As regular storySouth readers may remember, last year the editors of this journal strongly defended Brad Vice against charges of plagiarism. While our defense had a bitter-sweet ring to it since the University of Georgia Press had already pulped all copies of Vice's book, we saw this as an opportunity to bring attention to the great wrong being done to a great writer. Yes, Vice had made mistakes. But despite the screams from partisans bent on destroying his reputation, his mistakes never reached the level of a deadly literary sin.

Several new developments suggest that our view of Vice as a talented writer who made a minor mistake is gaining traction. First, River City Publishing plans to issue a new edition of the book in the spring of 2007. As reported in the Oxford American, "The revised version will more closely mirror Vice’s 2001 dissertation from the University of Cincinnati, which contained many of the stories that ended up being published as The Bear Bryant Funeral Train. Unlike the UGA Press edition, it will be divided into two sections, the latter of which is set entirely in Tuscaloosa. In his dissertation, Vice described the Tuscaloosa stories as an 'attempt to reconcile the seemingly incompatible movements of Southern regionalism and international postmodernism.' In that vein, it contained epigraphs by Albert Camus, Basho, Guy Davenport, Bear Bryant, and, more importantly, Carmer, all of which will reappear in the River City edition." This edition will also include an introduction by Vice and critical essays by John Dufresne, Erin McGraw, Don Noble, and Jake Adam York (my fellow storySouth editor).

This info is contained in the new issue of the Oxford American. Two articles on Vice from the issue are also available online: "The Strange Case of Brad Vice: In defense of a destroyed treasure" by Michelle Richmond and "Absurdity and Madness: The Making of the Bear Bryant Funeral Train" by Brad Vice himself. These essays add much to the overall understanding of both what Vice did and the literary world's overreaction.

Personally, I'm glad that Brad Vice is getting a second chance. I look forward to the spring rerelease of his book.

December 18, 2006
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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.

November 16, 2005
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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.

November 5, 2005
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