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.