Support for Brad Vice and a few words on sampling

I want to thank everyone who has e-mailed me in response to my article and Jake's article on Brad Vice's situation. E-mails have been running 5 to 1 in support of Brad, while online discussions I have taken part in seem to be split (I wonder if this difference results from the reluctance of some writers to speak publically about this issue, for fear of being attacked). This also appears to be an issue that brings out the passion in some people, as seen by the comments left on this blog.

What's more interesting to me is how many writers have contacted me to say that they have written stories based on or using parts of other writers work—not to plagiarize the other author but to comment or expand upon the cultural impact of that original work. One professional writer who e-mail me said she based several of her published novels on other's works because, in her words, "Books are made from books." Another published author, who is preparing a new short story collection, says Brad's situation caused him to go back through his manuscript and make sure he acknowledges everyone and anything that influenced his stories (which, for a well-read writer, can be a long, long list).

In many ways, this issue reminds me of the controversy around sampling, where musicians sample another musician's work in their songs. A number of popular artists do this, including, perhaps most famously, the Beastie Boys. In pop music, sampling both reminds a listener of the original work and also lets them hear that original work in new and exciting ways. A similar thing occured in the movie Forrest Gump, where Tom Hank's character is spliced into historic newsreels to mix fiction with fact.

Naturally enough, music sampling is controversial. Major music labels insist that sampling is theft unless the artist wishing to sample a song first gets permission. Many artists insist that sampling is covered under fair use and is an attempt to comment upon the music that makes up our shared cultural heritage.

All I know is that throughout history all types of artists, including writers, have used variations of sampling. Shakespeare was famous for this. (In fact, Shakespeare may have done much more than sample. Hamlet, for example, was supposedly based on a so-called Ur-Hamlet play written a few years earlier by another playwright, possibly Thomas Kyd.) In my view, this type of sampling is allowed because, as Jake says in his article about Brad's situation, copyright law doesn't mean you can't use excerpts from or comment upon another copyrighted work.

The important thing to remember about writing is that one does not create new works within a vacuum. Every piece of writing plays off of and is a part of our entire literary heritage. Literature is a ballance between the old and the new, between creation and modification.

People would do well to remember that copyright law was created to enable those who create—writers, artists, and so on—to make a living from their work. Copyright law wasn't intended to place a "do not touch" warning on the most important parts of our cultural history.


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You're right about copyright law. While Campbell v. Acuff-Rose dealt with a parody of Orbison's "Pretty Woman" by 2 Live Crew, the principle of transformative use being fair use almost certainly extends beyond parody to the transformative use that Brad made of the article. I've seen not only Souter's unanimous opinion and Kennedy's concurrence but also the brief submitted by Luke Campbell's lawyer, Bruce Rogow, a professor at NSU Law, and I am fairly certain Brad could never be found liable in a courtroom. He is following an old artistic tradition, as you point out.

I have to confess that this is something I've done in my short stories, going back 30 years, but I didn't stop doing it once I went to law school and took courses in intellectual property. For example, this story uses, without attribution, many direct quotes from this publication owned by the University of Nebraska.

I think this kind of thing is done all the time.

Look at the difference between what Richard has done and the Vice example. Richard puts the borrrowed bits in italics, and there is clear difference between the tone and language of what he has borrowed, and the parts of the story that are not in italics. The borrowed material looks and sounds borrowed. Whereas I might think that the detail about looking under the robes at the shoes of the Klansmen is from Vice's imagination--until I read the source he took it from.

Actually, either use is okay. Yes, Richard's story puts the borrowed sections in italics while Vice's doesn't, but this strikes me as a stylistic choice, not a reason to say one is plagiarism and the other isn't. Richard's intent was to take the reader out of the story into the borrowed sections of text, while Vice's intent was to take the reader to an even deeper level of story than existed in Carmer's original discription of the KKK rally. These are different approaches to storytelling, but both are extremely valid uses of another's material within a story.

Thank you for this great site--it brings up a lot of fascinating issues surrounding the gray areas of copyright law and fair use. What I wonder is, could Brad Vice sue University of Georgia to get his award re-instated and his book back in print? I'm completely on his side, and it seems unfair that he doesn't seem to have a method of recourse. I hope a lawyer somewhere would be willing to donate their time and take on his case.