Taking It Personal: The Politics of Advocacy

As many of you know, for several weeks we — and indeed much of the literary world — has been discussing the curious case of Brad Vice, the (former) Flannery O'Connor Award winner who has been accused of plagiarism, whose book has been pulled from bookstores and libraries and destroyed by the University of Georgia Press, whose degree and whose job are now on trial at various instutions of higher learning.

Last week, novelist Robert Clark Young, one of the early public voices against Vice (here and elsewhere), published a piece in The New York Press, entitled "A Charming Plagiarist: The Downfall of Brad Vice," in which he presented what he purports is further evidence of Vice's plagiarism and further proof that Vice is a criminal.

Young's findings should advance the discussion.

There have been a number of new entries in the public consideration. My colleague Jason Sanford has stated here his determination that the passages cited by Young in his new article are indeed paraphrase rather than wholesale quotation, and he has commented that Young's article hints more than passingly at a personal issue between him and Vice, a hint that has been elaborated by other commenters, especially one C. M. Carmano, who describes the terms of the difficulty arising between Vice and Young. And a comment here on our site points out (rightly, I think) that the passages Young scrutinizes in his article relate facts, which cannot be copyrighted, and which can only be stated in so many ways without ceasing to be facts.

Yet, the dialogue, in so many places, is closing down.

My colleague received this e-mail earlier today:

Dear Despicable,

How dare you come to the defense of the plagiarist Brad Vice? Plagiarism is the lowliest act possible for a writer. There is no doubt that Mr. Vice has committed it. ANY fair-minded person would conclude so from a comparison of the texts. Therefore, I can only conclude that you have some ulterior motive in defending this creep. This puts you in the same company as Vice.


Perhaps more than almost any other issue, plagiarism rouses the righteous passions of authors and editors and publishers. Most of us work for credit, without hope of money, and our integrity is the sole basis of our livelihood — which makes even the suggestion of criminality a liability, a damnation.

So, I have received e-mails that declare "Now Vice is completely destroyed" and "If you've got a fork, stick it in him, 'cause he's done."

Nevertheless, I am amazed (as always) by the alacrity with which so many people are willing not only to conclude that their assessment of the situation is accurate but as well that their accuracy gives them the authority and the opportunity to condemn — as morally bankrupt, even criminal — those who disagree and even those who simply do not agree.

Some people have seen enough, I know, even though it seems that not everyone (perhaps not anyone) has seen everything.

Some of the commenters, here and elsewhere, alleged that since the stories in question were also in Vice's PhD dissertation he may have committed his offense earlier and that not only his book but also his degree might be in question. Vice's dissertation director has stated, in a letter posted here, that she knew of Vice's intention to embed quotations from Carmer's Stars Fell On Alabama in his story "Tuscaloosa Knights," and as anyone who wishes to download the dissertation can see, Vice included an epigraph from Carmer's book in his dissertation text, both facts that significantly damage the argument that Vice intended to deceive.

Mr. Young's newest entry extends his argument by attempting to establish a pattern of plagiarism in Vice's work by comparing a handful of sentences from "Report From Junction," which appeared in The Atlantic Monthly, with passages in Jim Dent's The Junction Boys. Here, again, the similarity is unmistakable, but whether or not it is legally plagiarism hinges on one's assessment of the status of the material in the original text and in Vice's text. If these are statements of fact, that could have their roots in reference works, not just in the earlier story, then there's no legal offense, since neither facts nor particular statements of fact can be copyrighted. More to the point, however, is the fact that the editors at The Atlantic Monthly had, as many people know, recognized the similarities between Vice's story and Dent's work and had determined Vice's text to be in the clear. Dan Wickett has published the facts here:

In an email, C. Michael Curtis, Senior Editor of The Atlantic Monthly, and editor of "Report from Junction" as it appeared in The Atlantic Monthly V. 290 n. 1 (July-August 2002), let me know that he was aware of the Dent book "… and decided to postpone its publication until we had worked with Vice to prevent easily-avoided overlap in some particular details. The story of Bear Bryant’s first A&M football team seemed to us well-known and not the property of Mr. Dent or anyone else. Further, the heart of the story we believed, then and now, to be the invention of Brad Vice, even though elements of its drama is placed in the familiar setting, as above."

As I say, for some the facts are clear, but not everyone who's come to some clear conclusion on this matter has seen all the facts.

None of us know, for example, the chain of reasoning that motivated the University of Georgia Press's recall of Vice's book. Maybe it was, as many people believe and indeed as it appears to be, a punitive act. On the other hand, as some have conjectured off the record, it might have been part of a strategy to avoid financial liability: if they make no money off the book, then if the quotations are eventually found to violate the University of Alabama Press's claim on the copyright, then even if they are asked to pay a percentage of their own take, they won't be paying anything. It's not my argument, or my assessment, but it is a possibility, and none of us knows the full story.

None of know what the University of Alabama Press's official response has been. I have been told that Daniel J.J. Ross's e-mail reply, quoted in The Tuscaloosa News and again in Mr. Young's New York Press article, was not an official response but rather a rather quick and informal reply to the case presented by two Tuscaloosa librarians.

Finally, I don't think anyone has received a full explanation from Vice himself. The best we have seems a few quotes in the University of Georgia Press's announcement and as well in a few newspaper articles.

So, though I don't begrudge anyone their assessment that Vice committed plagiarism, however much I disagree with it finally, I do find it rather curious that so many can approach the undecided or the disagreeing and condemn them as criminals.

I can't speak for everyone, by my interest in this discussion has all along been to have a discussion, an exchange of information, to consider all the angles. Nevertheless, some of the comments, some of the back-channel responses, and a great number of e-mails received by my colleagues and by other bloggers previously unknown to me suggest that if you are willing to consider another angle then you must be in league with the criminal (whose guilt is clear and has been proven). As if the attorney who defends a murderer must also be a murderer. Or be interested in murder. Though here, I'm not even sure everyone can agree that a murder has taken place.

Legal issues aside, I realize that even the possibility that the act was committed as alleged, that each bit of evidence or observation that appears to support the allegation is, if not enough to secure a conviction, enough for personal conviction, is enough for personal satisfaction, is enough to trigger a demand for satisfaction and to take the mechanisms of condemnation and of justice and revenge into one's own hands. For some people anyway.

The offense, even if not a legal offense, appears to be a moral offense. Many people seem to feel that Vice, by not announcing his embedding, has committed — beyond the question of a relatively small number of sentences whether stolen, borrowed, or adapted — a serious offense against the fictive contract that says the author will originate the story and its world entirely.

This is to say, I suspect — and I understand as well — that the question of originality isn't confined to an interest in a handful of sentences but is more importantly assigned to the body of work, even to the writer him- or herself. I suspect this concern animates much of Mr. Young's interest in seeing Sewanee as a cabal, as a concerted effort that combined to "make" Vice (even though other bloggers have already shown that this argument is built on sand rather than rock), to somehow fake a career. The occasion to see counterfeit work at one level in some people encourages the desire to prove that the counterfeit is complete and total. And as fiction is a matter of appearance, of perception, and (as a craft and pursuit) about clarity and surety of vision, such appraisals demand an almost coercive enforcement, whether through violence or shame or direct attack.

Such an interest in originality suggests why the response to the allegations and the demonstrations of borrowing in Vice's work (whether plagiarism or allusion) has produced what seems to me a response more severe than that following demonstrations that Stephen Ambrose employed material (at times whole paragraphs) without attribution, Knowing history to be a work of reportage and attribution as much as a work of origination, Ambrose's failure to credit is easily rectified, and even if it casts doubt on the honesty, on the location of his labor, ultimately he survives it, since the report is what is required. In Vice's case, I get the sense that the report wouldn't be quite enough, which is why the book could not be reissued with a correction: instead, the offense strikes right to the heart of our expectations of a fiction writer, that he or she be original all the time.

I understand that expectation, though I worry in this case the dialogue — on which so many stand, on which so much stands — will ultimately deprive us of the opportunity to consider the shape and appearance of a fiction that works in the ground between the work of origination and the work of reportage. Is this what Vice meant when he described himself as a "regional post-modernist," a writer whose fundamental understanding of a text is that its capacity to do work is defined by those texts that precede it?

This possibility is intriguing intellectually, but I take a personal interest in it as well. Like Vice, I grew up in Alabama. I grew up far from Tuscaloosa, and I don't know what that's like, but I can tell you that outside of Gadsden, it always seemed like the world was old and worn out, that everything had been done before. It took me many years before I discovered that writing could provide me with a means by which to answer the signal lack of originality in the kudzu-spread of fast-food restaurants, indoor malls, and mountain twang that bounded my youth, and years further before writing would allow me not only to confront the lack of centrality in my own life and circumstance but as well to dig back into what seemed a dead past for a sense of a real world, to understand that I lived not in the ash of the world but just above or just beside a real place.

I've just read the version of Vice's work that's available in dissertation form, online, and not what's in the now-pulped Bear Bryant Funeral Train, but what I have read, and what I continue to see, does seem part of a pattern, but not a pattern to deceive. Rather, the pattern I see, the pattern I take an interest in, is a pattern of responsiveness that requires from the reader a rare level of sensitivity but at the same time does not wish to bar a reader on account of his or her lack of familiarity with the inspiring and informing texts.

Wordsworth did it — in The Prelude, of whose lines nearly 10% are adaptations of passages from Milton's Paradise Lost. Most people who read Wordsworth now may have very little appreciation for this, just as most people might never have heard Vice's adaptation of Carmer's work, but just as The Prelude still makes for interesting reading, so too, I suspect, does The Bear Bryant Funeral Train. Maybe after all these issues are settled in more official courts there will be occasion to read this again and see.

New attack on Brad Vice is merely poor journalism

Normally Thanksgiving brings out the good in people . . . probably because everyone’s groggy from the tryptophan in the turkey they ate. However, it appears that Robert Clark Young missed out on this year's turkey and happiness infusion, as evidenced by his new attack-dog article on Brad Vice’s supposed plagiarism (an issue I debunked weeks ago).

In the article, Young expands upon the nasty comments he originally made about Vice on storySouth (such as this inane example, located in the comments below Jake's original essay). However, I’m going to ignore the fact that Young's comments attack anyone from the South and compares any defense of Vice to support of slavery (which Young implies all Southerners still support). And never mind the fact that Young's article is published in a poorly regarded weekly newspaper.

No, the more important truth is that Young's article is poor journalism.

The reasons for this are simple. First, Young's article tries to make it sound as if he has discovered a new case of plagiarism. However, all that Young has done is show that Vice used The Junction Boys, a nonfiction book about Bear Bryant by author Jim Dent, as a reference source for his short story "Report from Junction." Like any writer, Vice had to research some obscure issues (in this case, screwworms and one of Bear Bryant's early football stars) and used Dent's book to make sure he was accurate. The similarities in what Young points out arise from the sentences describing a common process. Descriptive terms can not be considered plagiarism since there are only so many ways to write certain descriptions. For example, how many writers have written the sentence "He ran up the hill"? If I wrote this exact sentence in a story of mine it would not be plagiarism because it is a simple descriptive sentence.

More importantly, though, the examples that Young gives from Vice's dissertation to support this new charge of plagiarism are incorrect. For example, Young states that Vice's dissertation has this sentence in it:

"(T)he maggots will most likely screw themselves into its brain ... before they exit back through its eyes."

I will admit that this sounds similar to Dent's original sentence of "They sometimes would screw themselves into the brain and exit through the eyeballs." However, when I read page 180 of Vice's dissertation I discovered that Young's use of Vice's quotation isn't correct. Vice's original sentence actually reads:

"In fact, with worms that close to its head, the maggots would most likely screw themselves into the bull’s brain and drive him completely mad before they exited back through the eyes."

That sentence no longer sounds at all like Dent's. By using an excerpt from Vice's original sentence, and the creative use of an ellipsis, Young makes his case for plagiarism sound stronger than it actually is. The other screwworm sentences Young quotes from are also different than what Young says they are (the sentences all occur in one short section of a paragraph on page 180 of the dissertation). Since Young says he went back to Vice's dissertation to get an accurate accounting of what Vice did, it is strange that the examples he gives to support his plagiarism charge are so inaccurate.

Of these so-called plagiarized sentences, the only ones that actually resemble each other are the last examples Young gives. Young states that Dent's book has the sentence "He kicked the gelding and rode up on a ghastly sight" while Vice's short story in his dissertation has "Kurt kicked the gelding and charged up to a gruesome sight." The reason these sentences are similar is that the character in Vice's short story is based on Dennis Goehring, who is described as "One of the most hard-nosed, toughest players Bryant ever had." Vice's character was originally called Dennis Schaffer and is obviously based on Goehring. Since Vice's book aims to intergrate fiction with the actual events that occurred during Bear Bryant's life (which is a form of literary sampling) it makes sense that Vice would adapt an actual event from Dennis Goehring's life to a story based on this most famous of the Bear's early players. The similarities in these sentences result from the fact that they are describing the same event (a cow giving birth to a calf, which is then eaten by buzzards).

Once again, though, Young fails to quote accurately from the dissertation. Vice's original sentence reads, "Dennis kicked the gelding and charged up to a gruesome sight," while Young's quote gives the character's name as Kurt. Obviously the name of the main character changed from Dennis to Kurt by the time the story made its way to book publication. In fact, this brings up the question of if Young actually took his quotes from Vice’s dissertation or the book publication of The Bear Bryant Funeral Train. The article is unclear on this (again, poor journalism). Regardless, Young states that Vice’s dissertation makes the clearest case for plagiarism, which strongly implies that his excerpts are from the dissertation. As Young says in the article, “Plagiarism tends to be a first-draft offense; it is now possible to trace Vice's plagiarism from its genesis in his original documents.” But despite this claim by Young, he fails to quote accurately from the original document.

While Young's use of creative excerpts from Vice's dissertation is bad enough, a worse sin is that he fails to mention anything that might support Vice's assertion (and the belief of others) that what Vice did was not plagiarism. For example, Young fails to mention that on page 144 of Vice's dissertation is an epigraph from Carl Carmer's book Stars Fell on Alabama. When the dissertation was published as The Bear Bryant Funeral Train by the University of Georgia Press, this epigraph was left off for some reason. As many commentators have remarked, if Vice had included a citation or epigraph in his book, no one would have accused him of plagiarism. Yet here in Vice's dissertation is that called for epigraph. Young, however, ignores this evidence in support of Vice.

The final reason that Young's article is poor journalism is that he fails to note his personal relationship with the Sewanee Writers' Conference. Since the last third of Young's article is an attack on the Sewanee conference and anyone who is connected with the place (such as Barry Hannah), one would think that Young might mention he himself attended Sewanee at the same time as Brad Vice. The failure to disclose this information leads one to wonder if Young's article is part of a vendetta against Sewanee and Vice.

In short, Young's article is simply poor journalism. By altering the quotes from Vice's dissertation and ignoring evidence that would support Vice, Young makes the plagiarism case against Vice appear stronger than it is. Young also fails to disclose a serious conflict of interest in his attack on the Sewanee Writers' Conference. Because of these issues, I am reluctant to trust this article.

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.

SciFi Channel wades deeper into muck by dropping SciFiction journal

Today I learned that one of the best online journals for science fiction literature, SciFiction.com, is being shut down by the SciFi Channel. This is a shame because SciFiction is one of those rare places willing to give top-notch science fiction a home. It's also one of the few paying online markets for short fiction of any kind.

The ironic thing is that the SciFi Channel's notice about shutting down the journal at the end of this year credits Ellen Datlow for, "an unparalleled record of critical success, earning 10 major awards, including three Hugo Awards, four Nebula Awards and a World Fantasy Award." SciFiction also placed a story as runner-up in the most recent storySouth Million Writers Award.

Anyone familiar with the crap that the SciFi Channel broadcasts (with the exception of Battlestar Galatica) has to wonder if the channel deliberately undermines everything it does that is remotely decent. For example, the most critically acclaimed show the channel ever broadcast was Farscape, and that show was dropped like a hot potato. In its place the channel broadcast even more low-budget movies about monsters that eat people in dark and scary places.

I will miss SciFiction and wish its editor, Ellen Datlow, the best. I also hope that science fiction fans will raise a fuss about this as they do whenever their favorite TV shows are cancelled. After all, without a market for literate and intelligent science fiction stories today, how can there be any good science fiction TV shows tomorrow?

Story-line patent could hurt the ability of writers to create new stories

e-Media Wire is reporting that the U.S. Patent and Trademark Office has published history’s first “storyline patent” application. The utility patent application, filed by Andrew Knight in November, 2003, seeks to protect a fictional storyline from use by other writers.

According to the article, "Knight, a rocket engine inventor, registered patent agent, and graduate of MIT and Georgetown Law, will assert publication-based provisional patent rights against anyone whose activities may fall within the scope of his published claims, including all major motion picture manufacturers and distributors, book publishers and distributors, television studios and broadcasters, and movie theaters."

While Knight's patent application focuses on a specific storyline (dealing with zombies and a man who wakes up after sleeping for decades), this is an extremely serious issue fo writers. Until now, writers have been able to write about anything they want to because copyright and trademark laws specifically forbid protecting this type of generality. In short, specific works can be copyrighted but ideas can not be covered. However, patent law is more inclusive, as seen by the numerous "business method practices" patents of the last decade, which cover business processes such as online shopping. If the patent office allows this application, you can bet that other storylines will be protected until eventually writers may face the loss of any area of life about which they write. Since there are supposedly only seven basic story plots, the loss of even a few generalized plots would seriously hamper writers.

I strongly suggest that people protest this patent application by contacting the U.S. Patent Office. You can also download the paperwork to protest this application. Unfortunately, it appears that it may be late in the game to start protesting this, but I'd bet that if writers raise a stink and cry about this Knight's patent application will have a tougher time of making it through.

It should be noted that Andrew Knight is taking this extremely seriously, as seen by his firm Knight and Associates , which calls itself "the first patent prosecution firm to attempt to obtain utility patent protection on fictional plots." Evidently Knight and Associates is "ready to turn valuable new fictional plots or storylines into U.S. utility patent applications." They are doing this for Knight's zombie plot despite what Manxom Vroom has suggested (namely that the plot, which features a man sleeping for 30 years, was written long ago and is called "Rip Van Winkle").

What really irritates me about this patent application is that it implies there is something difficult about coming up with an idea or general plot for a story. Writers meet people all the time who believe this. They're the ones who, upon learning that you are a writer, say, "I have a great idea for a novel. If you write it, I'll split the money with you." These people believe that coming up with the idea for a story is the hardest part about being a writer.

The truth is that writing a story is hard. Ideas and plots are a dime a dozen.

This must be stopped.

Follow-up: Here is an interesting analysis of the defects in this patent application, along with other thoughts on patenting plots and storylines, from a patent attorney named C.E. Petit.

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.

Fell In Alabama: Brad Vice's Tuscaloosa Night

As my colleague Jason Sanford has narrated, the University of Georgia Press recently recalled Brad Vice's recently-published Flannery O'Connor Award-winning volume The Bear Bryant Funeral Train with the intention of pulping it. The Press stripped him of his award and declared "no future editions are planned."

What started all this?

As the Tuscaloosa News reported, a readers' adviser at the Tuscaloosa Public Library, reading Vice's story "Tuscaloosa Knights," "heard echoes from one of her favorite books," namely Carl Carmer's 1934 book Stars Fell On Alabama.

The reader, who (according to the Tuscaloosa News article) believed she was the first to hear an echo of Carmer in Vice's story, began comparing the two texts and then prepared a small dossier marking the similarities between Vice's story and a chapter in Carmer's book. She sent this dossier to the University of Georgia Press and as well to the University of Alabama Press, which has published the most recent edition of Stars Fell on Alabama.

Daniel J.J. Ross, of the University of Alabama Press, wrote: "This seems a flagrant case, intentional and indefensible, with the feeble efforts to alter the original all the more blatant evidence of unacknowledged borrowing" (from the Tuscaloosa News).

And you already know what UGA Press has decided.

I have been — as a reader, as a writer, as an editor, and as a publisher — troubled by the immediacy of the assumption that Vice committed plagiarism, rather than some artistic quotation or allusion or some other form of appropriative artisanship, and by the willingness of many of the principals in the exchange to damn Vice for what they see as fraud and theft.

When I first read Vice's story — he sent it to me and to Jim Murphy so we could reprint it at Thicket, the site we've dedicated to Alabama writing — I heard the echoes of Carmer right away, and I thought Vice had done a smart thing. He had written his story right on top of Carmer's, set his own characters in the very Tuscaloosa Carmer described among the very Klan that disgusted Carmer. It seemed to me a clear case of allusion.

And necessary allusion. For the echoes allow Vice to perform two difficult but important things.

The first is to suggest that Alabama, culturally, isn't all that different from the Alabama Carmer described. The more exactly Vice quotes Carmer's situation and the more exactly Vice evokes Carmer's Tuscaloosa, the more powerful is the comparison. That comparison both forces us to consider our cultural critically, which is continuously necessary, and very quickly establishes the environment for the real drama of the story, which invites us to consider how this environment conditions our love — what and whom we love, when and where and how we can love. We need to feel that the terror incited by the Klan, the same Klan, is the same terror Carmer felt, so that the climactic scene of Vice's story is one of terror.

The second is to connect not only the world within the story to the world within Carmer's memoir but as well to connect Vice's own writing, his act, with Carmer's. And this connection seems to me the more valuable and essential. In connecting himself to Carmer, Vice enters and expands the too-small sphere of Alabama's literary inheritance (where is our Faulkner, our Welty, our Williams?) and invites us to consider that inheritance not as something that is past and locked away but as something that is living and extensible. If we see Vice's Pinion as a version of Carmer's own guide, then we will understand Vice as an extension of Carmer and this Alabama as not so divorced from that one. Vice's story argues for the essentiality of Carmer's work by making Carmer's work essential to his own, and in doing so makes Alabama a larger place.

One may protest that by failing to announce this connection more explicitly Vice has unwittingly admitted intent to deceive, but I believe that such a protest misunderstands Vice's text, fails to consider the necessary conditions for the kind of allusion I seek to describe here and, at the same time, undervalues Carmer's work by requiring it to behave in a very specific way.

To make the case for intentional, deceptive plagiarism, one must say that Vice's intention is to hide from us the inspiring and well-quoted source, must say that Vice assumes we will not (could not) make the connection between his work and Carmer's. It assumes that Vice's quotation is meant not to evoke Carmer's text but to pillage and thereby erase it. But it seems difficult, at least for this reader, to imagine that one could read — and I mean really read — Vice's story or Vice's collection without considering it as an act of Alabama literature, which would necessitate at some point a consideration of Carmer's Stars Fell On Alabama, one of the few outstanding works of classic Alabama literature. And it's hard to imagine that, with Carmer's work in mind, we could read Vice's work without hearing the quotations and without understanding them as such and without understanding the quotations not as a simple homage to a segment of another work of Alabama literature but as well as an appropriately rich response to a work that is itself so heavily invested in quotation, taking its name from a popular jazz tune and frequently quoting real people in the course of its narrative.

This is to say that the quotations are themselves acknowledgments of borrowing and that the act of quotation is in some measure suggested by the source text here.

Vice has, in interviews, explicitly acknowledged his debt to Carmer. And in allowing us to reprint "Tuscaloosa Knights" at Thicket alongside a selection from Carmer's own "Flaming Cross," Vice implicitly acknowledges the relationship, allows the evidence to be made public, and is interested in his readers entering the intertextual space in which he has worked.

This is not an author with anything to hide.

To have been more explicit within the story itself, Vice would have had to have included an epigraph from Carmer's work or perhaps named Carmer, but such a gesture diminishes the allusion, which works when the reader makes the connection the author has already made. The joy of allusion lies in the reader's arrival at that place already inhabited by the author, a place in which reader and writer come to be in profound sympathy with one another. To force this arrival, as an author, is to mistrust the reader. To provide the evidence but leave the connection to be completed is not only to trust the reader but to depend on her.

Which makes the Tuscaloosa readers' adviser's reaction all the more disappointing. Except for her assumption that this borrowing was deceptive, she was the ideal reader, able to hear the echoes and identify them.

Some, who don't feel that this is intentional and deceptive plagiarism, argue that this is a case of "unacknowledged borrowing" and that this is a violation of copyright law, a charge Vice has countered by asserting that he thought his use of this material was within the bounds of "fair use."

Perusing the resources on fair use, it's easy to see how Vice could have come to such a conclusion. The Stanford University Libraries digest of copyright law states that "In its most general sense, a fair use is any copying of copyrighted material done for a limited and 'transformative' purpose such as to comment upon, criticize or parody a copyrighted work." If Vice views his work as a comment on Carmer's or even as a transformation of it, though Vice does not mean to parody the work exactly, it would seem that he has worked within the spirit of the law, at least as it is presented here.

Of course, the issue of fair use is more complicated. According to the Stanford University Libraries digest (and to other widely available sources, including the Tuscaloosa News), judges of copyright suits use four factors to determine whether or not a use if fair use:

  1. the purpose and character of use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken
  4. the effect of the use upon the potential market

I've already discussed the "purpose and character" of Vice's use of Carmer's work (which will still, of course, be up for debate). But these other factors, which have been only partially addressed, also have a serious bearing on any determination of copyright violation.

What of the nature of the copyrighted work?

Interestingly, copyright law digests (such as the one provided by Stanford I am using as a reference throughout this post) state that if the source work in question is a factual work the borrowing may be more excusable, since the spread of information is essential to ongoing dialogue. Purely fictional works (because they are not factual or do contain facts?) are more heavily protected.

So, we have to ask whether Carmer's work is a fictional work or a factual work and whether the determination of the nature of the source work makes a different here. Though written with a literary flair, Stars Fell on Alabama is essentially a memoir, if we can take seriously the "Author's Note" that opens the book. There Carmer declares that:

All of the events related in this book happened substantially as I have recorded them. It has been necessary in a few instances to disguise characters to avoid causing them serious embarassment (for instance my hosts during the lynching). I have also taken the liberty of telescoping time occasionally—since I have attempted to select significant occurrences which took place over a span of a half-dozen years.

While Carmer's note only confuses the question of its kind for me, these statements do encourage our understanding of Stars Fell on Alabama as truthful and as factual, more or less. And that determination supports Vice's claim that Carmer's work was a historical source he used to create the Tuscaloosa for his story.

But it's the third question about the "amount and substantiality of the portion taken" that has received the most attention.

In explaining its decision to recall the book and strip Vice of his award, the University of Georgia Press stated that Vice's work "borrowed heavily" from Carmer's book.

Certainly, Vice borrowed from the work. But did he borrow "heavily"? It depends on what you consider to be borrowed. If we're talking about exact quotations of lines and phrases, it's obvious, but the amount of material that's adapted isn't a significant portion of either work. If we're talking situations and ideas, it's a much larger proportion of each. Is it substantial? As a proportion of Carmer's work, the material in question (most broadly construed), though well-known, is miniscule: we're talking about four pages of material in a 300-page work. As a proportion of Vice's work, we're talking (again broadly construing "material") about maybe five of fourteen pages (depending on which edition you're considering).

Maybe this is enough for most people. But the copyright law digests state that those borrowing for purposes of parody — and I would consider that the kind of allusive updating I've considered the story to be is akin to parody in that it builds itself on the other work, even if the purpose isn't a humorous one — may borrow much more than is normally acceptable, "even the heart of the original work, in order to conjure up the original work."

Quoting from Justice Souter's remarks in Campbell v. Acuff Rose Music, Inc may be interesting here:

the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work.

Finally, what was the "effect of the use upon the potential market"?

Carmer's work was a best-seller in 1935. But judging from the difficulty of finding the title on the University of Alabama Press's website, it's not a top-priority title. My guess is that the two- to three-dozen sentences from Carmer's work that appear, often altered, in Vice's work, does not constitute the kind of reproduction that will substantially diminish demand for Carmer's work. This isn't the kind of sidewalk-table DVD that sells for a fifth of the cost of the real deal.

If anything, I would think that Vice's quotation would potentially increase interest in Carmer's book (which is a great book everyone should own). Maybe the University of Alabama lost their licensing fee which, from my guess based on my own permission-seeking, would be well less than the $950 someone is asking on Amazon today for a single copy of Vice's book.

If none of this actually clarifies what it was Vice did or intended to do or what the University of Georgia Press or the University of Alabama Press thought it was that Vice did, it does suggest how complicated the issue is. I feel certain I've gotten something wrong in the law, but I've done the best an intelligent, well-educated person could do without a lawyer, which I hope suggests something of how Vice himself might have worked though the issue.

I would think that the University of Georgia Press would have been aware of the quotations — one presumes they're careful and also well-educated and well-read and would, as the sponsors of the premiere award for Southern literary fiction, be cognizant of Southern literary history to a degree that would render Carmer's text familiar and readily accessible — and would have had the legal resources to make the proper reckoning.

In my own experiences as an author over the last few years, I have found, however, that even the most prestigious presses, like Routledge (which published my work The Architecture of Address) like to put the burden of the legal work on their authors or their production staff, people who can do no better than to read the laws they can find.

Vice might have been left with this burden. I don't know. He might have, as I did, gone looking for a copyright registration for Carmer's text in the United States copyright database and might have, as I did, found nothing.

I don't have all the facts, but I do know that there may be a defense of Vice's quotation, contra the official response from the University of Alabama Press.

Perhaps Vice has not borrowed in accordance with fair use. But if he thought others would know, would hear, would understand, I don't understand how anyone can accuse him of intentional and deceptive plagiarism unless we treat texts solely as properties and do not consider their cultural place or value.

The University of Georgia Press has had its troubles this year, accused of corruption in its poetry contests (a dialogue instigated by the folks at Foetry and that resulted, at least in part, in Bin Ramke's resignation as series editor), and some bloggers are already making the connection. And maybe this has had some bearing on their reaction to the recent accusations.

As of this writing, I haven't received the copy of The Bear Bryant Funeral Train I ordered, and I suspect I won't see it any time soon, but I do hope to read it at some point soon, even if I have to read it in manuscript. I continue to think that Vice's writing is not only good but smart and brave as well.

I'm especially sorry to see an Alabama author treated so harshly before a thorough analysis of the facts has been made, and I can only hope, as an Alabama author with a first literary work freshly out, that this is not a sign of how hospitable things are in our beautiful, tangled state.

The literary lynching of Brad Vice

For anyone who loves stories, one of true joys in life is the discovery of a great new writer whose stories grab you deep in the gut and refuse to let go. While there are tons of books published each year by beginning writers, only a few of these books scream that THIS is a writer who is destined for great things. As a result, when you discover a great writer at the beginning of their career, you have found one of the rarest joys in life.

Unfortunately, though, over the last week this joy has been shoved back down my throat. The reason: Brad Vice, one of the most talented new writers to appear in the last few years, has been given the shaft by his publisher for what appears to be an honest mistake.

First, the background.

Brad Vice’s first collection of short stories, The Bear Bryant Funeral Train, won the Flannery O'Connor Award for short fiction from the University of Georgia Press a year ago and was recently published. The book is an excellent debut collection of fiction which appealed to me not only for Vice’s powerful writing but also for his unique look at the south. As someone who was born and raised in Alabama, I especially loved how Vice tied the central cultural figure from my youth—football coach Paul “Bear” Bryant—into the core of his stories.

I vividly remember the day the Bear died. Just as some people remember where they were when John F. Kennedy died, so do most Alabamians remember where they were when the University of Alabama’s legendary coach passed away. By tying his book into the mythology of Bear Bryant, Vice created stories that transcend the limited scope of so much of what passes for short fiction in today’s world. I know many other readers agreed with me because Vice’s book picked up positive reviews from around the country.

But just as every great story has a downfall, so too does the story of The Bear Bryant Funeral Train. Brad wrote one of the stories in the collection, “Tuscaloosa Knights,” in homage to Carl Carmer’s classic book, Stars Fell on Alabama. (Vice’s short story is reprinted on storySouth’s sister publication Thicket.) Specifically, Vice based his short story on a chapter in the book called “Tuscaloosa Nights" (and in particular a four-page section of that chapter called "The Flaming Cross," which describes a 1930s Ku Klux Klan rally in Tuscaloosa, Alabama). Vice’s story runs about twenty pages and closely follows some of Carmer’s dialogue and description (while using different characters and situations). Vice is quoted as saying that he used some of Carmer’s dialog because, “As a nonfiction resource, the dialogue had a truth value outside of Carmer’s text."

Unfortunately for Vice, he forgot to acknowledge that the story borrowed material from Carmer’s classic book. Soon a readers' adviser to the Tuscaloosa Public Library discovered this and raised concerns about the story. Vice’s publisher, fearing what might be unleashed, voided out his fiction prize and plans to destroy all of the books. In addition, Vice is now facing the possible loss of his teaching job at Mississippi State University.

In a day or two, my co-editor Jake Adam York will examine whether this copyright concern is truly valid. To me, though, the fact that Vice titled his story as an obvious play on Carmer’s original chapter title, and the fact that he acknowledged in interviews that the story was in homage to Carmer’s, shows that this was not an attempt to plagiarize the original story. Instead, Carmer was taking the time-honored route of updating and commenting upon a classic literary story. This is the same path recently taken by Pulitzer Prize winning author Suzan-Lori Parks when she wrote Getting Mother's Body, which is an updated version of William Faulkner’s As I Lay Dying.

Carl Carmer’s book is an American, and Southern, literary classic, and the section that Vice based his story on is the most famous part in the book. What Vice did is similar to someone writing a story based on William Shakespeare’s “To be or not to be” soliloquy—i.e., the source material of the story should be well-known to his audience (such as readers of southern literature). If I wrote a short story based on Shakespeare’s Hamlet (as author Tom Stoppard did with his famous book Rosencrantz & Guildenstern Are Dead), no one would question the validity of my story.

The problem, of course, is that even though Carmer’s book came out more than six decades ago, it is still under copyright (yet again, my co-editor will examine whether Vice actually violated the original book’s copyright). However, copyright generally does not prevent an author from commenting upon and basing another story upon that work. In fact, Alice Randall did just this with her novel The Wind Done Gone, which was based on the classic, and copyrighted, text of Gone with the Wind (Go here to read Houghton Mifflin’s defense of their publication of The Wind Done Gone). Yes, Vice should have included a small acknowledgement in the front of the book about how the story was based on Carmer’s work, but he is a young author and thought 1) He was covered by fair use; and 2) That the source material would be evident to anyone familiar with southern literature.

This brings me to what really infuriates me about this case: How Brad Vice was let down by the University of Georgia Press. Vice is a young writer who forgot to acknowledge his story’s inspiration source. However, the University of Georgia Press has no excuse. (For a short version of the Press’s response, go here.) The Press could have found other ways to fix this situation instead of simply revoking Vice's prize and destroying his book and reputation.

I know this because I used to be a senior editor at Meadowbrook Press, a commercial publishing company distributed by Simon & Schuster. Once, while working on an anthology of quotations, I discovered that a previous editor had forgotten to request permission for several sections of another of our company’s anthologies. To make amends, I contacted the author whose copyright we had violated, explained the situation, and offered payment to use the material. We then placed an errata insert page into all remaining copies of this anthology and added the copyright mention into future editions of the anthology.

I'm sure that the University of Georgia Press could have done a similar thing, resulting in all parties going away happy. In addition, if the issue is so serious to the University of Georgia Press, why didn’t their editors notice it prior to publication? I would think that the editors of Brad Vice’s book should have been familiar enough with southern literature to know that his story was playing off of Carl Carmer’s famous book.

To repeat, Brad Vice should have placed an acknowledgement in his book. Yes, he made a mistake. However, fault also rests with the University of Georgia Press, who should have searched for other ways to fix this problem instead of reaching for the nuclear destruction of an author and his book.

As I said before, there is a long tradition in fiction of authors borrowing or adapting older literary works to make new points and raise new issues (with Getting Mother's Body, Rosencrantz & Guildenstern Are Dead and The Wind Done Gone being only a few of the recent examples of this). Brad Vice thought he was following in the path of these novels with this short story. He should not be strung up for believing this and forgetting to add that one acknowledgement.

Because of the actions of the University of Georgia Press, The Bear Bryant Funeral Train is no longer available in most bookstores. However, if you can find a copy, I strongly suggest you purchase it in support of Vice. I also urge people to write e-mails or letters of support to Mississippi State University, which has opened an investigation of Vice that could result in him losing his job. Since this is an academic process, formal snail-mail letters of support are encouraged. Address and send letters to: Richard Raymond, Professor and Department Head, English Department, 316 Lee Hall, Mississippi State, MS 39762. You can also e-mail him at rraymond@english.msstate.edu.