathews, the
geisha will not succeed on the merits of her appropriation claim.
146
Elizabeth Mehren, Geisha Charges Writer’s Fiction is her Truth, LOS ANGELES TIMES,
April 26, 2001.

54
diversity of the parties and a dispute arising between a U.S. citizen and a citizen of a foreign

state, the dollar amount of the claim for damages which is greater than $75,000 and less than

$l0,000,000, and a copyright jurisdictional claim, as set forth in 28 U.S.C. Sections l331,

1332(2). 1338 (a). The Defendants reside or transact business in New York and in the Southern

District which justifies the venue. The Plaintiff, Mineko Iwasaki, resides in Kyoto, Japan and is a

citizen and resident of Japan. The Defendant, Arthur Golden, resides in Brookline,

Massachusetts and transacts business in the Southern District of New York. The other two

Defendants, Random House, Inc. and Alfred A. Knopf, are New York corporations with their

principal place of business in New York.

Plaintiff contends that she is a well-known and well-respected business person in Japan,

and until her retirement in l980 Ms. Iwasaki was one of the most famous geisha in Kyoto’s Gion

district. Gion is one of the most prestigious geisha districts in all of Japa.n. These background

facts in the Complaint probably contain the seeds of Plaintiff’s argument that she is a public

figure and has a property right147 to her name and likeness which Golden misappropriated when

he acknowledged her full name both in the book and on promotional tours and when he created a

likeness of Iwasaki Mineko in the form of the narrator Sayuri.

Plaintiff affirms that she is the source of the background for Arthur Golden’s book

147
RICHARD POSNER, ECONOMIC ANALYSIS OF LAW, Section 3.3, 43 (4th ed. 1992). Judge
Posner discusses the tort of misappropriations and the right to grant celebrities a property right to
ration the use of their names in order to maximize their value over time. The question is whether
there is anything unique about Iwasaki Mineko’s name or likeness that creates value for Golden
to appropriate. Her name and likeness may have value only in Japan, but certainly not in the
United States and Europe. Golden should be win summary judgement on this claim because of
free speech and public domain defenses. See Matthews, et al. v Wozencraft, Random House,
Inc., et al. U.S. Court of Appeals, Fifth Circuit, (March 3, l994), l5 F. 3d 432.

55
Memoirs of a Geisha and that the author acknowledged his debt to her directly in the book and

during interviews and speaking engagements when he sought to publicize the book. This fact

also cloaks Plaintiff’s misappropriation claim which will appear in the form of “unjust

enrichment,”and her claim of co-authorship to Golden’s novel. The argument is that since the

author merely put down on paper the actual words she gave him on tape and in transcription, she

is the co-author of the novel and should be compensated accordingly.

Plaintiff also contends that the Defendants promoted and exploited the unprecedented

access that Ms. Iwasaki afforded Mr. Golden to the unknown world of the geisha and to Gion’s

history. Plaintiff will probably base her claim for co-authorship of the novel and unjust

enrichment on these facts. Her claim for co-authorship is unlikely to succeed in view of the

holdings in Matthews148 and Estate of Hemingway. 149

Plaintiff claims that when she first met Golden in l992 she agreed to be interviewed about

her geisha life in Gion and her family’s experiences only if Golden would agree to comply with

certain express conditions. The first condition was complete anonymity for herself and her

family. The second condition was total confidentiality regarding the personal stories and

information she related to him about her life and career as well as her family’s experiences.

These facts form the basis of a claim for breach of contract and right to privacy.

Plaintiff claims that Mr. Golden represented to her that her collaboration in the book was

148
See discussion supra note l45 on the claim by Plaintiff of co-authorship to a
fictionalized biography, which was rejected by the Matthews court..
149
See supra text accompanying footnotes to for discussion of the Estate of
Hemingway vs. Random House case on the claim of co-authorship which was rejected by the
court.

56
only for the purpose of “fact checking” a certain novel that he had already written. The fact is

that in the light of Plaintiff’s revelations, Mr. Golden actually abandoned this earlier book and

wrote an entirely new novel largely based on Ms. Iwasaki’s testimony. These facts are the basis

of Plaintiff’s argument that the author breached an oral confidentiality agreement that she

claims exists.

Pursuant to an express verbal agreement between Plaintiff and Defendant, Ms. Iwasaki

claims she permitted Arthur Golden to come to her home in New York and to tape her

recollections of Gion life for almost two weeks from May l0, l992 through May 23, l992. The

interviews she accorded him averaged more than l0 hours per day or involved more than one

hundred hours of taping. These facts are the basis of a claim for quantum meruit.

Plaintiff claims that Defendant breached his express promises to Ms. Iwasaki and

disparaged her reputation in his public promotions of the book. He breached his promises by

telling lies about her. Plaintiff claims that Golden stated during public promotions of the book

that Ms. Iwasaki was sold into the geisha world as a child by her parents, and that her virginity

was auctioned to the highest bidder when she came out as a geisha. Plaintiff argues that these

two statements are untrue about her and that Golden falsely represented these statements as facts.

Secondly, Golden has defamed her and tarnished Ms. Iwasaki’s reputation by citing her as his

primary authority on geisha life and then inaccurately portraying many of the customs,

ceremonies and rituals. These facts clearly point to a claim for defamation of character which

Plaintiff will have difficulty proving under New York Law because this is a work of fiction, and

a claim for defamation in a fictionalized biography was not upheld in Mathews.. Moreover,

Plaintiff may have provided written consent for the publicity of her name and the book.

57
 Plaintiff affirms that she is the sole owner of the copyrights in and to her personal

history and family stories as set forth in the tapes made by Golden. Defendant has wrongfully

and without authorization reproduced Ms. Iwasaki’s copyrighted materials in the book. These

facts form the basis of a claim for copyright infringement of her taped conversations, and the

common law doctrine of copyright. Ms. Iwasaki will have difficulty proving that she has a

legitimate copyright in the taped conversations unless she had initially or at some point

designated to Golden which parts of total stream of the conversation is her literary creation.150

In May l992 Plaintiff claims that she and Defendant Golden entered into an agreement

whereby Golden agreed not to use the personal material supplied to him by Plaintiff in her taped

interviews and not to mention Plaintiff’s name in any publication by Golden. Plaintiff claims

Defendant breached the express terms of their agreement by revealing and spotlighting Ms.

Iwasaki’s name in the acknowledgment of the book. This assertion, if true, will be difficult for

Golden to defend since he did place her name in the acknowledgement of the book and,

therefore, is likely to be held liable for breach of an oral agreement.

Plaintiff claims unjust enrichment by the Defendant because Plaintiff was never

compensated for the time and work she contributed to the book whereas Defendants have both

enjoyed substantial profits from the sale of the book. Plaintiff also claims quantum meruit

against both Defendants for failure to compensate her for the fair value of her services to which

she is justly entitled.

150
See Estate of Hemingway v. Random House, supra note , at .See supra text
accompanying notes to for a discussion of the Estate of Hemingway v. Random House case on
the issue of common law copyright in taped conversations resulting in a biography of
Hemingway. .

58
 Plaintiff seeks an accounting against both Defendants because she is claiming to be a

joint author of the taped conversations which form the basis of the book. Golden licensed certain

rights in the book to Alfred A. Knopf without Ms. Iwasaki’s approval. As a result of the

licensing, the Defendants received over $l0,000,000, and Ms. Iwasaki seeks an accounting of the

exact sum received by the Defendants.

As for damages, Plaintiff wants Defendants to surrender all profits as a result of their

infringing activities including the sale of all goods or services incorporating Plaintiff’s

copyrighted materials.

B. Defendant’s Claims

As of the date of this publication, the Defendants have not yet filed a Reply to the

Complaint. However, in public interviews Arthur Golden has expressed quite clearly his views

on the merits of the Plaintiff’s complaint.

Golden denies the existence of any agreement not to disclose Iwasaki’s identity or

to observe total confidentiality about her personal stories and her family’s experiences. “There

was no such agreement,” said Golden.151 Why would Golden have spent all those hours taping if

he had agreed not to use the material in his book? Why would Golden, a man very familiar with

the publishing world, so boldly place her real name in the acknowledgments of his own book if

he had actually entered into an alleged agreement with her not to reveal her name? It is clear that

there is no written confidentiality agreement between Iwasaki and Golden. The legal force in the

151
Cherry Norton, Betrayal of a Geisha, SUNDAY TIMES (LONDON), April 29, 2001.

59
State of New York of an alleged oral confidentiality agreement by a Plaintiff seeking

astronomical amounts of compensation for services performed four years after the book was

published and on the eve of what promises to be a blockbuster movie directed by Steven

Spielberg is, at best, questionable. The only explanation for the filing of this belated Complaint

is that one of them is lying about the existence of an agreement, or more probably, that there was

a misunderstanding about what each party meant by confidentiality and trust. Given the disparity

in the cultural backgrounds of the Plaintiff and Defendant, such a misunderstanding seems quite

plausible. In any case, if there was an agreement not to divulge the Plaintiff’s identity, Golden is

clearly in breach of the agreement and has violated her right to privacy..

As to her delay in taking legal action, Iwasaki claims that she began considering legal

action in l999 when the book was first translated into Japanese and after she read it for the first

time. But Iwasaki claims that she believed she would be able to settle her differences with

Golden without lawyers. This assertion rings true because it is well known that the Japanese are

not a litigious people, and that they prefer solving disputes by a handshake rather than through

the intervention of lawyers. However, Iwasaki probably had ulterior motives and second

thoughts about the merits of suing based not only on greed and the desire for just compensation

for her services but more importantly on the need to save face. Iwasaki must save face for herself

and for her sister geisha in Japan who were up in arms against her for breaking the geisha code

of silence. Iwasaki must have reasoned that she could achieve her goal of saving face by

attacking the book and its author publicly through a law suit in which her claims would reveal to

the world that she had, indeed, respected the code of silence by insisting on confidentiality and

anonymity but that the author violated that code by breaching their agreement. Her claim to “co-

60
authorship” of the book militates against her own need to distance herself from the assertions in

the book, and this claim seems motivated entirely by pecuniary reasons.

Golden’s main defense against her claim of a right to privacy and publicity152 is that

he wrote a work of fiction, a fictionalized biography,153 and the main character is a literary

creation. Golden’s use of masks and his narrative technique of hiding behind the voice of the

narrator is so well executed that the reader begins to believe there is no author at all except the

narrator and that the book is made up entirely of the words contained in Sayuri’s intimate, taped

testimony.If the reader starts to think this, then it is inevitable that the real geisha, a reader

herself, will identity with the narrator and actually claim it is she, and not Sayuri, whose words

are being narrated. Golden himself said,”I was working very hard to make it look like I didn’t

really write this book, that it was just dictated by a geisha and that I wrote it down. And many

people write me letters and say,” Where–how can I get in touch with Sayuri? The truth is, she

doesn’t exist. This character is entirely invented, and the woman that I interviewed wouldn’t

recognize herself, or really anything about herself, in this book...”154

How prophetic Golden was when he said Iwasaki would not recognize herself in the

152
“The right to privacy has been defined as the right of a person to be free from
unwarranted publicity or the right to be protected against the commercial exploitation of one’s
personality without his written consent..The doctrine of privacy rests upon the proposition that
an individual, as a private person, should be protected from unsought publicity. Rosenwasser v.
Ogoglia (l9l6) l72 AD l07, l58 NYS 56. Joseph E. Conley, J.D., Anne M.H. Foley, J.D. and
Robert B. McKinney, J.D., New York Jurisprudence, Second Eidtion. Section 274 Right of
Privacy Defined. 44 N.Y. Jur. 2d Defamation and Privacy Section 274 (l994).54va enc
153
See Matthews, supra note , at on the claim of violation of a right to privacy in a
fictionalized biography. This claim was denied..
154
An interview with Arthur Golden and and Miles O’Brien on CNN.com Book News,
Memoirs of a Geisha: A Talk with Arthur Golden, March 23, 1999.

61
character of Sayuri. Iwasaki vigorously denies being like the person Golden wrote about in the

book.”Everything is wrong,” she said.”In the book, a geisha was beaten with a hanger and

crippled. There is a very strict rule that ‘maiko’ (apprentice geisha) and geisha should never be

beaten..”155 Every time Golden paints a picture of the geisha that is not in accordance with

Iwasaki’s perception of herself as a geisha, she cannot help being offended. Her flaw is in her

refusal to understand that the protagonist in this novel is an invented character drawn up by an

author hiding in the background. “The book is fiction,”156 and Golden confesses that he made a

lot of it up. “It’s not about her,“ and Sayuri is not Iwasaki.157

If Iwasaki is not the character in the book, there can be no basis for her claim to a

violation of her right to privacy.158 Iwasaki’s claim is something like the real person’s reaction

when she suspects she is the character in a roman a clef. But this person has no basis for a claim

of defamation, privacy or publicity because the character is fictional, not real, and the author has

his First Amendment right to freedom of speech to defend him.

Iwasaki’s claim to a violation of her right to privacy/publicity159 as well as her vaguely

155
Gary Tegler, Memoirs of a Geisha Muse Vents Spleen at Author, THE JAPAN TIMES
ONLINE, Tuesday, May l, 2001. .http://www.japantimes.co.jp>
156
Id.
157
Mark Feeney, Geisha Sues Golden Over 1997 Best Seller, THE BOSTON GLOBE, April
26, 2001. “The novel’s protagonist, Nitta Sayuri, was not based on Iwasaki.”
158
See Matthews, supra note , at .
159
“The right of publicity generally is defined as the right of every person to prevent the
unauthorized commercial use of his or her identity. The right of publicity arose from the rightof
privacy and serves two primary purposes: (l) to protect all persons from the anguish that may
accompany the unwanted use of their identity; and (2) to protect the property interest that
persons, especially celebrities, have in their identities.”See Bruce P. Keller, The Right of
Publicity: Past, Present and Future in PRACTICING LAW INSTITUTE COMMERCIAL LAW AND

62
alleged claim to defamation of her reputation will fail because of her own written consent160 to

publicity. Golden has stated publicly that he has a fax from her proving that Iwasaki actually

asked him to set up a United States publicity tour for her.161 Her desire to be recognized publicly

and her claim to require a condition precedent of anonymity in the novel are contradictions of

terms. Consent to publicity by the Plaintiff in a claim for the right of privacy will result in the

denial of her claim under New York law.

Defendant has a moral obligation, if not a legal one, to compensate Iwasaki for her hours

spent in proving him with valuable information about the geisha life. If there was no oral or

written agreement about compensation, there is no legal justification for her claim to quantum

meruit. However, by the equity of business practice, Golden should compensate her for her

services.

Golden should not have to compensate her for the profits he earned from the writing of

his own book, which Plaintiff claims is unjust enrichment. New York law will not recognize her

as co-author of this book under Matthews, and therefore Golden is likely to succeed on her claim

of unjust enrichment. Plaintiff’s claim to co-authorship of the fictionalized biography will fail

pursuant the holdings in Mathews and the Estate of Hemingway v. Random House.

PRACTICE COURSE HANDBOOK SERIES, PLI 161(October, 2000).

160
“In an action for defamation, the plaintiff’s consent to the publication of the
defamation confers an absolute immunity or an absolute privilege upon the defendant. Stated
differently, the plaintiff’s consent constitutes a complete defense to a defamation action” New
York Jurisprudence, Second Edition. 43A N.Y. Jur. 2d Defamation and Privacy Section l05
(1994).
161
Michael Ellison and Jonathan Watts, Geisha Wants Cut of Golden’s Goose, THE
GUARDIAN (LONDON), April 26, 2001.”The Japanese phrase she used translates roughly to “Put
my face out there a little more, please.’”

63
 While Defendant never addresses the merits of the copyright claim in any of his public

statements, one can anticipate his lawyer’s defense of a claim to a common law copyright of the

taping and transcription of the entire conversation between Iwasaki and Golden. The New York

Court of Appeals has spoken out quite clearly against the merits of a claim of common law

copyright for taped conversations where the speaker has not marked off the copyrightable

utterance in question from the ordinary stream of speech.162 Unless the speaker can indicate that

she actually intended to mark off certain parts of the taped speech as her own literary creation,

then the whole taped conversation will not pass muster under copyright law, as set forth in The

Estate of Ernest Hemingway et al. v. Random House, Inc.

C. Estate of Ernest Hemingway et al. V. Random House, Inc.

The facts of the case The Estate of Ernest Hemingway et al., v. Random House, Inc., et

al (Court of Appeals of New York, Dec. l2, l968, 23 N.Y. 2d 341, 244 N.E. 2d 250, 296 N.Y.S.

2d 771, are strikingly similar to the geisha case. The defendant in both cases is Random House,

and both cases involve a claim to copyright infringement of taped conversations that develop

into a fictionalized biography called a Memoir. In the Hemingway case Ernest Hemingway’s

widow is suing the publisher Random House and the author (Hotchner) who wrote a biography

162
Estate of Ernest Hemingway et.al., Appellants, v. Random House, Inc., et al.,
Respondents. Dec.l2, l968, Court of Court of Appeals of New York, 23 N.Y. 2d 341, 244 N.E.
2d 250, 296 N.Y.S. 2d 771.(at 256):Assuming, without deciding, that in a proper case a common
law copyright in certain limited kinds of spoken dialogue might be recognized, it would , at the
very least, be required that the speaker indicate that he intended to mark off the utterance in
question from the ordinary stream of speech, that he meant to adopt it as a unique statement and
that he wished to exercise control over its publication.”

64
of the writer Hemingway entitled “Papa Hemingway.” She is suing for damages and injunctive

relief on the ground that the biography consisted largely of Hemingway’s taped and confidential

conversations with Hotchner. The court was called upon to decide whether conversations of a

highly regarded writer may become the subject of common law copyright, even though the

speaker himself did not reduce his words to a writing.

Hotchner was an intimate friend of Hemingway who had frequently recorded

Hemingway’s personal conversations that he had with Hemingway. Hotchner even published

several articles about Hemingway based on these conversations. Hemingway consented to the

publications of these articles in the past. After Hemingway’s death, Hotchner wrote “Papa

Hemingway,” based upon his notes and his recollections of conversations he had with

Hemingway. Hotchner subtitled the book “a personal memoir” because it is a revealing

biographical portrait of the well-known writer. In the book there are lengthy quotations from

Hemingway’s conversations with him. Hemingway’s wife objected vigorously to the last two

chapters of the book about Hemingway’s suicide and mental illness. She sues Hotchner claiming

four causes of action, which are strikingly similar to the causes of action in the geisha case: (1)

that the biography consists of literary matter composed by Hemingway and in which he had a

common law copyright (an author’s proprietary interest in his literary or artistic creations before

they have been made generally available to the public; also referred to as “right of first

publication”); (2) that publication would constitute an unauthorized appropriation of

Hemingway’s work and would compete unfairly with his other literary creations; and (3) that

Hotchner wrongfully used material which was imparted to him in the course of a confidential

and fiduciary relationship with Hemingway, and (4) that the book invades the right to privacy

65
which Mary Hemingway herself is entitled to under section 51 of the Civil Rights Law.

D. What is the Likelihood of Success on the Merits of the Geisha case?

In the geisha case, Iwasaki makes similar claims to those of Mary Hemingway. Iwasaki

claims that she owns a copyright to the taped conversations she had with Golden in her home.

She claims unjust enrichment, which is a form of misappropriation, because she was not

remunerated for her services. She bases most of her claim on an oral confidentiality agreement

between Golden and herself, and she claims that there was a serious and confidential

relationship between her and Golden which he breached. Her claim to a right to privacy is also

vaguely alleged in the complaint. Judging from the holding of the court in the Estate of

Hemingway v. Random House, and the similarity of both cases, Iwasaki does not have much

hope of winning this case. In fact, the Hemingway case should have been a much easier case to

win than Iwasaki’s case againt Golden and Random House because the Hemingway biography

containing the information that Hotchner allegedly misappropriated is a biography of a public

figure. Golden’s Memoirs is a fictionalized biography of a character who is virtually unknown to

the Western world. If the New York Court of Appeals rejected Hemingway’s claim for

misappropriation and copyright infringement, Iwasaki will not have much hope for prevailing on

her weaker claims. The only hope Iwasaki has is that she can convince the court that there was

an agreement of confidentiality and anonymity between her and Golden, and that Golden

breached that agreement by placing her name boldly in the acknowledgment of the book. Golden

has continued to deny the existence of any such agreement.

66
VI. PRETEXT: WHY IS IWASAKI REALLY SUING ARTHUR GOLDEN?

Iwasaki may be interested in just compensation, but she is less motivated by greed than

by a personal mission to save herself and to save the geisha tradition. In interviews with

newspaper reporters, Ms. Iwasaki revealed more of her personal, hidden motives for suing

Arthur Golden, her erstwhile friend. She claims Arthur Golden told lies about her and about the

geisha tradition.“The book is lies, all lies,” she said in April 2001 to a reporter of the Sunday

London Times.163 Iwasaki is on a mission to defend her own reputation and the reputation of the

geisha tradition, which she sees as the bastion of Japanese culture.

Like an advocate for the rights of the geisha, Iwasaki is offended by Golden’s misguided

association of the geisha with the prostitute, an unfortunate link which casts a long shadow of

immorality over the reputation of the geisha, in general, and of Iwasaki, in particular. Iwasaki

claims that geisha are worthy of respect not opprobrium. “Golden has mixed up the well-

respected and highly educated geisha with the common prostitute in order to spice up the story

for Western audiences...In so doing, Golden has insulted all true geishas.”164 “Although some

geisha quarters did engage in prostitution, most did not, and the perception that all geisha sleep

with their clients is absolutely false.”she insisted.165 Iwasaki is in defense of the whole geisha

tradition as a vestige of old world Japanese culture, and the key to the Japanese soul.166 She has

163
Cherry Norton, Betrayal of a Geisha, SUNDAY TIMES (LONDON), April 29, 2001, at ?
164
Id.
165
Gary Tegler, supra note 138.
166
Erling Hoh, Tradition: Memory and Desire: A Best -Selling American Novel about the
Geisha Revives Interest in that Venerable But Surpringly Resilient Japanese Institution, Arts &

67
set it as her personal goal to correct the misguided images of the geisha.”We [geisha] are

precious goods and the livelihood of the geisha houses depends on us.”167 Iwasaki sounds like an

advocate for woman’s rights when she claims that geisha are “proud, accomplished women who

have absolute rights over [their] own bodies.”168

Iwasaki also must protect her own image. Having retired from the geisha life and now

living in Japan as a married woman and the proud mother of two children, Iwasaki must defend

her own reputation as a woman for the benefit of her family, friends, and former geisha

colleagues who are maligned by any association of the geisha with the prostitute. Despite much

evidence to the contrary, Iwasaki insists that geisha did not perform sex for money. “The geisha

world is not a place where you sell your body.”169

Iwasaki is suing Golden because he has offended her honor, and any slight to her

personal honor is a blow to the honor of the whole geisha profession. Golden’s attempt to paint a

less than clear picture about the morality of the geisha is viewed by Iwasaki as a direct attack on

her honor. Given the duality and ambivalence inherent in the substance and form of this novel,

Iwasaki’s irritation and resulting legal suit were inevitable. Her complaint is more about honor

than about money. That is why initially she sought only a public apology from Golden,170 not

Society, FAR EASTERN ECONOMIC REVIEW, THURSDAY, NOVEMBER 19,1998: “...the geisha have
retained a peculiar iconic status; some outsiders still see them as a key to unlocking the Japanee
soul.”
167
Id.
168
Id.
169
Cherry Norton, supra note .
170
Cherry Norton, supra note .

68
$l0,000,000 in compensation. She also only “want[ed] her name removed from all future

reprints of the book..”171 Her own lawyer stated that in Japan Iwasaki withdrew an official

complaint when the publisher there agreed to remove her name from the book’s

acknowledgments.172 This does not sound like a Plaintiff motivated entirely by greed.

Iwasaki also feels betrayed by a friend. There must have been some misunderstanding

about how he would use her material because she repeatedly refers to his betrayal of her

confidence and trust.”He has betrayed me and my family,” she said.173 “I am angry about the way

he has abused my confidence and trust. He could not have written the book without my help.

This is not just a personal injury lawsuit,” she said. “ I am not just doing this for myself. His

book is an insult. He has shown a total lack of respect for me, my privacy and that of all

geishas.”174 This lack of respect and privacy is based on her misunderstanding that the fictional

geisha is not the real geisha. She is embarrassed because Golden writes in the book that “as a

young girl [the protagonist’s] virginity was “auctioned to the highest bidder,” which Iwasaki

falsely assumes must refer to her own life.”The selling of her virginity, that rite of passage, did

not happen,” said Iwasaki’s lawyer.175

Iwasaki feels compelled to defend her own reputation as an authority on the geisha

171
Id.
172
Elizabeth Mehren, Geisha Charges Writer’s Fiction Is Her Truth, LOS ANGELES
TIMES, April 26, 2001.
173
Id.
174
Id.
175
Devlin Barrett, Geisha’s Revenge–Sues Author of Book on her Life, THE NEW YORK
POST, April 25, 2001.

69
tradition because she herself is writing a book about geisha.176 In defense of her own reputation,

she denies that geisha ever had to undergo the indignity of a deflowerment ceremony. “There

was no money put on virginity in my circles.”177 Iwasaki’s statement is true about the geisha who

lived in the l960s and l970s, in precisely the time that Iwasaki was practicing as a geisha. But

Golden’s fictional geisha lived in the l930s and l940s when the deflowerment ceremony was a

ritual that each young geisha typically endured.178 The real geisha assumes wrongly that she is

the same person as the fictional geisha, and that identification has created much of the source of

rancor in her complaint. It is Iwasaki’s statement denying deflowerment of the geisha as a ritual,

not Golden’s statement, that places suspicion on Iwasaki as an authority about geisha. Her denial

of the deflowerment ceremony shows her lack of understanding of the evolution of the geisha

tradition. In a different interview Iwasaki is quoted as saying that “the system under which

geisha operate was established in l873 and has not changed since then.” Nothing could be farther

from the truth, and studies have been done to trace the evolution of the geisha from the

seventeenth century to today when there are only l5, 000 geisha left in all of Japan..

Iwasaki may be suing because of a culture clash. She is Japanese, defending the old

world tradition of the geisha that she knew in l960 and l970, and Golden is an American writing

in l997 in the voice of a female geisha of the l930s. This is no doubt a tour de force for a writer,

but there may be moments when the Japanese voice does not ring true to the Japanese reader.

Iwasaki, and apparently many of the Japanese readers, do not like the book because some of the

176
Id.
177
Id.
178
Dalby, at l09-ll0. “Older geisha automatically say how wonderful it is that their
daughters do not have to submit to mizu-age.”

70
details simply do not reflect their own image of themselves as they see Japan and as they

remember one of their most valued traditions, the geisha. “ The vulgar details it contains about

unsavoury lavatories and thigh tatooes are not to Japanese taste.179

Iwasaki is suing because she must defend herself from attacks by her geisha friends and

colleagues who are bound, with a seriousness of purpose, to a code of silence that she has clearly

breached by speaking out to Golden. The reaction of her geisha friends was so violent that they

wanted her to commit harikari. This frightened Iwasaki so much, that she thought the only way

to deflect their anger was to sue the author and place the blame on his breach of confidentiality.

The merits of this claim are dubious.

VII. CONCLUSION

Memoirs of a Geisha by Arthur Golden deserves entry into the law and literature canon.

The author has accomplished a tour de force by writing with authenticity and engaging lyricism

in the many different voices of an evolving female narrator who represents the geisha in the

l930s and l940s. This book belongs in the law and literature canon not only because of the

author’s stylistic ingenuity resulting in vivid portraits of characters that populate the geisha

world and an elaborate array of poetic and exotic similes that capture Japan and the peculiarities

of its geisha tradition. This book belongs in the law and literature canon because for the first time

an author’s masterful narrative technique, based on voyeurism and duality, constitutes the

179
Cherry Norton, Betrayal of a Geisha, supra note .

71
primary motive for a law suit. It is not only what the author says but how he says it that provokes

the real geisha to sue both the author and the publisher for copyright infringement, breach of

contract, right to privacy and defamation.

Like a voyeur, the author hides behind two narrative masks, a translator who resembles

the author himself, and a narrator who resembles the real geisha. The reader, the grand voyeur,

simply cannot put down this titillating fictional biography because its medium is the message:

voyeurism is seductive. But good writing can have bad consequences. The author hides himself

so craftily behind the personae of both the translator and the narrator that the real geisha

confuses herself with the fictional geisha, claims she is the co-author of the book, and sues the

author in a New York court based on Japanese and New York law.

In preparation for writing the novel, the author carefully researched the image of the

geisha in Japanese society. Through a sustained use of ambivalence and duality, the novel

successfully captures the geisha’s dubious morality in society. In Japan the geisha is both

revered as an artist and symbol of old world Japanese tradition and reviled as a sex slave. Golden

illustrates the ugly and the beautiful aspects of the geisha world. For example, the recruitment of

geisha by force, fraud, and deception, and the practice of selling one’s own children into a life of

slavery is a heinous part of the geisha tradition. Recruitment of children for the purposes of

sexual exploitation and slave labor cannot be justified by an argument of cultural relativism.

Slavery is a universal crime that is universally condemned; the recruitment of children into the

geisha world is a variant of sex slavery which must be eradicated. That does not mean, however,

that the geisha tradition should be outlawed. As Golden points out time and time again

throughout the novel, the geisha is the bastion of Japanese culture, the symbol of the apogee of a

72
nation, and the representation of Japan’s most respected values which is the love of beauty and

the arts. To ban the geisha entirely would be to violate the soul of Japan.

The Plaintiff is a staunch advocate of the geisha tradition and a very specialized reader of

this novel. When she reads the book in Japanese translation, two years after it was published, she

is infuriated by Golden’s negative portrayal of the geisha, his historically accurate but

nevertheless intermittant associations of the geisha with the prostitute and with the degrading

practice of sex slavery and trafficking. Iwasaki resents the dual portrait of the geisha painted by

Golden. But the duality of the geisha as artist and courtesan is a leitmotif in the novel that

reflects society’s ambivalence towards the geisha. This duality is also reflected in the Japanese

laws passed from l872 to l958 which alternately banned and permitted prostitution and the work

of the geisha. The evolution of these laws reflect the shifting sands of official Japanese morality.

In the past Japanese laws made prostitution both legal and illegal and often exempted geisha

from their interdictions. Golden captures the moral ambivalence and legal duality in his novel.

Golden’s use of duality as a stylistic device constitutes the source of the book’s narrative

tension. Unfortunately, the substantive and stylistic duality also produces tension in the mind of

Iwasaki, the reader. Iwasaki’s own perception of the geisha does not always coincide with

Golden’s. As advocate for the geisha, Iwasaki’s agenda is to preserve the sanctity of the tradition

and establish a positive image of the geisha in the mind of society. Golden has a different goal

which is to provide a historically accurate slice of the geisha life. Golden’s dualist image of the

geisha is realistic; Iwasaki’s monolithic image of the geisha is romantic, and she shies away from

the stereotype of the geisha as courtesan preferring the geisha as artisan.

The lawsuit which develops is an unusual case because it involves a claim of defamation

73
and right to privacy in a work of fiction rather than fact. It is also unusual because normally the

author indemnifies the publisher for claims of defamation and the right to privacy. In this case

the publishers are vigorously defending the author based on their firm belief that the plaintiff’s

claims are utterly baseless.

Plaintiff asserts that she is a public figure in Japan. A public figure has a property right to

ration the use of her name and likeness in public, and this doctrine forms the basis of Plaintiff’s

claim to a right to privacy and publicity.

According to the Plaintiff, Golden breached an oral agreement in which he promised that

she and her family would remain anonymous and that the personal stories and information she

related to him would remain totally confidential. When Golden spoke about her publicly in

promotional tours and when he wrote her name clearly in the acknowledgment of the book, she

claims he breached their contract and violated her right to privacy. Golden denies the existence

of any written or oral contract and claims to possess written proof of her consent to publicity. If

this is true, the merits of Plaintiff’s claims for breach of contract and right to privacy are

dubious.

However, Iwasaki’s claim for quantum meruit has equitable, if not legal, merit because

she allegedly was never paid at all for her more than l00 hours of taped sessions with Golden. On

the other hand, her claim to unjust enrichment, which is based on a veiled claim for

misappropriation of her copyrighted tapes, have no basis under New York Law. She is seeking

to receive a large percentage of the profits of the novel, based on her contention that she is the

co-author of the novel. Matthews v. Wozencraft, Random House, Inc (1994) does not recognize

a claim of co-authorship by an informant of a fictionalized biography. Plaintiff’s claim to the

74
ownership of a common- law copyright in the taped conversations also has no merit based on the

holding of The Estate of Ernest Hemingway et . al. v. Random House, Inc.(l968).

The Defendant has still not filed an Answer to the Complaint as of this writing. However,

it is possible to anticipate his defenses from the verbal statements he has made in public

interviews. Golden denies the existence of an oral confidentiality agreement limiting his use of

her information about personal and family matters. Golden’s main defense against her claim of a

right to privacy and publicity as well as defamation is that he wrote a work of fiction, and the

main character is a literary creation. As a writer of fiction he has the First Amendment

protections of free speech to write about information held in the public domain. This novel is not

about Iwasaki who was a geisha in the l960s and l970s. It is about Sayuri who represents all

geisha in the l930s and l940s. Moreover, Iwasaki’s consent to publicity is a bar to her claim of a

right to privacy and publicity. Defendant has a full proof defense against her common law

copyright claim based on The Estate of Ernest Hemingway which requires the claimant to

distinguish any literary statements from the main stream of conversations, which she failed to do.

The real geisha has many hidden motives for suing that go beyond mere pecuniary

satisfaction. Something more than money would have to justify a famous geisha from breaking

the sacred code of silence and incurring the wrath of her sister geisha in Japan. Iwasaki spoke

out because she is an advocate of the geisha tradition as she sees it, and she wants to rest of the

world to see the geisha in that light. But her speech acts had dire consequences for her. After the

publication of this novel, Iwasaki went on a mission to defend her own reputation and the

reputation of the geisha tradition which she continues to see as the bastion of Japanese culture.

She is offended by Golden’s association of the geisha with the prostitute, an unfortunate,

75
historically-based link, which casts a long shadow of immorality over the reputation of the

geisha, in general, and of Iwasaki in particular. Moreover, Iwasaki needs to defend her reputation

as an authority on geishas because she herself is writing a book on this subject. She needs to

defend her reputation for moral reasons, for the benefit of her family and children. She also sues

Golden because he has offended her honor, shown disrespect towards her, by painting a less than

totally positive image of the geisha in the novel. Any slight to her personal honor is a blow to

the honor of the whole geisha profession. Iwasaki also feels betrayed by a friend whom she

assumed would keep her thoughts confidential. Iwasaki may also be suing because of a

misunderstanding based on a culture clash. Golden is an American male writing in l997 in the

voice of a female geisha of the l930s. This is a real literary tour de force because he must cut

through time, generations, gender, and nationality in order to create the verisimilitude he desires

for the biographical aspects of this fiction. Golden is very successful at the manipulation of these

voices, especially for American reading audiences. But the Japanese readers don’t appreciate

some of the details he includes which do not reflect their own image of themselves as they see

Japan. Iwasaki is offended by these cultural and perceptual differences.

Finally Iwasaki is suing because she must defend herself from attacks by her own geisha

friends. To the geisha of Japan, Iwasaki’s breach of the code of silence is so serious a violation

that they asked her to commit harakiri. Frightened and ashamed, Iwasaki tries to deflect their

anger and her own anger at herself by focusing her energies on a law suit against the author.

Publicly to save face, Iwasaki places blame on Golden’s breach of confidentiality as if to say

she never intended to publicly reveal the mysteries of the geisha world kept hidden for so many

years.

76
 Iwasaki is suing in self defense and because she is an advocate of the geisha. Golden

gets sued because he has written his novel too accurately, too poetically, too cleverly by masking

his own voice in the voice of a narrator who happens to be a geisha.

77