SOMETHING BORROWED; ANNALS OF CULTURE |
One day this spring, a psychiatrist named Dorothy Lewis got a call from her
friend Betty, who works in New York City. Betty had just seen a Broadway play
called "Frozen," written by the British playwright Bryony Lavery.
"She said, 'Somehow it reminded me of you. You really ought to see it,'
" Lewis recalled. Lewis asked Betty what the play was about, and Betty
said that one of the characters was a psychiatrist who studied serial killers.
"And I told her, 'I need to see that as much as I need to go to the moon.'
"
Lewis has studied serial killers for the past twenty-five years. With her
collaborator, the neurologist Jonathan Pincus, she has published a great many
research papers, showing that serial killers tend to suffer from predictable
patterns of psychological, physical, and neurological dysfunction: that they
were almost all the victims of harrowing physical and sexual abuse as children,
and that almost all of them have suffered some kind of brain injury or mental
illness. In 1998, she published a memoir of her life and work entitled
"Guilty by Reason of Insanity." She was the last person to visit Ted
Bundy before he went to the electric chair. Few people in the world have spent
as much time thinking about serial killers as Dorothy Lewis, so when her friend
Betty told her that she needed to see "Frozen" it struck her as a
busman's holiday.
But the calls kept coming. "Frozen" was winning raves on Broadway,
and it had been nominated for a Tony. Whenever someone who knew Dorothy Lewis saw
it, they would tell her that she really ought to see it, too. In June, she got
a call from a woman at the theatre where "Frozen" was playing.
"She said she'd heard that I work in this field, and that I see murderers,
and she was wondering if I would do a talk-back after the show," Lewis
said. "I had done that once before, and it was a delight, so I said sure.
And I said, would you please send me the script, because I wanted to read the
play."
The script came, and Lewis sat down to read it. Early in the play, something
caught her eye, a phrase: "it was one of those days." One of the
murderers Lewis had written about in her book had used that same expression.
But she thought it was just a coincidence. "Then, there's a scene of a
woman on an airplane, typing away to her friend. Her name is Agnetha
Gottmundsdottir. I read that she's writing to her colleague, a neurologist
called David Nabkus. And with that I realized that more was going on, and I
realized as well why all these people had been telling me to see the
play."
Lewis began underlining line after line. She had worked at New York
University School of Medicine. The psychiatrist in "Frozen" worked at
New York School of Medicine. Lewis and Pincus did a study of brain injuries
among fifteen death-row inmates. Gottmundsdottir and Nabkus did a study of
brain injuries among fifteen death-row inmates. Once, while Lewis was examining
the serial killer Joseph Franklin, he sniffed her, in a grotesque, sexual way.
Gottmundsdottir is sniffed by the play's serial killer, Ralph. Once, while
Lewis was examining Ted Bundy, she kissed him on the cheek. Gottmundsdottir, in
some productions of "Frozen," kisses Ralph. "The whole thing was
right there," Lewis went on. "I was sitting at home reading the play,
and I realized that it was I. I felt robbed and violated in some peculiar way.
It was as if someone had stolen--I don't believe in the soul, but, if there was
such a thing, it was as if someone had stolen my essence."
Lewis never did the talk-back. She hired a lawyer. And she came down from
New Haven to see "Frozen." "In my book," she said, "I
talk about where I rush out of the house with my black carry-on, and I have two
black pocketbooks, and the play opens with her"--Agnetha--"with one
big black bag and a carry-on, rushing out to do a lecture." Lewis had
written about biting her sister on the stomach as a child. Onstage, Agnetha
fantasized out loud about attacking a stewardess on an airplane and
"biting out her throat." After the play was over, the cast came
onstage and took questions from the audience. "Somebody in the audience
said, 'Where did Bryony Lavery get the idea for the psychiatrist?' " Lewis
recounted. "And one of the cast members, the male lead, said, 'Oh, she
said that she read it in an English medical magazine.' " Lewis is a tiny
woman, with enormous, childlike eyes, and they were wide open now with the
memory. "I wouldn't have cared if she did a play about a shrink who's
interested in the frontal lobe and the limbic system. That's out there to do. I
see things week after week on television, on 'Law & Order' or 'C.S.I.,' and
I see that they are using material that Jonathan and I brought to light. And
it's wonderful. That would have been acceptable. But she did more than that.
She took things about my own life, and that is the part that made me feel
violated."
At the request of her lawyer, Lewis sat down and made up a chart detailing
what she felt were the questionable parts of Lavery's play. The chart was
fifteen pages long. The first part was devoted to thematic similarities between
"Frozen" and Lewis's book "Guilty by Reason of Insanity."
The other, more damning section listed twelve instances of almost verbatim
similarities--totalling perhaps six hundred and seventy-five words--between passages
from "Frozen" and passages from a 1997 magazine profile of Lewis. The
profile was called "Damaged." It appeared in the February 24, 1997,
issue of The New Yorker. It was written by me.
Words belong to the person who wrote them. There are few simpler ethical
notions than this one, particularly as society directs more and more energy and
resources toward the creation of intellectual property. In the past thirty
years, copyright laws have been strengthened. Courts have become more willing
to grant intellectual-property protections. Fighting piracy has become an
obsession with Hollywood and the recording industry, and, in the worlds of
academia and publishing, plagiarism has gone from being bad literary manners to
something much closer to a crime. When, two years ago, Doris Kearns Goodwin was
found to have lifted passages from several other historians, she was asked to
resign from the board of the Pulitzer Prize committee. And why not? If she had
robbed a bank, she would have been fired the next day.
I'd worked on "Damaged" through the fall of 1996. I would visit
Dorothy Lewis in her office at Bellevue Hospital, and watch the videotapes of
her interviews with serial killers. At one point, I met up with her in
Missouri. Lewis was testifying at the trial of Joseph Franklin, who claims
responsibility for shooting, among others, the civil-rights leader Vernon
Jordan and the pornographer Larry Flynt. In the trial, a videotape was shown of
an interview that Franklin once gave to a television station. He was asked
whether he felt any remorse. I wrote:
"I can't say that I do," he said. He paused again, then added,
"The only thing I'm sorry about is that it's not legal.""What's
not legal?"Franklin answered as if he'd been asked the time of day:
"Killing Jews."
That exchange, almost to the word, was reproduced in "Frozen."
Lewis, the article continued, didn't feel that Franklin was fully
responsible for his actions. She viewed him as a victim of neurological
dysfunction and childhood physical abuse. "The difference between a crime
of evil and a crime of illness," I wrote, "is the difference between
a sin and a symptom." That line was in "Frozen," too--not once
but twice. I faxed Bryony Lavery a letter:
I am happy to be the source of inspiration for other writers, and had you
asked for my permission to quote--even liberally--from my piece, I would have
been delighted to oblige. But to lift material, without my approval, is theft.
Almost as soon as I'd sent the letter, though, I began to have second
thoughts. The truth was that, although I said I'd been robbed, I didn't feel
that way. Nor did I feel particularly angry. One of the first things I had said
to a friend after hearing about the echoes of my article in "Frozen"
was that this was the only way I was ever going to get to Broadway--and I was
only half joking. On some level, I considered Lavery's borrowing to be a
compliment. A savvier writer would have changed all those references to Lewis,
and rewritten the quotes from me, so that their origin was no longer
recognizable. But how would I have been better off if Lavery had disguised the
source of her inspiration?
Dorothy Lewis, for her part, was understandably upset. She was considering a
lawsuit. And, to increase her odds of success, she asked me to assign her the
copyright to my article. I agreed, but then I changed my mind. Lewis had told
me that she "wanted her life back." Yet in order to get her life
back, it appeared, she first had to acquire it from me. That seemed a little
strange.
Then I got a copy of the script for "Frozen." I found it
breathtaking. I realize that this isn't supposed to be a relevant
consideration. And yet it was: instead of feeling that my words had been taken
from me, I felt that they had become part of some grander cause. In late
September, the story broke. The Times, the Observer in England, and the
Associated Press all ran stories about Lavery's alleged plagiarism, and the
articles were picked up by newspapers around the world. Bryony Lavery had seen
one of my articles, responded to what she read, and used it as she constructed
a work of art. And now her reputation was in tatters. Something about that
didn't seem right.
In 1992, the Beastie Boys released a song called "Pass the Mic,"
which begins with a six-second sample taken from the 1976 composition
"Choir," by the jazz flutist James Newton. The sample was an exercise
in what is called multiphonics, where the flutist "overblows" into
the instrument while simultaneously singing in a falsetto. In the case of
"Choir," Newton played a C on the flute, then sang C, D-flat, C--and
the distortion of the overblown C, combined with his vocalizing, created a
surprisingly complex and haunting sound. In "Pass the Mic," the
Beastie Boys repeated the Newton sample more than forty times. The effect was
riveting.
In the world of music, copyrighted works fall into two categories--the
recorded performance and the composition underlying that performance. If you
write a rap song, and want to sample the chorus from Billy Joel's "Piano
Man," you first have to get permission from the record label to use the
"Piano Man" recording, and then get permission from Billy Joel (or
whoever owns his music) to use the underlying composition. In the case of
"Pass the Mic," the Beastie Boys got the first kind of
permission--the rights to use the recording of "Choir"--but not the
second. Newton sued, and he lost--and the reason he lost serves as a useful
introduction to how to think about intellectual property.
At issue in the case wasn't the distinctiveness of Newton's performance. The
Beastie Boys, everyone agreed, had properly licensed Newton's performance when
they paid the copyright recording fee. And there was no question about whether
they had copied the underlying music to the sample. At issue was simply whether
the Beastie Boys were required to ask for that secondary permission: was the
composition underneath those six seconds so distinctive and original that
Newton could be said to own it? The court said that it wasn't.
The chief expert witness for the Beastie Boys in the "Choir" case
was Lawrence Ferrara, who is a professor of music at New
York University, and when I asked him to explain the court's ruling he
walked over to the piano in the corner of his office and played those three
notes: C, D-flat, C. "That's it!" he shouted. "There ain't
nothing else! That's what was used. You know what this is? It's no more than a
mordent, a turn. It's been done thousands upon thousands of times. No one can
say they own that."
Ferrara then played the most famous four-note sequence in classical music,
the opening of Beethoven's Fifth: G, G, G, E-flat. This was unmistakably
Beethoven. But was it original? "That's a harder case," Ferrara said.
"Actually, though, other composers wrote that. Beethoven himself wrote
that in a piano sonata, and you can find figures like that in composers who
predate Beethoven. It's one thing if you're talking about da-da-da dummm, da-da-da
dummm--those notes, with those durations. But just the four pitches, G, G, G,
E-flat? Nobody owns those."
Ferrara once served as an expert witness for Andrew Lloyd Webber, who was
being sued by Ray Repp, a composer of Catholic folk music. Repp said that the
opening few bars of Lloyd Webber's 1984 "Phantom Song," from
"The Phantom of the Opera," bore an overwhelming resemblance to his
composition "Till You," written six years earlier, in 1978. As
Ferrara told the story, he sat down at the piano again and played the beginning
of both songs, one after the other; sure enough, they sounded strikingly
similar. "Here's Lloyd Webber," he said, calling out each note as he
played it. "Here's Repp. Same sequence. The only difference is that Andrew
writes a perfect fourth and Repp writes a sixth."
But Ferrara wasn't quite finished. "I said, let me have everything
Andrew Lloyd Webber wrote prior to 1978-- 'Jesus Christ Superstar,' 'Joseph,'
'Evita.' " He combed through every score, and in "Joseph and the
Amazing Technicolor Dreamcoat" he found what he was looking for.
"It's the song 'Benjamin Calypso.' " Ferrara started playing it. It
was immediately familiar. "It's the first phrase of 'Phantom Song.' It's
even using the same notes. But wait--it gets better. Here's 'Close Every Door,'
from a 1969 concert performance of 'Joseph.' " Ferrara is a dapper,
animated man, with a thin, well-manicured mustache, and thinking about the
Lloyd Webber case was almost enough to make him jump up and down. He began to
play again. It was the second phrase of "Phantom." "The first
half of 'Phantom' is in 'Benjamin Calypso.' The second half is in 'Close Every
Door.' They are identical. On the button. In the case of the first theme, in
fact, 'Benjamin Calypso' is closer to the first half of the theme at issue than
the plaintiff's song. Lloyd Webber writes something in 1984, and he borrows
from himself."
In the "Choir" case, the Beastie Boys' copying didn't amount to
theft because it was too trivial. In the "Phantom" case, what Lloyd
Webber was alleged to have copied didn't amount to theft because the material
in question wasn't original to his accuser. Under copyright law, what matters
is not that you copied someone else's work. What matters is what you copied,
and how much you copied. Intellectual-property doctrine isn't a straightforward
application of the ethical principle "Thou shalt not steal." At its
core is the notion that there are certain situations where you can steal. The
protections of copyright, for instance, are time-limited; once something passes
into the public domain, anyone can copy it without restriction. Or suppose that
you invented a cure for breast cancer in your basement lab. Any patent you
received would protect your intellectual property for twenty years, but after
that anyone could take your invention. You get an initial monopoly on your
creation because we want to provide economic incentives for people to invent
things like cancer drugs. But everyone gets to steal your breast-cancer
cure--after a decent interval--because it is also in society's interest to let
as many people as possible copy your invention; only then can others learn from
it, and build on it, and come up with better and cheaper alternatives. This
balance between the protecting and the limiting of intellectual property is, in
fact, enshrined in the Constitution: "Congress shall have the power to
promote the Progress of Science and useful Arts, by securing for
limited"--note that specification, limited--"Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries."
So is it true that words belong to the person who wrote them, just as other
kinds of property belong to their owners? Actually, no. As the Stanford
law professor Lawrence Lessig argues in his new book "Free Culture":
In ordinary language, to call a copyright a "property" right is a
bit misleading, for the property of copyright is an odd kind of property. . . .
I understand what I am taking when I take the picnic table you put in your
backyard. I am taking a thing, the picnic table, and after I take it, you don't
have it. But what am I taking when I take the good idea you had to put a picnic
table in the backyard--by, for example, going to Sears, buying a table, and
putting it in my backyard? What is the thing that I am taking then?The point is
not just about the thingness of picnic tables versus ideas, though that is an important
difference. The point instead is that in the ordinary case--indeed, in
practically every case except for a narrow range of exceptions--ideas released
to the world are free. I don't take anything from you when I copy the way you
dress--though I might seem weird if I do it every day. . . . Instead, as Thomas
Jefferson said (and this is especially true when I copy the way someone
dresses), "He who receives an idea from me, receives instruction himself
without lessening mine; as he who lights his taper at mine, receives light
without darkening me."
Lessig argues that, when it comes to drawing this line between private
interests and public interests in intellectual property, the courts and
Congress have, in recent years, swung much too far in the direction of private
interests. He writes, for instance, about the fight by some developing
countries to get access to inexpensive versions of Western drugs through what
is called "parallel importation"--buying drugs from another
developing country that has been licensed to produce patented medicines. The
move would save countless lives. But it has been opposed by the United States
not on the ground that it would cut into the profits of Western pharmaceutical
companies (they don't sell that many patented drugs in developing countries
anyway) but on the ground that it violates the sanctity of intellectual
property. "We as a culture have lost this sense of balance," Lessig
writes. "A certain property fundamentalism, having no connection to our
tradition, now reigns in this culture."
Even what Lessig decries as intellectual-property extremism, however,
acknowledges that intellectual property has its limits. The United States
didn't say that developing countries could never get access to cheap versions
of American drugs. It said only that they would have to wait until the patents
on those drugs expired. The arguments that Lessig has with the hard-core
proponents of intellectual property are almost all arguments about where and
when the line should be drawn between the right to copy and the right to
protection from copying, not whether a line should be drawn.
But plagiarism is different, and that's what's so strange about it. The
ethical rules that govern when it's acceptable for one writer to copy another
are even more extreme than the most extreme position of the
intellectual-property crowd: when it comes to literature, we have somehow
decided that copying is never acceptable. Not long ago, the Harvard law
professor Laurence Tribe was accused of lifting material from the historian
Henry Abraham for his 1985 book, "God Save This Honorable Court."
What did the charge amount to? In an expose that appeared in the conservative
publication The Weekly Standard, Joseph Bottum produced a number of examples of
close paraphrasing, but his smoking gun was this one borrowed sentence:
"Taft publicly pronounced Pitney to be a 'weak member' of the Court to
whom he could not assign cases." That's it. Nineteen words.
Not long after I learned about "Frozen," I went to see a friend of
mine who works in the music industry. We sat in his living room on the Upper
East Side, facing each other in easy chairs, as he worked his way through a
mountain of CDs. He played "Angel," by the reggae singer Shaggy, and
then "The Joker," by the Steve Miller Band, and told me to listen
very carefully to the similarity in bass lines. He played Led Zeppelin's
"Whole Lotta Love" and then Muddy Waters's "You Need Love,"
to show the extent to which Led Zeppelin had mined the blues for inspiration. He
played "Twice My Age," by Shabba Ranks and Krystal,
and then the saccharine seventies pop standard "Seasons in the Sun,"
until I could hear the echoes of the second song in the first. He played
"Last Christmas," by Wham!, followed by Barry Manilow's "Can't
Smile Without You" to explain why Manilow might have been startled when he
first heard that song, and then "Joanna," by Kool and the Gang,
because, in a different way, "Last Christmas" was an homage to Kool
and the Gang as well. "That sound you hear in Nirvana," my friend
said at one point, "that soft and then loud, kind of exploding thing, a
lot of that was inspired by the Pixies. Yet Kurt Cobain"--Nirvana's lead
singer and songwriter--"was such a genius that he managed to make it his
own. And 'Smells Like Teen Spirit'?"--here he was referring to perhaps the
best-known Nirvana song. "That's Boston's 'More Than a Feeling.' " He
began to hum the riff of the Boston hit, and said, "The first time I heard
'Teen Spirit,' I said, 'That guitar lick is from "More Than a
Feeling." ' But it was different--it was urgent and brilliant and
new."
He played another CD. It was Rod Stewart's "Do Ya Think I'm Sexy,"
a huge hit from the nineteen-seventies. The chorus has a distinctive, catchy
hook--the kind of tune that millions of Americans probably hummed in the shower
the year it came out. Then he put on "Taj Mahal," by the Brazilian artist
Jorge Ben Jor, which was recorded several years before the Rod Stewart song. In
his twenties, my friend was a d.j. at various downtown clubs, and at some point
he'd become interested in world music. "I caught it back then," he
said. A small, sly smile spread across his face. The opening bars of "Taj
Mahal" were very South American, a world away from what we had just
listened to. And then I heard it. It was so obvious and unambiguous that I
laughed out loud; virtually note for note, it was the hook from "Do Ya
Think I'm Sexy." It was possible that Rod Stewart had independently come
up with that riff, because resemblance is not proof of influence. It was also
possible that he'd been in Brazil, listened to some local music, and liked what
he heard.
My friend had hundreds of these examples. We could have sat in his living
room playing at musical genealogy for hours. Did the examples upset him? Of
course not, because he knew enough about music to know that these patterns of
influence--cribbing, tweaking, transforming--were at the very heart of the
creative process. True, copying could go too far. There were times when one
artist was simply replicating the work of another, and to let that pass
inhibited true creativity. But it was equally dangerous to be overly vigilant
in policing creative expression, because if Led Zeppelin hadn't been free to
mine the blues for inspiration we wouldn't have got "Whole Lotta
Love," and if Kurt Cobain couldn't listen to "More Than a
Feeling" and pick out and transform the part he really liked we wouldn't
have "Smells Like Teen Spirit"--and, in the evolution of rock,
"Smells Like Teen Spirit" was a real step forward from "More
Than a Feeling." A successful music executive has to understand the
distinction between borrowing that is transformative and borrowing that is
merely derivative, and that distinction, I realized, was what was missing from
the discussion of Bryony Lavery's borrowings. Yes, she had copied my work. But
no one was asking why she had copied it, or what she had copied, or whether her
copying served some larger purpose.
Bryony Lavery came to see me in early October. It was a beautiful Saturday
afternoon, and we met at my apartment. She is in her fifties, with short
tousled blond hair and pale-blue eyes, and was wearing jeans and a loose green
shirt and clogs. There was something rugged and raw about her. In the Times the
previous day, the theatre critic Ben Brantley had not been kind to her new
play, "Last Easter." This was supposed to be her moment of triumph.
"Frozen" had been nominated for a Tony. "Last Easter" had
opened Off Broadway. And now? She sat down heavily at my kitchen table.
"I've had the absolute gamut of emotions," she said, playing
nervously with her hands as she spoke, as if she needed a cigarette. "I
think when one's working, one works between absolute confidence and absolute
doubt, and I got a huge dollop of each. I was terribly confident that I could
write well after 'Frozen,' and then this opened a chasm of doubt." She
looked up at me. "I'm terribly sorry," she said.
Lavery began to explain: "What happens when I write is that I find that
I'm somehow zoning on a number of things. I find that I've cut things out of
newspapers because the story or something in them is interesting to me, and
seems to me to have a place onstage. Then it starts coagulating. It's like the
soup starts thickening. And then a story, which is also a structure, starts
emerging. I'd been reading thrillers like 'The Silence of the Lambs,' about
fiendishly clever serial killers. I'd also seen a documentary of the victims of
the Yorkshire killers, Myra Hindley and Ian Brady, who were called the Moors
Murderers. They spirited away several children. It seemed to me that killing
somehow wasn't fiendishly clever. It was the opposite of clever. It was as
banal and stupid and destructive as it could be. There are these interviews
with the survivors, and what struck me was that they appeared to be frozen in
time. And one of them said, 'If that man was out now, I'm a forgiving man but I
couldn't forgive him. I'd kill him.' That's in 'Frozen.' I was thinking about
that. Then my mother went into hospital for a very simple operation, and the
surgeon punctured her womb, and therefore her intestine, and she got
peritonitis and died."
When Lavery started talking about her mother, she stopped, and had to
collect herself. "She was seventy-four, and what occurred to me is that I
utterly forgave him. I thought it was an honest mistake. I'm very sorry it
happened to my mother, but it's an honest mistake." Lavery's feelings
confused her, though, because she could think of people in her own life whom
she had held grudges against for years, for the most trivial of reasons.
"In a lot of ways, 'Frozen' was an attempt to understand the nature of
forgiveness," she said.
Lavery settled, in the end, on a play with three characters. The first is a
serial killer named Ralph, who kidnaps and murders a young girl. The second is
the murdered girl's mother, Nancy. The third is a psychiatrist from New York,
Agnetha, who goes to England to examine Ralph. In the course of the play, the
three lives slowly intersect--and the characters gradually change and become
"unfrozen" as they come to terms with the idea of forgiveness. For
the character of Ralph, Lavery says that she drew on a book about a serial
killer titled "The Murder of Childhood," by Ray Wyre and Tim Tate.
For the character of Nancy, she drew on an article written in the Guardian by a
woman named Marian Partington, whose sister had been murdered by the serial
killers Frederick and Rosemary West. And, for the character of Agnetha, Lavery
drew on a reprint of my article that she had read in a British publication.
"I wanted a scientist who would understand," Lavery said--a scientist
who could explain how it was possible to forgive a man who had killed your
daughter, who could explain that a serial killing was not a crime of evil but a
crime of illness. "I wanted it to be accurate," she added.
So why didn't she credit me and Lewis? How could she have been so meticulous
about accuracy but not about attribution? Lavery didn't have an answer. "I
thought it was O.K. to use it," she said with an embarrassed shrug.
"It never occurred to me to ask you. I thought it was news."
She was aware of how hopelessly inadequate that sounded, and when she went
on to say that my article had been in a big folder of source material that she
had used in the writing of the play, and that the folder had got lost during
the play's initial run, in Birmingham, she was aware of how inadequate that
sounded, too.
But then Lavery began to talk about Marian Partington, her other important
inspiration, and her story became more complicated. While she was writing
"Frozen," Lavery said, she wrote to Partington to inform her of how
much she was relying on Partington's experiences. And when "Frozen"
opened in London she and Partington met and talked. In reading through articles
on Lavery in the British press, I found this, from the Guardian two years ago,
long before the accusations of plagiarism surfaced:
Lavery is aware of the debt she owes to Partington's writing and is eager to
acknowledge it."I always mention it, because I am aware of the enormous
debt that I owe to the generosity of Marian Partington's piece . . . . You have
to be hugely careful when writing something like this, because it touches on
people's shattered lives and you wouldn't want them to come across it
unawares."
Lavery wasn't indifferent to other people's intellectual property, then; she
was just indifferent to my intellectual property. That's because, in her eyes,
what she took from me was different. It was, as she put it, "news."
She copied my description of Dorothy Lewis's collaborator, Jonathan Pincus,
conducting a neurological examination. She copied the description of the
disruptive neurological effects of prolonged periods of high stress. She copied
my transcription of the television interview with Franklin. She reproduced a
quote that I had taken from a study of abused children, and she copied a
quotation from Lewis on the nature of evil. She didn't copy my musings, or
conclusions, or structure. She lifted sentences like "It is the function
of the cortex--and, in particular, those parts of the cortex beneath the
forehead, known as the frontal lobes--to modify the impulses that surge up from
within the brain, to provide judgment, to organize behavior and
decision-making, to learn and adhere to rules of everyday life." It is
difficult to have pride of authorship in a sentence like that. My guess is that
it's a reworked version of something I read in a textbook. Lavery knew that
failing to credit Partington would have been wrong. Borrowing the personal
story of a woman whose sister was murdered by a serial killer matters because
that story has real emotional value to its owner. As Lavery put it, it touches on
someone's shattered life. Are boilerplate descriptions of physiological
functions in the same league?
It also matters how Lavery chose to use my words. Borrowing crosses the line
when it is used for a derivative work. It's one thing if you're writing a history
of the Kennedys, like Doris Kearns Goodwin, and borrow, without attribution,
from another history of the Kennedys. But Lavery wasn't writing another profile
of Dorothy Lewis. She was writing a play about something entirely new--about
what would happen if a mother met the man who killed her daughter. And she used
my descriptions of Lewis's work and the outline of Lewis's life as a building
block in making that confrontation plausible. Isn't that the way creativity is
supposed to work? Old words in the service of a new idea aren't the problem.
What inhibits creativity is new words in the service of an old idea.
And this is the second problem with plagiarism. It is not merely extremist.
It has also become disconnected from the broader question of what does and does
not inhibit creativity. We accept the right of one writer to engage in a
full-scale knockoff of another--think how many serial-killer novels have been
cloned from "The Silence of the Lambs." Yet, when Kathy Acker
incorporated parts of a Harold Robbins sex scene verbatim in a satiric novel,
she was denounced as a plagiarist (and threatened with a lawsuit). When I
worked at a newspaper, we were routinely dispatched to "match" a
story from the Times: to do a new version of someone else's idea. But had we
"matched" any of the Times' words--even the most banal of phrases--it
could have been a firing offense. The ethics of plagiarism have turned into the
narcissism of small differences: because journalism cannot own up to its
heavily derivative nature, it must enforce originality on the level of the
sentence.
Dorothy Lewis says that one of the things that hurt her most about
"Frozen" was that Agnetha turns out to have had an affair with her
collaborator, David Nabkus. Lewis feared that people would think she had had an
affair with her collaborator, Jonathan Pincus. "That's slander,"
Lewis told me. "I'm recognizable in that. Enough people have called me and
said, 'Dorothy, it's about you,' and if everything up to that point is true,
then the affair becomes true in the mind. So that is another reason that I feel
violated. If you are going to take the life of somebody, and make them
absolutely identifiable, you don't create an affair, and you certainly don't
have that as a climax of the play."
It is easy to understand how shocking it must have been for Lewis to sit in
the audience and see her "character" admit to that indiscretion. But
the truth is that Lavery has every right to create an affair for Agnetha,
because Agnetha is not Dorothy Lewis. She is a fictional character, drawn from
Lewis's life but endowed with a completely imaginary set of circumstances and
actions. In real life, Lewis kissed Ted Bundy on the cheek, and in some
versions of "Frozen" Agnetha kisses Ralph. But Lewis kissed Bundy
only because he kissed her first, and there's a big difference between
responding to a kiss from a killer and initiating one. When we first see
Agnetha, she's rushing out of the house and thinking murderous thoughts on the
airplane. Dorothy Lewis also charges out of her house and thinks murderous
thoughts. But the dramatic function of that scene is to make us think, in that
moment, that Agnetha is crazy. And the one inescapable fact about Lewis is that
she is not crazy: she has helped get people to rethink their notions of
criminality because of her unshakable command of herself and her work. Lewis is
upset not just about how Lavery copied her life story, in other words, but
about how Lavery changed her life story. She's not merely upset about
plagiarism. She's upset about art--about the use of old words in the service of
a new idea--and her feelings are perfectly understandable, because the
alterations of art can be every bit as unsettling and hurtful as the thievery
of plagiarism. It's just that art is not a breach of ethics.
When I read the original reviews of "Frozen," I noticed that time
and again critics would use, without attribution, some version of the sentence
"The difference between a crime of evil and a crime of illness is the
difference between a sin and a symptom." That's my phrase, of course. I
wrote it. Lavery borrowed it from me, and now the critics were borrowing it
from her. The plagiarist was being plagiarized. In this case, there is no
"art" defense: nothing new was being done with that line. And this
was not "news." Yet do I really own "sins and symptoms"?
There is a quote by Gandhi, it turns out, using the same two words, and I'm
sure that if I were to plow through the body of English literature I would find
the path littered with crimes of evil and crimes of illness. The central fact
about the "Phantom" case is that Ray Repp, if he was borrowing from
Andrew Lloyd Webber, certainly didn't realize it, and Andrew Lloyd Webber
didn't realize that he was borrowing from himself. Creative property, Lessig reminds
us, has many lives--the newspaper arrives at our door, it becomes part of the
archive of human knowledge, then it wraps fish. And, by the time ideas pass
into their third and fourth lives, we lose track of where they came from, and
we lose control of where they are going. The final dishonesty of the plagiarism
fundamentalists is to encourage us to pretend that these chains of influence
and evolution do not exist, and that a writer's words have a virgin birth and
an eternal life. I suppose that I could get upset about what happened to my
words. I could also simply acknowledge that I had a good, long ride with that
line--and let it go.
"It's been absolutely bloody, really, because it attacks my own notion
of my character," Lavery said, sitting at my kitchen table. A bouquet of
flowers she had brought were on the counter behind her. "It feels
absolutely terrible. I've had to go through the pain for being careless. I'd
like to repair what happened, and I don't know how to do that. I just didn't
think I was doing the wrong thing . . . and then the article comes out in the New
York Times and every continent in the world." There was a long
silence. She was heartbroken. But, more than that, she was confused, because
she didn't understand how six hundred and seventy-five rather ordinary words
could bring the walls tumbling down. "It's been horrible and bloody."
She began to cry. "I'm still composting what happened. It will be for a
purpose . . . whatever that purpose is."