Recently in Copyright Category

The East African Novel

| No Comments
Bartle_Bull.jpg
Quick: what play involves an incestuous uncle, a sword fight to avenge the honor of a family member, a poisoned goblet of wine drunk by an unintended victim, and a pile of corpses at the play's close?  (If you said, Hamlet, that's a correct answer, but not the play about which I was thinking.)  I'm referring to Thomas Middleton's Women Beware Women, a kind of Jacobean Desperate Housewives, absent the suburbs, and plus verse. 

Women Beware Women and Hamlet, side-by-side, illustrate how playwrights of the late-Elizabethan, early-Jacobean era manipulated certain standardized or formulaic set pieces in order to craft their stories.  The fluency, eloquence and sophistication with which they maneuvered these story components, as contrasted with their originality in devising new components for the story, constituted their skill.  (Hence, Shakespeare borrowed plots from other sources, rather than making up his own.)  This mode of story telling is, in fact, quite ancient: Walter Ong describes how oral poets of Homer's time composed epic poems using "standardized formulas . . . grouped around equally standardized themes, such as the council, the gathering of the army, the challenge, the despoiling of the vanquished, the hero's shield, and so on and on."  (Orality & Literacy: The Technologizing of the Word, p. 23.)

So I felt an odd delight when I realized that, quite unconsciously, I'd been working in the same tradition on my latest novel, The Celebration Husband, which takes place in East Africa during the first three months of World War I.  Upon hearing that I'd written this novel, a friend gave me his seriously tattered-jacketed copy of Bartle Bull's Africa adventure, The White Rhino Hotel.

Reading The White Rhino Hotel, I felt an intriguing sense of recognition.  The novel contained many familiar scenarios, as if Bartle Bull and I had attended the same writing seminar and had both completed the assignment to "write a scene in the following circumstance: East Africa, nineteen-teens, go."

My novel contains: (a) a lion attack, (b) people captivated by the sight of wildlife, (c) crossing Kenya on a train, (d) riding around Kenya on a motorcycle, (e) farmers bemoaning the punishing conditions from which they are attempting to coax agricultural produce, (f) Masai and Kikuyu warriors in oppositional confrontation, (g) descriptions of bush cooking, (h) references to hunting safaris, (i) invocation of the classics, (j) a woman facing down a potential rapist, (k) a close friendship between a smart black African and a naive white colonist, and (l) arcane explanations and depictions of equipment and weaponry.

Every one of those elements appears in The White Rhino Hotel

I can think of a number of reasons for this overlap.  Bull and I might have read the same authors and texts in our research (e.g., Lord Cranworth, Elspeth Huxley, Karen Blixen, Beryl Markham are all fairly ubiquitous as sources on East Africa in the early twentieth century).  Also, these elements all correlate to regularly-occurring events in the reality of East African life between 1914 and 1921 (when The White Rhino Hotel ends), which is why they might crop up repeatedly in the relevant historical texts or stories handed down over the generations.

In short, these elements have become standard set pieces, the lion attack analogous to the Elizabethan / Jacobean sword fight.  They are (what in copyright law is referred to as) mise-en-scene: essential or stock elements of a particular genre.  See, e.g., Universal City Studios v. T-shirt Gallery, Ltd., 634 F. Supp. 1468, 1474 n.5 (S.D.N.Y. 1986).

I hadn't seen my writing from this perspective before, and - although to our novelty-centric culture, the prospect might be threatening or induce a sense of competitiveness - I found unexpectedly comforting aspects in it.  In contradistinction to the isolated novelist in a cottage in Naivasha, which I was for the duration in which I wrote The Celebration Husband, I felt myself in a tradition of storytellers captivated by East Africa in the early twentieth century, all of us sorting and reordering standardized story components of The East African Novel in our individual attempts to ignite the magic of suspension of disbelief.

In a surprising way, it felt good.

(Image of Bartle Bull and the cover of his novel, The White Rhino Hotel, from The New York Times and Fantasticfiction.co.uk respectively)
I've been living in the developing world uninterruptedly for five years now.  I've long been aware of the corruption endemic to many, if not most, developing countries.  The bribes necessary to jog the sluggish bureaucracy in India, the open sales of visas in China, the on-the-spot payment of "fines" for traffic violations in Kenya - none of it surprised me.

I was an innocent.

I had managed to maintain my naive outlook through five years of living, working and traveling in developing countries because - up until the past few weeks - I'd never attempted . . . to use a library.  For insight into real corruption in the developing world, try accessing publicly available documents.

I am currently researching WWI in Kenya, to which end, I paid a visit to the Kenya National Museum archives.  The illiterate archivist who was "assisting" me by blowing his acrid smoke-breath in my face collected 1,000 shillings from me as a "research fee."  The fee was listed on a price schedule for the museum archives, and - even if I doubted the fee's necessity - I wouldn't begrudge the museum $13 for pulling records from the archives for me.  (Ideally the money would go towards preservation.)  What I objected to was the request for a bribe that came from the archivist's boss after I'd finished looking through the documents.  Given that I'd established that the museum's archives didn't have what I needed (and even if they had), I was hard-pressed to understand why I should "buy the office lunch."

Hoping for better luck at the University of Nairobi library, I submitted a written request for access to the stacks.  I was elated when the request was granted, but I was promptly disappointed when I learned that the access I'd gained didn't include borrowing privileges.  Given my full-time job, I couldn't make much use of the opportunity to read books in the library.  I appealed to the librarian who had granted me access to the stacks.  A big, middle-aged man, he responded to my request for borrowing privileges by saying, "I wish I was your neighbor, so I could come over sometimes."

So much for the library.  The information I needed, I decided, was at the National Archives.  I had a contact name at the Archives, and I sent him an e-mail describing the information I was seeking and asking if the Archives contained relevant documents.  He replied, offering to find the necessary information in the Archives for 50,000 shillings.  Taking a friend who is a reporter for Kenya's Daily Nation with me, I went to the Archives to meet this entrepreneurial researcher.  At the Archives, I learned that I could buy an annual permit to use the Archives for 200 shillings.  When I raised this point with the archivist, he said that I wouldn't be able to find what I needed without his help.  A reasonable point, to be sure - considering that the Archives' computerized index listed nothing under the topic "WWI" - but since his salary was paid by the Kenyan government for the express purpose of providing help to researchers, I was unconvinced that I would be getting value for my money.

With all the sympathy in the world for the hard-working, underpaid men and women of Kenya's public information industries, I remain nonetheless scandalized by the apparent absence of respect for transparency, circulation of information, ease of public access, and the sanctity of the quest for knowledge as an endeavor in life.  Call me the jackass I undoubtedly am, but I'd somehow believed that librarians and archivists were somehow different from the border guards, policemen, politicians, etc., who have put the lie to the signs proclaiming "Corruption Free Zone" that I see everywhere in Nairobi.

Say what you will about the Google Books settlement; it at least has the benefit of lessening the scope for corruption of the sort that's stymied my work in Nairobi thus far.

More Rye wrangling

| No Comments
Whatever one might think about the continuing utility of meat space libraries and tangible newspapers, these entities sure write decent amicus briefs.  NYT, AP, Tribune, Gannett, along with the American Library Association, have weighed in on Fredrik Colting's appeal of Judge Batts' order banning his book, 60 Years Later: Coming Through the Rye, which uses J.D. Salinger's Catcher in the Rye as a point of departure. 

The amicus briefs are great reading - you can download them both here - if you enjoy watching a judge get spanked in a figurative, verbose and decidedly legalistic way.  "What was Judge Batts thinking?" is all you can wonder when you finish all 89 pages of the two briefs.  "Boy, she really messed up the law on this one," you say, rolling your eyes. 

The persuasive and passionate fervor of these amicus briefs may relate to the wellsprings of empathy their authors ought to have for Colting - depths of personal engagement analagous to Thurgood Marshall's personal connection to Brown v. Board, or Sarah Weddington's personal stake in Roe v.  Wade - or the rogue's sympathy for the hanged man. 

Quite simply, the differences between writing a legal brief and an unauthorized sequel (or parody, or whatever Colting's work is) are less significant than one might imagine.  Both use pre-existing works - in Colting's case, Catcher; in the attorneys' cases, caselaw - from which they borrow, to a greater or lesser extent, in order to fashion a story line that positions the original in the service of the author's agenda.  What else, in the end, is a legal brief, but a pastiche, a collage, a derivative work? 

Colting's misfortune is that his original work is protected by copyright law; the attorneys, on the other hand, owe their children's college tuition to the exemption from copyright of caselaw - and other works written by the US government.  But does that circumstance change the moral valence of the activity?  Colting engaged in fundamentally the identical process as the attorneys who wrote the amicus briefs - just using a different source material.  Does that make Colting bad?  (And before you interject that anything lawyers do can't be "good," think whether Judge Batts' decision should've been different - as it would have had to have been - if Colting had parodied a work that wasn't protected by copyright - 60 Years Later: Another Midsummer Night's Dream, for example.)

The process of active engagement with texts - arguing with them, bowlderizing them, cutting them up and reconfiguring them, reimagining them, twisting their meaning or amplifying their subtext - is a side-effect of being a thinking animal.  The law, in its wisdom, recognizes such behavior as "fair use."  Limiting the texts with which we can engage as thinking beings is both unwise and unfair - it's also impractical.

Of course, lack of awareness can stymie any insight, and active engagement with texts doesn't necessarily put one on the side of the angels on this issue: after all, J.D. Salinger's attorneys will use the same process to write an opposing brief.  Let's hope the Second Circuit Court of Appeals doesn't sympathize with the devil.

Open access to culture: a house divided

| No Comments
Globalization has hauled us into two major debates about access to and ownership of cultural products that, despite being remarkably similar in their stakes, are raging along completely different lines.

First, Google Books has provoked a fight about the world's written texts.  Authors and publishers worldwide are raising objections to the free availability of their works, as well as Google's status as the gatekeeper of the world's literary cache.

Second, "antiquities" countries like Italy, Greece, Turkey, China and Iraq have precipitated a struggle over the world's ancient cultural treasures.  Using draconian antiquities laws to prevent the removal of archeological finds from their borders, and agitating (sometimes successfully) for the return of ancient booty housed in museums located (for the most part) in former imperialist powers, these countries are raising objections to the availability of cultural treasures outside of the country of their unearthing.

Hugh Eakin's article, "Who Should Own the World's Antiquities?" in The New York Review of Books explores the question, raised by James Cuno in his books Who Owns Antiquity? Museums and the Battle Over Our Ancient Heritage and Whose Culture? The Promise of Museums and the Debate Over Antiquities, "[w]hy should state sovereignty determine ownership?"  In other words, why should Greece have ultimate say over what happens to pots dug up in its territory?

Instead of the tyranny of sovereignty, Cuno advocates the creation of an "international trusteeship under the auspices of a nongovernmental agency" to assume control of the world's antiquities and ensure fair and equal access by peoples worldwide to their shared heritage.

Cuno's proposal strikes me as idealistic; in reality, it's likely to manifest as a lumbering bureucracy and to be perceived as an imperialist power grab.  Cultural products unearthed in a country belong to that country for the same reason that oil found beneath the land, or lumber harvested from the country's forests, belong to it; forcing deposit of archeological finds into an international trust is not dissimilar from coercing contribution of diamonds mined in a country into an "international mineral fund" for use by the whole world.

Still, this dichotomy between socializing the world's antiquities (Cuno) and isolating them in the countries in which they were found (Italy, Turkey, China, Iraq) is markedly different than the debate over books, which largely turns on money: the vital question there is how will royalties be assessed and apportioned?

There are two principle reasons for this difference.  First, the information in books is intangible.  After your read ("consume") this blog post, the product ("information") is in no way dimished for the next consumer.  Also, a copy of my blog post (in print, on another site, etc.) is as good as the original.  This situation is markedly different from that of antiquities.  They are tangible; if a Grecian urn is in the British Museum, it cannot also be in the Metropolitan Museum of Art.  Similarly, a copy of the Grecian urn is not a substitute; it's a fake.

The second reason is intellectual property laws.  Copyright laws apply to many books that have been, are being and will be sucked into the Google Books vortex.  No intellectual property laws apply to ancient treasures: they are (legally) in the public domain.

I am not convinced that these reasons are good enough for the difference in outcomes.  At bottom, both antiquities and books are necessary for "the promotion of an essential kind of cultural pluralism," as Eakin writes, that "use[s] art as 'a way of creating a new kind of citizen for the world'" (quoting Neil MacGregor in an essay that appears in Whose Culture?). 

People living in a globalized world need access to cultural texts and products, old and new, from around the world, in order to make sense of their existences.  Why should their access turn on the physical fact of tangibility, rather than the principle of open access?  Why should the cultural goods that are supposedly in the "public domain" be less accessible than the texts that are allegedly intellectual property?  And why should books be controlled by an entity with a profit motive, while artifacts are controlled by entities with nation-building impulses?  In both these frameworks, aren't we losing sight of the overriding principle (and similarity): namely, the human entitlement to live a life enriched by the succor and wisdom of art?

Bad books making bad law

| No Comments
Having written in these posts about the manifold pleasures of reading, I must now admit that reading is not always an unmitigated pleasure.  Reading the preliminary injunction decision in Salinger v. Colting, for example, evokes in me the kind of pain I felt when I was fifteen and saw my high school boyfriend kissing the girl who got the lead in the school musical (when I was cast in a distinctly supporting role -- and one originally intended for a man). 

I love the law; I'm a rule-of-law true believer.  (I feel embarrassed making that confession, because I think true believers of any stripe are jackasses, myself being no exception.)  But I am constrained to wonder whether (with due credit to Jay Leno), if we Americans were destined to live under rule-of-law, wouldn't we have been given, oh I don't know, judges like Solomon?

Which is to say: a judge has barred publication, advertising or distribution of 60 Years Later: Coming Through the Rye, pending resolution of J.D. Salinger's lawsuit against the author of 60 Years Later, Fredrik Colting, and his publisher, Nicotext.  The decision is not a wise one.

Sadly, the factor I'd identified previously seemed to weigh heavily in the judge's opinion: namely, Colting's (apparently) poor character.  In footnote 3 of the opinion (downloadable here), the judge makes clear that she doesn't believe Colting's claim that 60 Years Later is a parody because Colting and his representatives changed their stories about the relationship between 60 Years Later and Catcher in the Rye: the characterizations ranged from "a sequel" to "a tribute" to "[it] has nothing to do with the original Catcher in the Rye."  After this flip-flopping, the court found:

It is simply not credible for Defendant Colting to assert now that his primary purpose was to critique Salinger and his persona, while he and his agents' previous statements regarding the book discuss no such critique, and in fact reference various other purposes behind the book.

(p. 21.)  Well, ok, Colting isn't integrity personified, which is not to say that he's a liar.  The author of such previous monuments to culture as, The Macho Man's Drinkbook: Because Nude Girls and Alcohol Go Great Together, might be said (possibly) to be a tad immature. 

But so what?  The court's exegesis of Colting's character and motivations loses sight of the fact that Colting's character and motivations are not factors in the copyright fair use analysis.  Nor, for that matter, is Colting self-awareness of his artistic aims. 

Artists are notoriously inarticulate about their own work.  At a book reading at Politics & Prose in D.C., I once heard E.L. Doctorow say something like, "Writers are the worst people to explain their own process of creation."  And forget visual artists; if they string words together in adjective-noun-verb sequence, we have to applaud them, even if the logical connections between the words is nil (as it typically is).

The well-established and historically pervasive inability of artists to explain their own work is one of two humanitarian justifications for the existence of critics.  (The other justification is that the profession is a jobs-creation program for sadists.)

Demanding of artists that they create works and have perfect awareness not only of what they're doing, but also how the law will categorize what they're doing is simply ridiculous.  Colting wrote a book using Catcher in the Rye as a point of departure; if his work meets the standards of parody, it should be a fair use, regardless of what Colting thought -- or said -- he was doing.

That said, I'm not without sympathy for the judge in this case.  The fair use "standard" is so indeterminate, and it guides jurists through so hollow an analysis, that simply ridiculous outcomes are the only guarantee in fair use litigation.  In these cases, indicia of the defendant having a "bad" intent provides a seemingly solid basis for a legal determination ("Who knows what art, or parody, is, but I can at least identify the skunk," thinks the judge).  Unfortunately, good artists, like good parodists, are usually skunks.

Small consolation that 60 Year Later, from the excerpts in the opinion, appears to have been written by a skunk who's not a good artist.  But, then again, who knows?  60 Years Later is written in the style of Catcher in the Rye and, among the legions of fans of Holden Caulfield's "voice," you won't find me.  I'm with James Stern on this one. 
I've been disappointed to see the way the 60 Years Later: Coming through the Rye legal tangle has been unfolding.  Very briefly, the basic facts are this:
  • In 1951, J.D. Salinger published The Catcher in the Rye, a book about a wayward teenager, Holden Caulfied, who wanders aimlessly through NYC, often drunk;
  • Earlier this year, someone called "J.D. California" published 60 Years Later, which purports to be a "sequel" to Catcher and features a character called "Mr. C" who wanders aimlessly through NYC (whether drunk is unclear since the book hasn't been released to the general public; I haven't read it);
  • "J.D. California" was revealed to be Fredrik Colting, one of the owners of Nicotext, the Swedish publisher that first published 60 Years Later;
  • J.D. Salinger sued to enjoin publication, claiming in his complaint that 60 Years Later was copyright infringement and not a fair use (e.g., a criticism, parody or transformation of the original);
  • Colting defended, saying that 60 Years Later does not merely rehash Catcher, but includes J.D. Salinger as a character who tries to kill Mr. C in multiple ways;
  • On June 17, a U.S. federal district court enjoined the release of 60 Years Later for 10 days;
  • Although 10 days seems a moderate amount of time for an injunction, the judge indicated that she was not inclined to find that 60 Years Later was a fair use saying, "Let me be clear, I am having difficulty seeing that [a critique of Catcher] exists [in 60 Years Later]."
Without prejudging the case, I don't find the judge's comment promising.  As I said, I haven't read 60 Years Later, but if it does include a character named "J.D. Salinger" attempting to kill an aged Holden Caulfiend (a/k/a "Mr. C"), that situation strikes me as a very obvious critique: Colting is observing a power struggle between author and character, implying the author's resentment and jealousy of the character's power and fame.  J.D. Salinger has decided to stop speaking and wants his character to do the same; Salinger will not tolerate the inevitable fact that Holden Caulfield has a life of his own.  

Beyond what seems (to my inexpert eye) to be a facially apparent critique which ought to classify 60 Years Later as a fair use, creating new works using existing characters is common practice.  Tom Stoppard did it with Rosencrantz and Guildenstern Are Dead; Jean Rhys did it with Wide Sargasso Sea; Paula Vogel did it with Desdemona: A Play about a Handkerchief; Alice Randall did it with The Wind Done Gone; Pia Pera did it with Lo's Diary.  (Full disclosure: I did it with Portnoy's Daughter.)  These authors aren't counterfeiters or pirates; they're authors themselves, people who are supposed to benefit from copyright.  These works embody the compromise that copyright law strikes: it preserves exclusivity to one author without impinging on the free speech of another.

If the 60 Years Later case is going badly, it may be for reasons apart from fair use law.  The defendant, Colting, has come across as weasely.  Colting picked a pen name "J.D. California" that invokes "J.D. Salinger" and, making matters worse, he's told a number of contradictory stories about the name. 

Publisher's Lunch reports that Colting initially claimed that his name really was "J.D. California":  "[A] few days ago he insisted to the Telegraph 'My initials really are JD, my first names are John David and I changed my last name to California. That's what's in my passport.'" 

Then Colting reversed himself, admitting that "J.D. California" was a pen name, but that he hadn't picked it to sound like "J.D. Salinger":  "Somehow, John David California sounded like JD. I didn't think about that actually. I just thought it sounded cool. Of course afterwards, I see the resemblance," Colting told The Local. 

Then, when asked for a picture of himself, he gave a photo of an actor friend of his, Gustav Roth, that ran in the Telegraph.    

Outcomes in fair use disputes are notoriously difficult to predict because the test for fair use requires consideration of multiple factors.  The character of the defendant isn't one of those factors, but defendants who come across as intending to ride the coat-tails of the famous don't tend to do well in court.  Courts in intellectual property cases typically give heavy weight to evidence of bad intent -- perhaps because the issues are often difficult to parse, and bad intent often seems worthy of punishment.  All the same, as a matter of law, the case ultimately turns on the work, not whether the defendant is an upstanding citizen. 

If the court allows Colting's poor conduct to cloud the redeeming qualities of 60 Years Later, the people who will pay the price are other authors and the reading public.

About this Archive

This page is an archive of recent entries in the Copyright category.

Book Reviews is the previous category.

Exhibition catalogs is the next category.

Categories

Archives

OpenID accepted here Learn more about OpenID
Powered by Movable Type 5.04