Law and Literature Part 22

53. Arnot, note 47 above, at 1866.

representative incident. Real people are too complicated, many novelists say, to be put into a novel without change.54 By taking liberties with its real-life models, a work of literature can highlight aspects of human nature that are only dimly visible in real people.

A mundane but important consideration is that it is difficult for a publisher to do a libel check on a fictional ma.n.u.script submitted for publication. The publisher is unlikely to know who the people are on whom the fictional characters are based (or even whether the characters are based on real people) and will therefore be unable to determine the likelihood that the ma.n.u.script contains defamatory material. Yet if, as is usually the case, the person libeled is a private figure, the publisher will be legally liable if found by a jury not to have used due care in checking the ma.n.u.script for potential defamation. The publisher will be reluctant to entrust his fate to a jury's determination of due care. The publisher's contract with the author will require the author to indemnify the publisher if the latter is forced to pay a libel judgment, but most authors will be unable to afford the indemnity.

Although a cost-benefit a.n.a.lysis might seem to condemn legal liability for defamation by fiction, the objections to abolishing liability are compelling. Abolition would allow a defamer to make small fictional additions to a basically nonfictional work and call the result fiction. It would also create the appearance of placing fiction on a pedestal that it is not ent.i.tled to occupy; it would be like proposing that writers be exempted from the income tax.55 See, for example, Writers on Writing 203204 (Walter Allen ed. 1948). Cf. E. M. Forster, Aspects of the Novel, ch. 3 (1927); Nadine Gordimer, Writing and Being, 115 (1995).

They have in fact tussled with the Internal Revenue Service over the proper tax treatment of their expenses, seeking what might be thought special treatment. See, for example, Hadley v. Commissioner, 819 F.2d 359 (2d Cir. 1987); John Warren Kindt, "The New a.s.sault on Freedom of Thought: Section 263A of the Internal Revenue Code," 33 St. Louis University Law Journal 137 (1988).

chapter 14.

Protecting (Other) Writers

What Is an "Author"?

e think of a work of imaginative literature as the work of a

specific person (rarely, of two or more persons collaborating- Conrad and Ford, for example, or Beaumont and Fletcher, or the authors of the books of the Old Testament, in which multiple hands are evident). And this person, the "author," "makes it up" rather than merely copying or imitating the text of some predecessor. The laws that confer rights and impose duties upon authors are based upon this picture of the creative process. The picture is false. The attribution of literary works to specific individuals as authors, with all the ethical, interpretive, and legal implications of that attribution, is, as I noted in chapter 8, citing Michel Foucault, a cultural artifact.1 Works of literature used often to be published anony 1. The literature applying Foucault's insight to copyright and related matters discussed in this chapter is well ill.u.s.trated by the essays in The Construction of Authorship: Textual Appropriation in Law and Literature (Martha Woodmansee and Peter Jaszi eds. 1994), and by Mark Rose, Authors and Owners: The Invention of Copyright (1993). See also James Boyle, Shamans, Software, and Spleen: Law and the Construction of the Information Society (1996); Cynthia J. Brown, Poets, Patrons, and Printers: Crisis of Authority in Late Medieval France (1995); Robert H. Rotstein, "Beyond Metaphor: Copyright Infringement and the Fiction of the Work," 68 Chicago-Kent Law Review 725 (1993). On the origins of copyright, see also 518.

mously, or their authorship was ascribed to kings or to fict.i.tious ent.i.ties such as muses. Moses (who may not even have existed) did not write the five books of Moses (one of which describes his death and burial), King David did not write the Psalms, and St. Matthew did not write the Gospel according to St. Matthew. In ancient times it was a common convention to a.s.sign authorship not to the actual writer of a work but to someone whose identification with it would lend it authority. Fict.i.tious ascription survives in the practice of ascribing ghostwritten works to the ghost's hirer; judges are the "authors" of opinions written by their law clerks.

"Authorship" in short is an ascribed status rather than a natural kind. The notion that one is an author only if one wrote the work rather than having discovered, copied, improved, praised, financed, commanded, or sponsored it is a convention of particular cultures, a convention the causes of which may be as much material as ideological. A medieval writer of books was a member of a team of equally skilled craftsmen (others being the binder, the scribe or later the printer, the ill.u.s.trator, the seller, perhaps the censor) engaged in the production of a book.2 And anyway most newly published books were revisions or translations of old works. As the fraction of books that were newly written rose, as the waning of censorship made writing a less dangerous activity (and signified that it was less feared), and as the advent of printing and binding machinery deskilled the nonwriting contributors to book publication, the writer began to stand out from the team: he became the "author." This movement was aided by the steady fall in the price of copies with the advent of printing and with subsequent improvements in printing technology. The fall in price enabled a shift in the source of an author's income from a patron to whom he was known personally to a diffuse audience of strangers-the purchasers of relatively inexpensive printed copies for whom the author's name, like a trademark, signaled the character and quality of the book. With the author's and publisher's income now threatened by unau- Fedor Seifert, Van Homer bis Richard Strauss: Urheberrecht in Geschichten und Gestalten, chs. 110 (1989). The discussion of copyright law in this chapter draws in part on William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (2003), esp. chs. 2, 4, and 6.

2. Martha Woodmansee, "On the Author Effect: Recovering Collectivity," in The Construction of Authorship, note 1 above, at 1516.

thorized cheap copying, a demand for protection against such copying emerged. My effort in this chapter is to trace the rise of legal protection for literary works through the development of copyright law, and of a strong norm against plagiarism, and to a.s.sess the effects on literature.

Copyright, Plagiarism, and Creativity If I sow a crop but anyone can reap it, I am bearing the cost of the crop and others will be obtaining the benefit. The prospect will create incentives to shift investment from agriculture to activities that do not require as much preparatory investment, such as hunting. It has long been thought that a similar problem would arise if authors had no property right in what they wrote. Then anyone could copy their writings; an author would be unable to secure royalties; and the amount of writing would drop as authors reallocated their time to other pursuits.

Yet although the first copyright law in England was not enacted until 1710 and was far narrower than modern copyright laws-for instance, translations from a foreign language were not considered to infringe the author's copyright-plenty of great literature was written before 1710 and between then and the enactment of modern copyright laws. How was that possible? One answer is that the cost of writing has always been pretty low-it is mainly the time cost to the author (though it may be a sizable opportunity cost if he has attractive alternative uses of his time)-so authors can afford to write even if they have little hope of obtaining royalties or other income from their writing because they lack copyright protection. This would not be true if writing were a full-time occupation, but most writers write only part-time even if they are well paid for writing. And most writers receive nonmonetary rewards from writing-fame, prestige, the hope of immortality, therapy, inner satisfaction-that may compensate for a meager monetary reward.

Copyright protection is important, moreover, only to an author who is seeking payment for his writing from book buyers. He may instead have a patron who pays him to write, or may receive a public subsidy for writing, or-this is increasingly common-may be paid to teach writing or literature, with the understanding that he will use his free time to write, so that his teaching income is implicitly a writing income as well. It is a modern form of patronage.

For centuries after the invention of the printing press, moreover, books, though cheap to produce relative to producing ma.n.u.script copies by hand, continued to be expensive relative to the other inputs into book publishing, such as the author's time. The higher the cost of a copy relative to that of the original, the smaller the advantage to the copier of not having borne all the costs of creating the original, including the cost of compensating the author for his contribution to the work. If that cost is only 1 percent of the total cost, the copier will derive only a 1 percent cost advantage over the original publisher from not bearing it. Moreover, it may take a long time to make copies economically, and the lag will give the author and publisher of the original an interval in which to make money from sales of the book despite the absence of legal protection against copying. That is an important factor in drama. If most plays have only a short run (as was true in Shakespeare's day just as it is in ours, though plays were often revived after their initial run), by the time a pirate acquires the script and produces the play the public may have lost interest in it. That prospect is a deterrent to piracy.

And, paradoxical as this may seem, the absence of copyright protection is a benefit to authors as well as a cost to them, because it reduces the cost of writing by enabling an author to copy freely from his predecessors. That is an important and neglected point to which I'll return.

Another reason for the lag in adopting a formal copyright law was that there were functional equivalents to copyright, although they were limited.3 In England publishers of especially expensive or politically sensitive books, such as the Bible and law books, were sometimes given printing patents, the equivalent of copyright, by the Crown. And because the Stationers' Company had a monopoly of the books registered by it, a member of the company (which was composed, however, of printers and booksellers, not authors) could obtain the equivalent of copyright protection by producing a book-or even just by buying a copy of a book- 3. John Feather, "From Rights in Copies to Copyright: The Recognition of Authors' Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries," in The Construction of Authorship, note 1 above, at 191; Rose, note 1 above, at 912, 17 (1993); David Saunders, Authorship and Copyright 4751 (1992). Parallel developments in sixteenth-century France are traced in Brown, note 1 above, and in sixteenth-century Germany in Seifert, note 1 above, ch. 9.

*and registering it. And we know from Milton's contract for the sale of the uncopyrighted Paradise Lost to a publisher in 1667 that publishers would pay authors a significant sum for the author's contractual promise not to sell copies to anyone else.4 Even today copyright protection is limited both in time-generally the author's lifetime plus 75 years-and in the elements of the copied work that are protected. Only the exact or nearly exact verbal form is fully protected. A subsequent author is free to copy genre, technique, style, and even-to a significant though not unlimited extent-characters and plot.5 The result is that copyright law discriminates among types of literary work. By doing so it may be distorting writers' choices of which genres to work in. A lyric poem receives maximum protection because the verbal pattern is almost everything in poetry and it is verbal pattern that copyright law protects most securely. But the protection even of lyric poems is incomplete. If a poem employs a new meter (such as dactylic hexameter) or a new form (such as the sonnet), the poet will not be able to prevent the copying of the meter or the form. Nevertheless novels and plays, in which plot and character often are more important than the specific words, receive much less protection than poetry.

Since the property right is incomplete, one might suppose that literature is being underproduced and therefore copyright protection should be expanded in both scope and duration-perhaps made comprehensive and perpetual, or in short "complete." But attempting to make it complete would founder on the difficulty of distinguishing between copying and independent inspiration when one is dealing with structural resemblances, such as similar plots, themes, and character types. Works of literature, as we know, do not endure unless they depict permanent features of the human condition. Had Homer not lived, eventually someone else would have written a poem about revenge, G.o.ds, and a war over See Peter Lindenbaum, "Milton's Contract," in The Construction of Authorship, note 1 above, at 175; Lyman Ray Patterson, Copyright in Historical Perspective 7374 (1968). The author could not grant outright the right to publish, because the existence of censorship meant that no one had a legally protected ent.i.tlement to publish. Id. at 73.

See June n.o.ble and William n.o.ble, Steal This Plot: A Writer's Guide to Story Structure and Plagiarism (1985)-a distillation, for aspiring writers of fiction, of 13 plots lawfully appropriable from works of literature.

a beautiful woman. Yet once the Iliad comes into being, determining whether subsequent works on these themes are copying the Iliad or copying life becomes difficult. Hamlet said that the aim of literature "is to hold as 't were a mirror up to nature" (III.2.22). Since the authorial mirrors will be reflecting the same, uncopyrightable phenomena-love, war, crime, vengeance, sickness, death, folly, and so forth-there are bound to be similarities among works of literature even if each author is a true "original," owing nothing to his predecessors. As Oscar Crease acknowledges in A Frolic of His Own, he cannot copyright the Civil War or his grandfather.

If Ovid, Dante, Chaucer, Shakespeare, Hemingway, or Orwell could copyright (and in perpetuity!) the story of star-crossed lovers, there would be endless disputes, costly to resolve, over whether subsequent stories about such lovers infringed copyright (and whose copyright?) or owed their resemblance to the copyrighted work merely to the common subject matter. And so with the invention of tragedy by Aeschylus-if he was the inventor (those who view the Iliad as the tragedy of both Achilles and Hector say it was Homer), or the invention of the mystery novel by Wilkie Collins (or was Hamlet the first detective story? Or Oedipus Tyrannus?), or the invention of other literary techniques (the sonnet, terza rima, the obtuse narrator, blank verse, the rhymed couplet, the realistic depiction of s.e.x, and so forth).

Another way to grasp the problem is to note that what is categorized as literature is addressed to a ma.s.s audience-regardless of the author's intentions-because even the most esoteric writings must, in order to pa.s.s the test of time, have accrued over time a large number of readers. To do this a work must be relatively impervious to cultural change. It must therefore deal, as I keep emphasizing, with the permanent aspects of human experience. That is why paraphrasing literature tends to yield bromides and ba.n.a.lities. Ideas in literature are not like those of science or philosophy; they are more like painters' subjects. As they comprise a limited stock of situations, narratives, and character types, there is bound to be overlap among authors. Dante never read Homer, but he read and imitated Virgil, and the Aeneid is modeled on the Homeric epics. So would Dante under a regime of perpetual copyright covering literary techniques have owed royalties to Homer's descendants, a.s.suming the *copyright stayed in the family? (Surprisingly, the Gospel according to Mark also borrows from Homer.)6 The recursion would not stop with Homer. The best theory of the composition of the Homeric epics is that the genius or geniuses whom we call "Homer" reorganized existing epic works and added extensive finishing touches.7 And would everyone who wrote a poem in blank verse or rhymed couplets have to obtain a copyright license from the respective inventors of those techniques?

The licensors would not set license fees so high that all new writers were deterred from seeking a license, because then there would be no license revenues. But the administrative costs of licensing under such a regime would be very steep even if the problems of identifying original inventors and their heirs could be solved; and the more costly licensing is, the less of it there will be. All property rights are costly to administer, copyrights and other intellectual property especially so because the infringed and infringing works lack the ready observability of conflicting uses of tangible property. Copyright fees would be only the beginning; an author would have to conduct a costly, time-consuming search to identify all the writers with whom he might have to negotiate a copyright license. If every author of an epic poem had to pay royalties to Homer's heirs, then Virgil, Dante, Ariosto, Milton, Pope, Goethe, and others would have had to incur a substantial additional expense to write their epics.8 The expense might have deflected some of them to a different literary form, or caused them to write less. Homer's heirs would like to negotiate with each prospective writer of an epic a royalty not so steep as to deter the writer, since if he were deterred there would be no royalty. But this would be 6. Dennis R. MacDonald, The Homeric Epics and the Gospel of Mark (2000).

See, for example, Seth L. Schein, The Mortal Hero: An Introduction to Homer's Iliad, ch. 1 (1984), and references there. As Rudyard Kipling put it: "When 'Omer smote 'is bloomin' lyre,/He'd 'eard men sing by land and sea;/An'what he thought 'e might require,/'E went an' took-the same as me!"

On Homer's influence on subsequent epic writers, see Martin Mueller, The Iliad, ch. 7 (1984). The topic of literary influence is vast. See, for example, Goran Hermeren, Influence in Art and Literature (1975); K. K. Ruthven, Critical a.s.sumptions, ch. 8 (1979); Influx: Essays in Literary Influence (Ronald Primeau ed. 1977). For a painstaking examination of one great writer's influence, see Raymond Dexter Havens, The Influence of Milton on English Poetry (1922).

infeasible, if only because of search costs, costs of negotiations, and other expenses incident to copyright licensing.

So writers collectively might prefer less than complete copyright protection in order to reduce the cost to them of writing their own works, even though this would mean forgoing some income because they would be less fully protected against copying. How advantageous this swap would be would depend on the extent to which the writers of a particular era drew on the work of their predecessors. In Shakespeare's day, it was very great. His characteristic mode of dramatic composition was to borrow the plot and most of the characters-and sometimes some of the actual language-from an existing work of history, biography, or drama and to embroider the plot, add some minor characters, alter the major ones, and write most, often all, of the dialogue. Shakespeare made up Antony's great funeral oration; no part of it is in his source, North's translation of Plutarch. But we shall see that for the description of Cleopatra in her barge in Antony and Cleopatra Shakespeare merely edited North-Plutarch's description, though he did so brilliantly and vastly improved it.

So extensive was the borrowing by Elizabethan dramatists that some of their plays would be cla.s.sified by modern copyright law as "derivative" works, which infringe the original unless the author of the original has authorized them. John Gross describes a goofy play by St. John Irvine, The Lady of Belmont, about the characters in The Merchant of Venice ten years later. Ba.s.sanio has run through Portia's money and is about to start an affair with Jessica, in whom Lorenzo has lost interest. Shylock, rich again after his coerced conversion to Christianity, drops in on Portia and the others and they chat about old times. If copyright were perpetual, this sequel, which appears to contain no hint of parody, would be a derivative work and so infringe The Merchant of Venice unless authorized by Shakespeare's heirs.9 Shakespeare did to other writers what Irvine did to him. Alexander Lindey gives a good example of Shakespearean plagiarism in The Tempest; notes (with considerable exaggeration, however) that "some of the most impressive pa.s.sages in the Bard's Roman plays are Sir Thomas 9. Gross, Shylock: A Legend and Its Legacy 228229 (1992). In contrast, Jane Smiley's novel A Thousand Acres (1991) is based so loosely on King Lear as merely to echo rather than (were King Lear copyrighted) to infringe.

*North's prose strung into blank verse"; and reports that of the 6,033 lines in the first three parts of Henry VI, 1,771 were copied verbatim (presumably from Holinshed) and 2,373 were paraphrased from the same source.10 Measure for Measure ill.u.s.trates the trouble Shakespeare would have found himself in under modern copyright law. Its main source was the play Promos and Ca.s.sandra, written by George Whetstone in 1578 and thus recent enough to have been protected had there been a copyright law. (Apparently no copy of Whetstone's play had been registered with the Stationers' Company.) I ignore the complications created by the fact that Whetstone himself had borrowed heavily from his predecessors.

The play is set in a Hungarian city in which the law against fornication has not been enforced for a long time. Promos, the king's deputy, sentences Andrugio to death for fornication. Andrugio's sister, Ca.s.sandra, pleads with Promos for his life. Promos at first refuses but then relents on condition that she have s.e.x with him. She agrees and they have s.e.x, but he reneges on his promise and orders the jailer to send him Andrugio's severed head. The jailer subst.i.tutes the head of another, recently executed felon. (The literary device of subst.i.tuting someone else for the condemned goes back at least as far as Ovid's rendition of the legend of Jason and Medea. Ovid's heirs would have been among the greatest all-time beneficiaries of a system of complete copyright-or the heirs of whomever Ovid got his stories from!) Ca.s.sandra complains to the king, who orders that Promos shall marry her and then be beheaded. As soon as the marriage is solemnized, Ca.s.sandra discovers that she loves Promos, or at least that she owes him the duties of a wife. She pleads movingly for his life. The king rebuffs her until Andrugio-until then thought to be dead- steps forward; the king then pardons both Andrugio and Promos.

10. Lindey, Plagiarism and Originality 7475 (1952). Lindey's book contains many other examples of plagiarism from various periods. See also Robert Macfarlane, Original Copy: Plagiarism and Originality in Nineteenth-Century Literature (2007); Francoise Meltzer, Hot Property: The Stakes and Claims of Literary Originality, ch. 2 (1994); Thomas MacFarland, Originality and Imagination 2326 (1985); Horace G. Ball, The Law of Copyright and Literary Property 16 (1944). On Dostoevsky's heavy borrowings in The Brothers Karamazov, see Victor Terras, A Karamazov Companion: Commentary on the Genesis, Language, and Style of Dostoevsky's Novel 1124, 2731 (1981). On Shakespeare's copying-and copying of Shakespeare by later writers-see also Douglas Bruster, Quoting Shakespeare 52117, 171209 (2000).

Shakespeare made the plot much more ingenious and rewrote the dialogue, while retaining the theme of justice perverted by a corrupt judge. Although the standards for infringement by paraphrase-that is, by copying that is not verbatim-are inherently vague,11 he used so many non-obvious details of Whetstone's plot that he would have been guilty of copyright infringement under modern law. And since the plot of Whetstone's play was fict.i.tious, Shakespeare could not have argued that he was copying history rather than Whetstone.

An influential treatise, applying the test of "substantial similarity" that many courts use to determine copyright infringement, concludes that West Side Story would infringe Romeo and Juliet if the latter were copyrighted.12 If this is right, then Measure for Measure would infringe Promos and Ca.s.sandra, Ragtime would infringe Michael Kohlhaas, and Romeo and Juliet itself would have infringed Arthur Brooke's play The Tragicall Historye of Romeo and Juliet, published in 1562, which in turn would have infringed several earlier Romeo and Juliets,13 all of which might have infringed Ovid's story of Pyramus and Thisbe-which in A Midsummer Night's Dream Shakespeare staged as a play within the play: still another infringement of Ovid's "copyright." Had the Old Testament been under copyright, Paradise Lost would have infringed it, as would Thomas Mann's novel Joseph and His Brothers.

Opera and musical theater furnish innumerable examples of creative copying, such as My Fair Lady, based on Shaw's play Pygmalion, Britten's opera Billy Budd, and Verdi's Shakespearean operas. Likewise films,14 such as High Society, based on The Philadelphia Story; High Anxiety, based on Vertigo; and Silk Stockings, based on Ninotchka; as well as remakes, such as the 1978 remake of the 1956 cla.s.sic Invasion of the "If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wa.s.sail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress." Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (L. Hand, J.).

12. Nimmer on Copyright, vol. 3, 13.03[A], pp. 13.2613.27 (1986).

See Narrative and Dramatic Sources of Shakespeare, vol. 1, pp. 269283 (Geoffrey Bullough ed. 1957).

14. See Dan Harries, Film Parody (2008).

*Body s.n.a.t.c.hers and the several remakes of Hitchc.o.c.k's The Thirty-Nine Steps.15 Woody Allen's movie Play It Again, Sam quotes a scene from Casablanca. Countless movies are based on books, such as The Thirty-Nine Steps (based on John Buchan's novel of that name) and For Whom the Bell Tolls (based on Hemingway's novel). A number of Shakespeare's plays have been made into movies; there are even a number of Milton knockoffs in popular culture.16 All these are examples of derivative works, which under modern copyright law require authorization from the owner of the copyright on the original.

Even before there was a copyright law, there was, for example in the Renaissance, a notion of improper copying ("plagiarism" in a loose sense that I try to refine below).17 But by modern standards it was extremely limited.18 Early in his career Shakespeare may have been accused of plagiarism by another playwright, Robert Greene, but if so (an unresolved issue) the accusation did not stick. By modern standards Shakespeare was a plagiarist. He dodged Greene's charge because a strong concept of plagiarism depends on a belief that originality is the heart of creativity, and the dominant theory of literary creativity in the Renaissance, as it had been in cla.s.sical and medieval times, was not original creation but creative imitation, or incremental improvement: the imitator was free to borrow extensively from previous writers as long as he added value to what he borrowed.19 As Milton put it, "If [the work copied from] be not bettered by the borrower, among good authors is accounted See Play It Again, Sam: Retakes on Remakes (Andrew Horton and Stuart Y. McDougal eds. 1998).

Milton in Popular Culture (Laura Lunger Knoppers and Gregory M. Colon s.e.m.e.nza eds. 2006).

See Thomas M. Greene, The Light in Troy: Imitation and Discovery in Renaissance Poetry (1982); Nick Groom, "Forgery and Plagiarism," in A Companion to Literature from Milton to Blake 94, 102109 (David Womerseley ed. 2000).

See, for example, Thomas Mallon, Stolen Words: Forays into the Origins and Ravages of Plagiarism (1989), and Meltzer, note 10 above.

As emphasized in Harold Ogden White, Plagiarism and Imitation during the English Renaissance: A Study in Critical Distinctions (1933). See also Richard McKeon, "Literary Criticism and the Concept of Imitation in Antiquity," in Critics and Criticism: Ancient and Modern 147 (R. S. Crane ed. 1952); Ruthven, note 8 above, ch. 7 and pp. 123124; Stephen Orgel, "The Renaissance Artist as Plagiarist," 48 English Literary History 476 (1981).

Plagiare."20 The borrowing that Milton approved of and that Paradise Lost exemplifies-to us stealing-was a way of expressing, in a tradition-oriented society, respect for ill.u.s.trious predecessors. Such a society is more likely to look backward to a golden age than forward to a future made bright by progress, and more likely therefore to want to maintain continuity with the past than to break with the past for the sake of the future. One clue to the changing fashions in literary borrowing is that the use of quotation marks to indicate quotations, rather than for emphasis, did not become a binding norm until late in the eighteenth century.21 It was in the Renaissance that cla.s.sical antiquity was rediscovered, and this made it natural for poets and playwrights to employ cla.s.sical forms as their models, and thus to imitate; and since writers were not yet revered as geniuses there was no expectation that they would possess a high order of originality. "Early Modern plays were only very rarely regarded as 'literature' in a sense recognisable today. They are better regarded as raw material fuelling the profitable entertainment industry of Early Modern London, much as film scripts are the raw material of today's film industry."22 The modern equation of literary creativity with originality is a legacy of the Romantic era, which celebrated the artist as the exemplary individual-lonely, self-fashioning, Promethean.23 "The originality of genius replaced the subordinate relation to the muse. Inspiration would well up from within instead of being imposed from the outside. a.s.sertion would replace receptivity."24 20. John Milton, Eikonoklastes, ch. 23 (1649).

Margreta de Grazia, "Sanctioning Voice: Quotation Marks, the Abolition of Torture, and the Fifth Amendment," in The Construction of Authorship, note 1 above, at 290291.

Jonathan Hope, The Authorship of Shakespeare's Plays: A Socio-Linguistic Study 3 (1994).

See, for example, Ruthven, note 8 above, ch. 7; Hermeren, note 8 above, at 129144; James D. A. Boyle, "The Search for an Author: Shakespeare and the Framers," 37 American University Law Review 625 (1988). The conventional landmark in the emergence of the modern concept of artistic creativity is Edward Young's book Conjectures on Original Composition (1759), but the notion of literary genius in England goes back at least as far as Dryden in the previous century. See also Patricia Phillips, The Adventurous Muse: Theories of Originality in English Poetics 16501760 (1984).

Leo Braudy, The Frenzy of Renown: Fame and Its History 419 (1986). "The vital criticism that Stendhal makes of his hero . . . is that he is living not his own life, but a modified *The high value that began to be placed on originality was evidenced by a movement from anonymous to identified authorship-a movement, closely connected to Romanticism, that we may call the "rise of personality." Webster's Third New International Dictionary gives several pertinent definitions of "personality": "the fact of being an individual person," "the complex of characteristics that distinguishes a particular individual or individualizes or characterizes him in his relationships with others," and "the social characteristics of commanding notice, admiration, respect, or influence through personal characteristics." Creativity when defined as creative imitation had implied the subordination of the creator's originality to that of an earlier creator or creators. The creation of a new work was essentially a collaboration with the creator of an old one. With the rise of Romanticism in philosophy, literature, art, and music, creativity became reconceived as the expression of an individual personality. This gave a boost to copyright law because copying appropriates personality. Plagiarism and forgery are other concepts invoked to protect personality by limiting copying, and their definition expanded too.

The older conception of creativity is ill.u.s.trated by what Shakespeare did with North's translation of Plutarch in the barge scene in Antony and Cleopatra. Here is North: She disdained to set forward otherwise, but to take her barge in the river of Cydnus; the p.o.o.p whereof was of gold, the sails of purple, and the oars of silver, which kept stroke in rowing after the sound of the music of flutes, howboys, citherns, viols, and such other instruments as they played upon in the barge. And now for the person of herself: she was laid under a pavilion of cloth of gold of tissue, apparelled and attired like the G.o.ddess Venus, commonly drawn in picture; and hard by her, on either hand of her, pretty fair boys apparelled as painters do set forth G.o.d Cupid, with little fans in their hands, with the which they fanned wind upon her.25 copy of another's . . . Julien does not invent himself, he conforms to a borrowed model." F. W. J. Hemmings, "The Dreamer," in Stendhal, Red and Black: A Norton Critical Edition 521, 525 (Robert M. Adams ed. 1969).

25. Plutarch, "The Life of Marcus Antonius" (Sir Thomas North trans. 1579), in Narrative and Dramatic Sources of Shakespeare, note 13 above, vol. 5, pp. 254, 274. I have modernized the spelling.

And here is the corresponding pa.s.sage in Shakespeare (II.2.201215): The barge she sat in, like a burnished throne, Burnt on the water. The p.o.o.p was beaten gold; Purple the sails, and so perfumed that The winds were lovesick with them. The oars were silver, Which to the tune of flutes kept stroke, and made The water which they beat to follow faster, As amorous of their strokes. For her own person, It beggared all description: she did lie In her pavilion-cloth-of-gold of tissue- O'erpicturing that Venus where we see The fancy outwork nature. On each side her Stood pretty dimpled boys, like smiling Cupids, With divers-colored fans, whose wind did seem To glow the delicate cheeks which they did cool, And what they undid did.

And here for good measure is T. S. Eliot's version, in Part II of "The Waste Land": The Chair she sat in, like a burnished throne, Glowed on the marble, where the gla.s.s Held up by standards wrought with fruited vines From which a golden Cupidon peeped out (Another hid his eyes behind his wing) Doubled the flames of seven branched candelabra Reflecting light upon the table as The glitter of her jewels rose to meet it.

In Shakespeare's version the gorgeousness of the scene undergoes an extraordinary enhancement,26 while Eliot's pastiche of Shakespeare 26. In like manner, Bullough remarks of Shakespeare's use of Brooke's Romeo and Juliet that "Brooke's poem is a leaden work which Shakespeare trans.m.u.ted into gold. The surprising thing is that Shakespeare preserved so much of his source in vitalizing its dead stuff." Narrative and Dramatic Sources of Shakespeare, note 13 above, vol. 5, at 277278.

*achieves an ironic reduction. Yet under a regime of copyright law Shakespeare would have had to get a license from North in order to be allowed to compose one of the most beautiful pa.s.sages in the Shakespearean oeuvre.27 One cannot exclude the possibility that Shakespeare's plays would have been even better had he been induced by the expense of obtaining such licenses to be more "original." But that seems less likely than that expansive modern copyright laws, by discouraging the kind of creativity that Shakespeare and his contemporaries exhibited, are impairing literary creativity. The literary imagination, as should be apparent from the discussion in chapter 13 of the use of living persons as models of fictional characters, is not a volcano of pure inspiration but a weaving of the author's experience of life into an existing literary tradition.28 Margaret Atwood's novel Oryx and Crake is strikingly original despite its extensive borrowings from earlier works (see chapter 10). She committed no copyright violations, but the more extensive copyright protection is, the more inhibited the literary imagination will be. That is not a good reason for abolishing copyright but it is a reason possibly for narrowing it and more clearly for not broadening it.

In the extraordinary allusiveness of Eliot's poetry we find a concrete reason for his hostility to the Romantic movement. To the Romantic idea of creativity as originality Eliot opposed and in his poems exemplified the older idea of creativity as imitation with enrichment. He was not alone; the echoing of the literature of the past has been a common device of modernist literature. Joyce's Ulysses is only the most famous example. I mentioned Kafka's borrowings from Kleist and d.i.c.kens. The first stanza of Yeats's poem "The Second Coming," which I quoted in chapter 8, borrows from two of Sh.e.l.ley's poems.29 Modern writers, living in the age If the works of Plutarch had been in the public domain, then Shakespeare (and anyone else) could have translated and edited those works without violating North's (hypothetical) copyright. But a translator of a public domain work can copyright his translation; and Shakespeare obviously was copying North's translation rather than copying the original, and so infringing North's (hypothetical) copyright. If Plutarch's works had been copyrighted, Shakespeare would have been infringing that copyright as well. Eliot, however, might have been able to get away with his pastiche under the fair use doctrine, since he took only two lines (plus the reference to Cupid) from Shakespeare and edited them heavily.

For an excellent discussion of this point, see Robert Alter, The Pleasures of Reading in an Ideological Age, ch. 4 (1996).

29. Harold Bloom, Sh.e.l.ley's Mythmaking 94 (1959).

of copyright, are perforce limited to taking from the public domain, as in Doctorow's pastiche of Michael Kohlhaas, unless they negotiate a copyright license. The more ample the copyright protection, the smaller the public domain. Eliot might have added that the Romantic equation of creativity with originality exaggerated the actual practice of the Romantic poets. We now know that Coleridge, seemingly the most "original" of the Romantics, plagiarized other writers.30 Despite the pervasiveness of borrowing in literature, vividly expressed in Northrop Frye's dictum that "poetry can only be made out of other poems; novels out of other novels,"31 so fixated are most of us on the Romantic idea of creativity that it is hard not to sense belittlement-even a note of bardicide-in Mark Rose's avowal that "it would not be wholly inappropriate, I think, to characterize Shakespeare the playwright, though not Shakespeare the author of the sonnets and poems, in a quasi-medieval manner as a reteller of tales."32 It may not be wholly inappropriate, but it is misleading, as if Shakespeare's princ.i.p.al activity had been translating North, Ovid, Holinshed, and his other sources into a contemporary idiom. The value added in his retelling greatly exceeds any debt to his predecessors. If Shakespeare is not the most original writer who ever lived, he may well be the most creative.

Rose may be too much under the influence of Northrop Frye, whose book Anatomy of Criticism organizes the whole of literature into a handful of symbols, genres, modes, and myths. At that level of generality there is nothing new in literature; everyone is a reteller of someone else's tales, and so it is not surprising that Frye should have some tart words to say about copyright. He notes the challenge to the a.s.sumptions underlying the copyright law of "a literature which includes Chaucer, much of whose poetry is translated or paraphrased from others; Shakespeare, whose plays sometimes follow their sources almost verbatim; and Milton, who asked for nothing better than to steal as much as possible out of the Bible."33 But copyright law distinguishes between idea and expression, and most of Frye's examples involve the former. His schematic approach 30. See Norman Fruman, Coleridge, The Damaged Archangel (1971).

31. Frye, Anatomy of Criticism 97 (1957), quoted in Malcolm Budd, Values of Art: Pictures, Poetry and Music 2 (1995).

Rose, note 1 above, at 26.

Frye, note 31 above, at 96. See also id. at 95104.

*and his disavowal of qualitative evaluation obscures the important point that what Chaucer, Shakespeare, and Milton did with inherited or borrowed themes and sources, which would not today deflect a charge of plagiarism, exemplified a higher order of creativity than is commonly attained by works of literature that are more original.

I have thus far been treating plagiarism and copyright infringement interchangeably. But they are not the same thing. Plagiarism is a subset of unacknowledged copying whether or not in violation of copyright law,34 whereas copyright infringement is unlawful copying whether or not the original author is acknowledged. Although plagiarism sounds like a worse offense from a moral standpoint than mere copyright infringement, it is not unlawful as such. We know that literary history is rife with n.o.ble "plagiarisms." But what this really shows is that not all unacknowledged copying, even if it is of vast swatches rather than mere bits of previously published work, is "plagiarism" in a pejorative sense-but it has no other sense. Although there was no explicit acknowledgment of copying in my examples, except in "The Waste Land," to which Eliot appended end notes identifying most of his borrowings, neither was there any likelihood of deception. The reader either had no expectations concerning the ratio of original to copied material or was intended to realize that copying was going on, as in the case of Milton's borrowings from the Bible. Milton was alluding to the Bible, not plagiarizing it in the sense of pretending that he had invented Adam and Eve, Satan, the Garden of Eden, the eating of the forbidden fruit, the expulsion from Eden, and so forth.35 It would be a shame if creative imitation were deemed plagiarism. In a book by Michael Maar36 we learn that Vladimir Nabokov's novel Lolita borrowed extensively from a short story of the same name published many years earlier by a German named Heinz von Eschwege, with whom Nabokov overlapped for a number of years in Berlin. No verbal pa.s.sages See my book The Little Book of Plagiarism (2007), and Perspectives on Plagiarism and Intellectual Property in a Postmodern World (Lisa Buranen and Alice M. Roy eds. 1999).

The distinction between allusion and plagiarism is stressed in Christopher Ricks, Allusion to the Poets 219240 (2002).

36. Marr, The Two Lolitas (2005).

are identical, but apart from the story's having the same t.i.tle as Nabokov's novel, von Eschwege's eponymous heroine, like Nabokov's, is a nymphet with whom the first-person narrator, an older man like Humbert Humbert, falls in love. In both tales they meet in a boardinghouse by a body of water (the Mediterranean in von Eschwege's tale, a lake in Nabokov's); in both the girl is the seducer, is accursed, demonic, dies. The femme fatale motif is common enough-it's an example of a literary idea that can be copied without plagiarism or copyright infringement-and von Eschwege's Lolita, unlike Nabokov's, is, though a girl, not clearly a child. Yet given the ident.i.ty in the names, coincidence is unlikely.

Maybe Nabokov read the story, or heard it described, and then forgot it; maybe he remembered it but concealed his debt because von Eschwege had become a prominent n.a.z.i journalist; or maybe he feared being thought unoriginal if he acknowledged a predecessor. It hardly matters. Von Eschwege was dead by the time Nabokov's Lolita was published, and if ever there was a case of creative imitation it was Nabokov's elaboration of the germ (von Eschwege's story is only 13 pages long) of the idea that he may have gotten from the earlier writer. Well, not quite "ever": the ratio of the number of words in Nabokov's novel to the number in von Eschwege's story is less than that of the number of words in the account of the fall of man in Paradise Lost to the number of words in the account in Genesis.

In 1995 an Italian writer named Pia Pera published Diario di Lo ("Lolita's Diary"), an explicit takeoff on Lolita. It retells the novel from Lolita's standpoint. About two-thirds of it sticks closely to the original, both in plot details and in wording; the rest consists of a narrative of Lolita's life before she met Humbert Humbert and after she left him; for in Pera's novel she does not die. When Nabokov's estate learned that an English edition of Diario di Lo was planned, it sued for copyright infringement. (The case was settled out of court.) The book is not plagiarism, because it makes no effort to conceal its debts to Lolita; indeed it flaunts them. Nor is there any effort to pa.s.s off the work as Nabokov's; he died many years before Diario di Lo was written, and Pera does not pretend that it is a previously unknown Nabokov ma.n.u.script. In Shakespeare's time, Pera's novel might well have been considered a proper effort at creative imitation; now probably not, though Nabokov's book probably would be.

The reason Pera's novel is not plagiarism is that deception is of the essence of plagiarism; a copier can take all he wants without being a plagiarist so long as he acknowledges what he's doing. The element of deception explains why the punishment for plagiarism (expulsion from school if the plagiarist is a student, loss of reputation, pulping of the plagiarizing work, and more) so often seems disproportionate to the harm caused. Because the plagiarist attempts to conceal his act, it is often very difficult to detect, and the more difficult a "crime" is to detect the more severely it must be punished for the threat of punishment to be an effective deterrent.

Parody Parody is an ancient literary genre; The Battle of Frogs and Mice is an ancient Greek parody of the Iliad. Parody depends for its effect on the copying of distinctive features of the original, features without which the meaning of the parody would be lost.37 Here, from Part II of "The Sweeniad" by the pseudonymous "Myra b.u.t.tle," is a parody of the opening stanza of "The Waste Land" (footnote omitted): Sunday is the dullest day, treating Laughter as profane sound, mixing Worship and despair, killing New thought with dead forms.

Weekdays give us hope, tempering Work with reviving play, promising A future life within this one.

Thirst overtook us, conjured up by Budweisserbrau On a neon sign: we counted our dollar bills.

Then out into the night air, into Maloney's Bar, And drank whiskey, and yarned by the hour.

Das Herz ist ges...o...b..n, swell dame, echt Bronx.

And when we were out on bail, staying with the Dalai Lama, 37. For a comprehensive history and a.n.a.lysis, see Simon Dent.i.th, Parody: The New Critical Idiom (2000). See also Seymour Chatman, "Parody and Style," 22 Poetics Today 1 (2001).

My uncle, he gave me a ride on a yak, And I was speechless. He said, Mamie, Mamie, grasp his ears. And off we went Beyond Yonkers, then I felt safe.

I drink most of the year and then I have a Vichy.