Impact Crater: A Post-Script



The discussion following my last post, "Fell on Alabama: Brad Vice's Tuscaloosa Night" — carried on in the comments boxes and in back-channel e-mails — was as interesting and enlightening as it was heated and far-reaching.

Some ancillary issues were raised, so I've edited the comments on that post to reflect the substantive exchange on the questions of homage, quotation, borrowing, plagiarism, and copyright violation. I have saved everything and may comment on some of the other issues at a later time, but at present I want to revisit the key issues, reflecting the contributions of our commenters.

For many people the issue is very clear: plagiarism is any unacknowledged borrowing of any prose whatsoever. David Milofsky, for example, a seasoned writer and teacher whom I personally admire, writes to say:

How you can say Vice "forgot" to acknowledge the earlier work is beyond me, but whether he acknowledged it or not, he's in violation of copyright law. The "fair use" provision normally applies either to use in reviews or newspaper comment or to educational purposes.

I disagree with Milofsky on the bounds of fair use, and I think recent case law does as well. I realize, as Mr. Milofsky has argued backchannel, that the situation with music, which was instrumental in the Campbell v. Acuff Rose Music, Inc case I cited before, may not be fully applicable to literature, but it does present a situation in which appropriation for artistic purposes is defensible under the "fair use" provisions of the United States Code.

There is a lot of room in the law, and current cases, such as the one Jason Sanford discusses recently or the ongoing consideration of the legality of Google's Print service, show that our understanding of copyright and of trade-in-discussion may be evolving to expand or restrict such room.

But the question at hand, the question about Vice's actions, is not simply a case of law and legalities. As Robert Spirko writes, "A separate issue is whether he committed plagiarism." Though plagiarism may open onto legal questions — and though our determination of plagiarism, whether in a professional or an educational context, may be informed by the law — our individual determinations of plagiarism and reactions to it seem to turn more tightly on ethical considerations.

Robert Clark Young wrote to characterize Vice's borrowing as theft of labor, and in an ongoing exchange not presented here, Mr. Young and others insisted that if my work had been stolen, or if my home were burglarized and burned, I would understand the violation of Mr. Carmer. The complaint is not simply an address of copyright law but more broadly to our understanding of personal property and to our right to ownership of our own labor and any fruits that arise from it but as well to our sense of what is honest artistic work.

I sympathize. In graduate school, one of my colleagues borrowed a number of lines from my own (unpublished) work and inserted them into his own. We had a huge fight in which he insisted that he was initiating a conversation, that he was building an homage — arguments to which I took great offense at the time, because there was no textual device to signal the borrowing, because my own work was unpublished and so there was no public record to establish my origination of those lines, and because it seemed ludicrous that anyone would pay homage to me or my work. I felt as if I had been erased. And so we didn't speak for some time.

There is a question of respect, which is not necessarily a legal question. I'm glad we've arrived at that.




That said, the present situation is quite a bit different from the situation of my own experience and from any that any of us now reading this could experience.

Mr. Carmer is dead, and though that may make the violation worse in some estimations (Mr. Young wrote that "it means that Mr. Vice is not only a thief, but a grave robber") the labor of the dead, particularly the artistic labor of the dead, has long occupied a status quite different from the labor of the still-living, whether the arena for our consideration is legal or ethical.

Historically, copyright law has sought to maintain a balance between the preservation of the value of labor for the laborer and between the public's interest in an unrestrained dialogue. Copyright terms have been structured to cover the life of the author, to enable the author to retain any benefit of that labor. But copyrights expire, in the interest of work entering the public domain where it may become subject to all sorts of republication, repetition, and transformation.

Currently, the fulcrum of this balance is being modified. The Sonny Bono Copyright Extension Act of 1998 adds another 20 years onto copyright terms that could already extend for more than 70 years, with the idea of providing the fruits of artistic labor not only to the artist but to his or her heirs as well. Though this is now law, there are those who are fighting it, arguing that such extension, as Rob Spirko puts it (though not with respect to this specific act), "serves corporate interests at the expense of public good." The outcome of the legal wrangling over Google Print will affect this discussion.

In considering Carmer's work in the present circumstance, we are considering a work that now inhabits an interesting middle realm, having served its author directly but as yet still waiting to legally become part of the public domain. Whom would Carmer's labor serve today? To what extent does it still belong to him as a figure rather than a legal person? Does it serve his heirs? Does Carmer have a literary executor, and does he or she have any position in the present consideration?




Of course, the primary consideration begins with a consideration of the bounds of and means of quotation and where quotation is clear and where it is obscured, where it is deliberately and strategically covert and where it is deliberately and obscuringly grafted into another text, where it is quotation and where it becomes plagiarism.

The University of Georiga Press's statement that Vice's text "borrowed heavily" (whatever the source of that language) stops short of declaring the work an act of plagiarism, though it does raise that question and our discussion has followed.

Without reducing the exchange too much, I would simply like to note (as I re-enter this matter for some extended and silent consideration over the weekend) two interesting trends that suggest the major outlines for any continuing examination of the matter.

For some the question is whether borrowing of any kind is acceptable, not just legally but ethically, and there may be an aesthetic question, some interest in a certain construction of authority or authorial originiality, involved in that. If I were to reformulate the questions I begin to hear, a la Wayne Booth, I would ask What are the author's responsibilities to the reader, vis-a-vis the fiction itself and its status as fiction?

For others the question concerns the poetics of quotation, the means by which it might be accomplished, signaled, naturalized to the text and yet still be clear as quotation.

One can be interested in both questions, though it seems that if one has determined, in response to the first of these, that borrowing is (whatever else it may be) a violation of the fiction-writer's responsibilities to the fiction and thereby to the reader then there is no point in proceeding to the second question.

The second question is of particular interest to me as a writer of poems, as poetry seems to be much more capable than fiction of accomplishing the sort of thing I think Vice sought to accomplish in borrowing lines from Carmer's text, namely the creation of a textual palimpsest. Poetry has a greater store of mechanisms that can frame — and when we talk about the poetics, the mechanisms of quotation, we're really talking about ways of framing — language the poet does not create, whole cloth, without destroying the literary quality of the text.

I still think, speaking from my own experience of the texts in question, that Vice's title and opening quotation are enough of a frame to have indicated his own awareness of his borrowing and his own expectation that a reader, that some readers, would understand, and I maintain that our presentation at Thicket very early this year of Vice's story alongside the particular excerpt of Carmer's work is an acknowledgment by arrangement, wherein the editorial presentation makes the frame more visible or audible.

And all that leads me to be interested further in the poetics of framing, of quotation.

There are other questions about the cultural frames that situate Vice's work and his present circumstance, and I intend to return to those subsequently. Much of the exchange, in public and backchannel, over the last week with respect to what the South is and what it means, has been very intriguing, and there are responses to be offered. Soon.



COMMENTS



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I'm sorry not to answer the immediate question at hand. I'm still baffled by the idea that Brad began writing this novel while he was still in school and completed it shortly before winning the Flannery O'Connor award -- a time span of around five years. It must have passed through the hands of professors, guides, mentors, friends, EDITORS, and ultimately a committee of judges. If Brad's ommission of an acknowledgment is such an heinous offense, why was it not addressed by someone, any one, over those five years? And wasn't their silence an indicator to Brad that an acknowledment was indeed not necessary?




Jake, the thing that puzzles me about those who continue to shout that Brad meant to decieve and steal the work is that he addressed his homage to Carmer long before the story ever hit print. Brad read "Tuscaloosa Knights" at the 2003 Mississippi Philiological Association's conference at the W, in Columbus.
In the q&a session following the reading Brad talked about Carmer's novel as an important influence and guide.This was right after it was accepted by a magazine, two years prior to this mess. Theft wasn't on his mind.

I personally had not heard of Carmer before Brad's reading, and perhaps the one good thing to come of this is that he will not fall away as literary chaff now, as this puplicity has sold more copies in one week than did the entire past decade.

As far as line for line theft and alteration, it comes with the work. "Good writers borrow, great writers steal."
This is what we who study lit all know.
For example: here is a theft/alteration between two of my favorite authors, both Mississippians--

Barry Hannah: I want to sleep in her uterus with my leg(foot?) hanging out. (Love Too Long, 1979)

Lewis Nordan: "Webber, would you like to crawl inside my uterus and leave you're sock feet hanging out." (sharpshooter Blues, 1990's)

I can't remember Barry's or Nordan's exact phrasing but it definitely says sock feet and uterus and hanging out. Is this theft? I don't think so. is it modified? Yes. Is it great? I'd say hell yes.
Do I think Barry would give a rip? No.
Why? because the late breaking premis is not his. Didn't Freud first claim that all men are just trying through the sexual act to return to the comfort of a woman's/his mother's uterus?

Great writers steal and borrow from other great writers constantly. It is homage.
Unless you are speaking about Shakespeare and Seneca, then it's theft.

As far as the great robert clark young is concerned, he needn't worry about having to "breaka" the nose of anyone stealing his work anytime soon, from what I've read at least.
His seems a grudge based on his inability to be labeled a southern writer anyway, though I must say his pedigree of being the nieghbor's friend's brother's wife's cousin's uncle twice removed was impressive.

Vice is a solid writer and hopefully this attempted lynching by a crew of literary bigots will not shake him much.


Jason Daniel




I hadn't been aware of this post but was interested to see myself quoted and disagreed with. An honorable tradition. It interests me that with all your carrying on about homage, etc, you don't mention one example of a writer "borrowing" in this way from another, but stick to lyricists. I'd really like to see a comment from an intellectual property lawyer to support your interpretation as I've gone one to support mine. In any case, since genetics seems to come into this at some level, I should advance my bonafides as a southern writer as well since I'm the only Jewish descendent of Daniel Boone, through Rebecca Bryan of the Kentucky Bryans. Not to pull rank or anything.




I refer you all to my follow-up post "Taking It Personal: The Politics of Advocacy," in which I extend some of this consideration.

I will soon extend it further in response to Mr. Milofsky's interest in literary precursors. Here, my intention was to continue a consideration of the legal issues and contexts and to answer some of the more interesting features of the public discussion, especially as I am not entirely convinced that producing examples of literary precursors will directly settle the matter: you see Robert Clark Young's recent reply to letters on the NY Press website in which he switches his interest from declaring Vice's sin a sin of plagiarism to finding him guilty of breach of contract --- not that these are exclusive of one another, but I do find interesting the persistent interest in a legal framework without any direct quotation of law. (I hope I shouldn't have to provide examples of quotation as a staple of legal argumentation.)

Finally, I don't think genetics is anything but a canard here, for regional identity and cultural practice do not inhere in genetic code, as far as I know. Otherwise the Jews of Kansas City would not be interested in enjoying the kashrut exception for barbecue Calvin Trillin has discussed on a number of occasions.