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:
- the purpose and character of use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken
- 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.