Expert Witness Services
The David Mellinkoff Lecture: 8 February 2007
“Moonlight Job: A Literary Expert Witness in the New Age of Copyright”
I’m honored to speak here in the UCLA Law School after a career spent across campus in the English Department, and I’m especially moved to give a lecture named in memory of my dear friend David Mellinkoff. David had two rules for someone giving a presentation like this one. First, “No one-hour lecture should last more than 50 minutes.” Second, “Don’t tell them more about snakes than they really want to know.” David, I’ll do my best.
For an English professor to give a lecture in a law school is a daunting business, at least for this professor. I’ve heard several intense theoretical arguments in this building, not least William Fisher’s recent Nimmer Lecture, and I started drafting a lecture of this sort, as what the occasion called for. It dealt with the economics of attention, a good choice if, as I have, you’ve recently written a book on this subject. I had just gotten to an argument about what students of artificial life call a “lambda parameter,” a strikingly original concept to apply to copyright and one which I thought well-calculated to impress a law school audience, when a voice came down out of Heaven and said, in a tone quiet and yet firm (those of you who knew David will remember how he spoke), “You are telling them more about snakes then they really want to know.”
So I junked that lecture and decided instead to give you an informal account of my moonlight job as an expert witness in copyright cases. It’s the only real connection I’ve had with the law and I hope you won’t be too disappointed in its lack of theoretical penumbra.
The story began in the summer of 1971. I was sitting in my office in Rolfe Hall when the phone rang. An attorney had been asked to take on a copyright case but she had just begun practice and didn’t know what to make of it. A woman in North Carolina claimed that her unpublished and unregistered screenplay had been plagiarized by the film “Guess Who’s Coming to Dinner.” You may remember the film, the last Katherine Hepburn/Spencer Tracy vehicle, also starring Sidney Poitier as the accomplished and handsome suitor for the hand of Hepburn and Tracy’s daughter. A movie about a contemplated mixed marriage was unusual fare then, and the potential plaintiff could not believe that anyone else could have thought up such a subject. Would I read the screenplay and see the movie with the attorney and tell her what I thought about the relationship between the two properties? I would and did. What did I think? I thought the proposed plagiarism was preposterous. The only thing the two properties had in common was that they were about a mixed marriage. There was no case here, I advised.
This was the first time that I observed the classic response of an offended author. “I’ve been robbed!” This response is made immediately, on the basis of evidence often flimsy or non-existent, but no one, nor any evidence, will ever change it. If no evidence can be found that the alleged thief had access to the plaintiff’s work, nevertheless such access had to have occurred, since they have been robbed. I’ve seen this pattern repeatedly but I’ve never really understood it.
My verdict of “no case” was, of course, my first mistake, as the lawyers in the audience will already have noticed. To say that there was no literary relationship between these two properties was by no means the same thing as to say that a jury could not be convinced that there was a relationship. To say that there was no basis for a case was not to say that a profitable case could not be made. I was to learn the importance of this distinction on several occasions in the future.
But at this point, I did not know such a future existed. A genial Providence brought one about, not long after, by seating me next to Prof. Melville Nimmer of the U.C.L.A. law faculty at a dinner party. I did not then know that “Nimmer on Copyright” was tantamount to “Sterling on Silver,” but when he told me that he worked on copyright I chatted guilelessly about the “Guess Who’s Coming to Dinner” episode. “Would I be interested in doing more of this work?” he asked. Well, why not? It was clean, inside work with no heavy lifting, and I could certainly use the extra money.
Prof. Nimmer passed the word, it seemed, and lawyers started calling me up. So began a career as a literary expert witness in copyright cases. I’ve worked on over 60 cases since then and it has proven to be the perfect moonlight job. A moonlight job, for English teachers, usually means teaching in Extension or in the summer—more of the same job for, usually, less money. This job was altogether more agreeable. I was doing what I had been trained to do, but in a different environment and for a different purpose. I’ve worked on cases involving big properties—King Kong, Earthquake, Star Wars, Shampoo, Gone With the Wind, Superman—and TV shows like Falcon Crest, a prime-time soap which soldiered through several seasons, went into syndication, and earned—I was told—appreciable profits. (It was also a property, I feel safe in saying, that at one time I knew more about than anyone else on earth. For an academic to be able to make such a statement about something, even Falcon Crest, is character-building.)
Lawyers take their knocks in the popular imagination, so perhaps I ought to begin by saying that I’ve found those I’ve worked for to be interesting people, interested in their work, and intelligent, often very much so. I have enjoyed their company and they’ve taught me a lot, and not only about the talent and energy required to argue a case at law. The atmosphere in which university work in the humanities takes place is one of unremitting high-mindedness. Everything is done in the name of selfless service to scholarship and humankind. The atmosphere of a prosperous law firm provided a refreshing change. There, people worked to win but, curiously enough, the atmosphere of perpetual confrontation seemed, sometimes at least, to create a generosity of spirit, and of humor, seldom found in a departmental meeting. And, of course, the pay was much better.
The moonlight job also provided another benefit which perhaps I should mention before I describe a few of the cases I’ve worked on. One of the less attractive attributes of an Ivy League literary education such as I brought to these cases was the habit of looking down on popular culture from a suitable elevation. I would never have seen most of the movies I worked on, or watched the TV shows, or read the novels, if I had not been paid to do so. But I was paid, and I did become intimately acquainted with a deep slice of popular literary culture. I learned a lot about how hard it is to take a script and make it into a movie or a TV show; I learned how skillful were the people who did so, the actors who acted and the directors who directed them, and the producers who produced the “resources,” as we academics euphemistically call “money,” needed to make the machine run. I also came to realize what good entertainment value these people usually created. Getting rid of some, at least, of your cultural snobbery and condescension is a benefit not to be sneezed at.
I was having lunch at the Faculty Club not long ago with a group of friends and I happened to mention to one of them—a member of your law faculty—that I did expert witness work in copyright cases. This news perplexed him. “Why,” he asked, “would a lawyer hire you?” I chose to take this question in the kindlier of the two senses in which it might be understood, that is to say, “Why would a copyright lawyer hire somebody like you from an English Department?” Here is the answer I would have given had not the current of conversation just then carried us to a different shore.
I was trained in the Yale English Department in a school of literary study called the “New Criticism.” It stressed close analysis of literary texts rather than a consideration of their historical context. What it taught you was how to analyze, as we used to intone in graduate school, “style and structure.” How to juxtapose different texts and see what their relationships were and how they might have gotten that way. There was nothing really new about this method of analysis. It has stood at the center of Western literary education—and Western education for most of its history has been literary—from the earliest days of classical Greek rhetoric. But by the time we had learned enough to see how traditional this “new” education was, we’d left graduate school and so the secret remained safe for a long time.
It was, as things turned out, the perfect training for considering cases of possible literary theft. You would think that lawyers would be good at such comparisons themselves, so densely verbal is the world in which they live, but—in my experience at least—they turned out not to be. They could hire me. I was better at it and quicker, and better yet, cheaper. Furthermore, I had an advanced degree in that kind of stuff and, with luck, that might impress somebody. One thing you learn early on, when getting an advanced degree in “that kind of stuff” (or at least used to), is to be very careful about which texts you are using for what, careful to compare like with like, as far as circumstances permit. Lawyers, I was surprised to learn, tended to be careless about which texts they were using to prove what, and especially about what relation a film script bore to the final edited film that had occasioned a lawsuit. Expensive lawsuits went forward, for example, without anyone’s having compiled a cutting continuity from the film, so that there was no textual record of what actually was said and done in the film. And almost never in my experience was a method devised to compare, side by side, the section of the film with the section of plaintiff’s text which it was charged with stealing. Now, of course, with digital search capabilities, it is much easier to do this.
So, hiring me, or someone like me, to compare literary texts in copyright cases made some sense. What did I do in such cases? How did I go about the work?
I had first to negotiate a difficult barrier. I was an honest expert. I had to agree with the argument of the people who hired me. This meant that I had to examine, at least in a preliminary way, the documents and films at issue. After doing so I either went ahead or not. (If you are planning to go in for this kind of work, remember that you must always be paid up front for this initial examination, because if you come up with the wrong opinion, people don’t want to pay you for it.) There were cases when I could not proceed. Potential employers were sometimes vexed by this procedure but I have never seen a way around it. Let me now get down to cases and describe some of the work I did.
Example: The screenplay for a popular film, Earthquake, went through eleven versions. There had been an earlier screenplay on the same subject by a famous writer, but the producers found it unsuitable so the famous writer was paid off (I remember that he got $250,000, fair pay for what was surely the work of a whole weekend) and a new writer was engaged. Then the collective invention common in movie scripts took over and the script, like a wounded snake, crept its slow length along to draft eleven. BUT, there had been an agreement with the original writer that a particular producer would be engaged if ¼ of the writer’s work was kept in the final film. Was it? And if not, at what draft did it cease to be so? Would I factor out the usual elements a copyright case considers—plot, character, tone, dialogue, etc.—and attach a numerical figure to each for each draft? Not an inconsequential task, quantifying originality, but it did make me think, and I did my best.
The case illustrates a larger issue, one that arose often when moonlight and daylight jobs exchanged glances. The copyright concept that emerged from the Statute of Anne in 1710 was based on a simple idea of single-author creation. I create something and I should have a monopoly on its uses for a stated period, else I would not be motivated to create it in the first place. But what about the multi-author movie script, the product of an original author (sometimes, as here, paid off in a snit), several revisions by several hands, and final polishings which led, in turn, to the editing of the resulting film? There was a precedent for this kind of literary creation but it was not the poet in a garret hammering out his yearnings for cosmic nature, or for Annabell Smith, who lived next door. The precedent was the poems of Homer, indeed the whole apparatus of poetic creation in an oral culture. In this earlier world, perpetual revision was part of oral transmission and of the scribal notation which came after. I’d bet this collective and ongoing cultural conversation was true of ancient Egyptian literature, if enough of it had survived to tell, and of the Sumerian world from which Gilgamesh emerged. It certainly was true of the Homeric poems and of the epic tradition. And, to some degree, of biblical textual transmission as well. Authorship simply meant something different from what today we think the word to mean. The whole copyright concept sits awkwardly on this earlier world, or would have had copyright existed then. And, now that our culture is becoming profoundly oral again in both creativity and digital means of cultural notation, its awkward posture has returned to us in full force. (A little more about this later.)
Another case: A popular television psychologist writes a book called Nice Girls Do. What nice girls do, a reader learns, is have multiple orgasms, and the book opens a path to such an orgasmic Eden. But there was a snake in this grass, as you might expect. The author’s former lover charged that the insights opened out for nice girls had in fact been stolen from him, more especially from pillow talk when the two shared the same bed. How do we know what these pillow-talk insights might have been? Well, the plaintiff wrote a book called The GroupSex Tapes. This was not a moral exhortation to greater pleasures like Nice Girls Do; instead, a straightforward narrative account of group sex practices. It was simply a matter of comparing these two works to see what an outrageous theft had occurred.
This was refreshing, indeed eye-opening, work for someone who seemed to spend his whole life grading student papers. The theft alleged was fanciful—preposterous in fact, unless you can copyright human sexuality—but that, it turned out, was not really why I was engaged. The psychologist felt that her whole scholarly career had built up to her book and that reviewing her career could prove it. I was to review that career. I did so; it consisted of early work on autism in children and it was a pretty thin profile. I approached it with the scholarly condescension which it so obviously deserved but, what do you know?, it turned out to pose an interesting and thoughtful argument. She was a smart lady. My communication of this discovery to the client may have amortized her whole investment in me. But, of course, this discovery was as irrelevant to the case as The GroupSex Tapes. This was a lover’s quarrel writ large on a copyright screen.
One of the things I soon learned in working on these cases was how a lawsuit can take charge of a person’s life and become the focus for the slights of a lifetime suffered at the hands of an outrageous fortune. So with the defendant psychologist; she had entered into this case and was really enjoying it. She had, by this time, acquired another lover and he was helping her mount her campaign. (I know this is beginning to sound like a soap opera, but many of the cases I worked on had as much soap in them as law.) The new lover was rich and lived in a big house in a fashionable Westside location, and there I went to a strategy session in what now we might describe as a “situation room.” The main parties on our side were present as well as several—I seem to remember three—fetching UCLA coeds who were there to fetch and carry documents. There was an easel and strategy charts were mapped on it. The air conditioning was on extra-cold and we were all required, in order to spare the white carpet, to remove our shoes. My feet were freezing and I had a hole in one sock but so, I was pleased to observe, did the lawyer in attendance. Both of us managed to keep a straight face, even for the coeds, who were all barefoot as well as pretty, and must have been freezing their tootsies.
Please understand that, by then, this drama had left copyright law far behind. It was about creating a public drama to satisfy private needs. Copyright law was only a means, possibly a profitable means for the plaintiff, to create the drama. When this drama had played out for both sides, the case was settled and there was no need for a trial.
So what about the legal thinking behind the drama? It was Justice Story who said that copyright law approaches “what might be called the metaphysics of the law, where distinctions are, or at least may be, very subtle and refined, and sometimes almost evanescent.” It is so. These evanescent distinctions are built on two concepts that figure in every discussion about copyright. The first is the line drawn between Idea and Expression. The Idea is the common possession of the culture, for literature, the genre or type. It is what comes with the territory. Thus a story about a professor might well include a lecture hall like this one, an audience of this sort, a speaker who thinks that every one-hour lecture should last at least an hour and twenty minutes, etc. This “Idea” cannot be copyrighted. But if the professor was asked to speak about his moonlight job as an expert witness, and all that went with it, this would be “Expression” and could be copyrighted.
We might expect great legal minds to elucidate such a central governing abstraction, and they have done so. Justice Holmes describes “expression” as “a personal reaction. . .upon nature.” “Personality,” he tells us in a famous case, Bleistein v. Donaldson Lithographing Co., “always contains something unique. . . That something he may copyright.” About the complementary abstraction, the “Idea,” Learned Hand says this: ““Upon any work, and especially upon a play, a great number of patterns, of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.” (From another famous case, Nichols v. Universal Pictures.)
A literary expert’s role in applying this abstract pairing would seem clear enough. As a literary historian, he is, or for a special case can become, expert in the genres at issue. In a case about magic, he learns about the history and techniques of magic; in a case about 3-generation wine-making Italian families in the Napa Valley, he learns what comes with that territory; in a case about Barbie dolls he learns the history of that living doll. Neither judge nor jury can reasonably be expected to do this within the usual constraints of time, place, and training which govern an action at law.
Likewise with “Expression.” Literary critics spend a lot of their time trying to describe a particular poet’s “personal reaction. . .upon nature” and ought to be able to do the same thing in a copyright case, especially if allowed to read enough of that poet’s work, and testify to it, to make the personal reaction clear to judge and jury.
Alas, things are not so simple. First, of course, the literary expert, although he may be offering an impartial opinion, will never be thought to do so. He is part of an advocacy team; that is why he has been hired. The most important offering he can make to the understanding of a case is radically compromised at the start. Second, there are rules about what an expert can testify to in such cases. A famous case, Arnstein v. Porter, rules that the final judgment in copyright cases must rest with the “ordinary lay observer.” This observer, judge or jury, will almost certainly not know about the genres at issue, the Ideas, nor about the personal imprint upon nature which constitutes the Expression. Minds, of either judge or jury, are—in my experience—made up on different grounds. The opinion in Arnstein v. Porter goes on to state that “although using expert analysis and dissection is proper in evaluating similarities to establish copying, such analysis is not appropriate for determining misappropriation.” At this point, the rules about expert testimony become too evanescent for me. Fortunately, in my moonlight career, they were never applied to what I wrote or said. Theory did not seem to apply to practice, at least not in my particular moonlight.
The second vital distinction is embodied in the phrase “substantial similarity.” What does it mean in the law? Here I must refer you to an article by a law professor, Amy Cohen, which I found of some comfort in trying to answer this question. Her article is called “Masking Copyright Decisionmaking: The Meaninglessness of Substantial Similarity.” (U. C. Davis Law Review, Vol. 20, 1987) It has never meant much to me either, though I tried at various times to compile a list of the possible meanings I came across in my reading. It might mean, I found:
- Full reproduction without permission.
- Translation of whole or part into another medium as a derivative work.
- Whatever seems “substantial” to an “ordinary observer.”
- A “main borrowing” so “close, so full, so uniform” that it must have been copied. That is, a substantial part had to have been copied.
- Copying of a small but vital part of a work. Neither the whole, nor even a substantial part, needs to be copied to constitute “substantial similarity.”
- Copying rather than “replowing” a common field.
- An imitation of a work rather than an original compilation.
- A borrowing that has a substantial effect on sales or profits.
- Similarities which form part of protected, as against unprotected, expression.
You will, I think, have already seen the problems here. Except for the criterion of “full reproduction”—or almost full—these criteria are all circular. Copying a small but vital part of a work can constitute “substantial similarity” even if the part copied is not substantial. What then makes a substantial similarity substantial? Well, it has to be a vital part. Well, what is a vital part? Well, a substantial part. And round you go. Or, whatever seems substantial to an ordinary lay observer. That criterion can lead, and has lead, to any conclusion you want. And when you enter the world of digital expression, where there is no substance properly speaking, the fog only gets thicker.
I was once asked by opposing counsel what “substantial similarity” meant to me. Fortunately, I had tried to sketch out some answers to this question, drawn from my own experience, just to think things out in my own mind. Here’s what I came up with:
- A substantial similarity is one which can be found in the text, rather than the imagination of the beholder.
- It is one which is not explicable by coincidence.
Examples of coincidence (taken from cases I worked on, where they were offered as evidence of substantial similarity):
- The name “St. Joseph’s” occurs in both properties as the name of a Roman Catholic college.
- A jeep is used in both properties.
A substantial similarity is one not explicable by generic similarity.
Examples of generic similarity (again, and below, from cases I worked on):
- A crucial basketball game in two properties about basketball.
- A judge and courtroom in two properties about a trial.
A substantial similarity is one not explained by ordinary literary requirements for dramatic interest.
Examples of requirements for dramatic interest:
- In both properties, there is a woman who provides conflict/romance with the hero.
- In both properties, there is some kind of difficulty to be overcome and some kind of climax.
A similarity not explicable by current artistic fashion.
An example of current fashion (this from a case about a basketball movie called The Air Up There:
Apparently, there are a lot of people out there who think a screenplay about an American who forges a basketall team out of a collection of African natives is a marvelous idea; there have been at least three to cross my desk in the last year
[Creative Artist’s Agency Reader’s report on a script titled Roundabout]
(In my experience, the force of fashionability is one which plaintiffs simply cannot understand. That Hollywood is an enormous engine for inventing entertainment properties and that, since it is an intensely self-referential place, similar properties will regularly be invented, properties so similar as to make the Idea/Expression distinction impossible to apply, is too much for many authors to understand.)
A substantial similarity must be explicable in terms of believable artistic creative process.
Examples of unbelievable artistic creative process alleged to be substantial similarities:
The heroine of Defendant’s TV series is a woman named Maggie. In the course of the series, Maggie wears a straw hat. In Plaintiff’s novel, there is a horse named Maggie. In the course of the novel, the horse wears a straw hat, with its ears sticking through holes cut out of the hat. Plaintiff argues that the writers of the series, all accomplished professionals, could not invent a heroine who wore a straw hat. Instead they had to steal her “character,” a horse, and change the horse into a human being, while keeping the straw hat by removing the holes in its crown.
(I composed a brief fictional account of how a group of writers, sitting around a studio table, would decide to transform a horse into the heroine and the possibilities they might consider. The lawyers I was working for thought this miniature treatment too irreverent and salacious, and wouldn’t let me use it.)
Another example of alleged substantial similarity:
In the opening title sequence of Defendant’s movie, a rising sun is seen as passing behind the title. In Plaintiff’s screenplay, a stage direction occurs which describes a setting sun. Plaintiff alleges that the writers of the film, all accomplished professionals, could not have invented the idea of a rising sun, but instead had to steal from Plaintiff’s script the idea of a setting sun and reverse its direction.
So, here was the theory. Two key concepts, idea/expression and substantial similarity, both of which were, when you leaned on them, as wriggly as a snake. (“Snake” — “David, I’m sorry it just slipped out.”) And, in addition to these two key concepts, a set of guidelines for how an expert could be used which combined all the usual, and usually self-contradictory, arguments about what a literary critic does.
But when viewed in the moonlight, these theoretical confusions did not prove such obstacles as you might think. The great advantage of my copyright work was that it all took place in the world of litigation. The theory was there, but always as something to use, not something to get straight. The more confusing it was, the more likely you could devise an argument useful to your side. The literary expert might have a problem with the theory but that was his problem and he was expected to keep it to himself. This was very good training for an English professor. In academic life you are always tempted to grab hold of a theoretical cloud and float away on it. Literary studies had not embraced “theory” so religiously when I began this work as it has done since, but the temptation was always there. Want to do copyright work? Well, take a copyright course. Learn to talk the talk. I soon saw, however, that this was a mistake. Impersonating a lawyer was, in the first place, against the law. Second, and more important, it annoyed the lawyers you worked for. You were presuming above your station in life. Furthermore, you might try to bill out at the same rate they did. This imperiled one of your main attractions, that you worked cheap—at least in their terms. Third, it cast your mind just where, as an expert witness, it ought not to be, in an advocate’s frame of mind. The lawyers who employed me usually wanted me to do this, in spite of saying they did not want me to do this. Just sign a statement saying, “Obviously, substantial similarity. Big damages!” Or, “Obviously no substantial similarity!” But if expert testimony was to be of any use to a court—and that, surely, must be its purpose—then you must try to preserve a disinterested frame of mind. Clearly, you are working for one side, but you’ve agreed to do so because you think that a disinterested examination of the evidence supports that side. It is a difficult role to play and style to embrace. You need to understand something about the law in order to fit your literary argument into that context but you don’t want to argue like a lawyer. Or, still, worse, like a law professor, trying to sort out the anfractuosities of the law. This is truly ultracrepidarian transgression and lawyers rightly don’t like it. Besides, you are tempted to get pompous and this spoils the fun of the argument.
Sometimes, though, the temptation was strong. Consider, for example, the basketball movie I mentioned, The Air Up There. A young assistant coach annoys the head coach by defeating a recruiting prospect in a game of one-on-one and the prospect leaves in a snit and enrolls at another school. To redeem his banished honor, the assistant coach comes up with a great idea. He will go to Africa and recruit a young phenom from among the very tall basketball-playing tribes there. He does so and—just so you won’t have to sit on the edge of your chair—keeps his job. This idea had, I think (basketball history is not my strong point), been anticipated by an actual African player, but even if not, it was in the air (up there) as the CAA reader’s report I quoted earlier shows.
I don’t know how much money the movie made, but it seems to have been enough to attract four copyright suits against it. (Perhaps, at this point, I should explain, for those of you unfamiliar with copyright cases, how these cases work. The people who are going to make the movie take out “Errors and Omission” insurance against such claims, and when claims are made the insurance company hires a lawyer to litigate them and the lawyer, sometimes, hires an expert to assist in the case.) In this case, one lawyer was retained to argue all four cases, like D’Artagnan in The Three Musketeers fighting four of the Cardinal’s guards at once.
The plaintiffs were from different places in the United States. One, from Baltimore, chose to go to trial. The other three agreed on a Writer’s Guild arbitration, a procedure in which two lawyers who have intellectual property practices act as adjudicators, using a less formal legal procedure than that used in a trial. When the three arbitration plaintiffs had to pony up the fee required from each to convene the arbitration (As I recall, it was $7,500 each) one of them couldn’t come up with the money and chose to settle for, as always, an undisclosed amount, so the Cardinal’s Guards were reduced to three, one in trial and two in arbitration. I was engaged by D’Artagnan’s side. Both the trial and the arbitration had lessons to teach.
The plaintiff in the trial had written a 7-page treatment about recruiting a basketball player in Africa. He claimed that 3 ½ pages of his treatment had been stolen to make the movie. (A “treatment” is a brief outline of a subject for a movie or TV show). So, on the one side, a movie that runs 1 hour and 27 minutes. On the other side, 842 words, or 48%, of a treatment on a similar subject. The similarities claimed were—here I must condense—preposterous. The treatment was just a step away from an illiterate scrawl. Its author claimed that the author of the movie’s script, and two of the people involved in making the movie, were unable to make their movie without his 842 words, and were willing to perjure themselves in a court of law by denying that they had used his material.
The attorneys arguing for the plaintiff did not make the mistake I made with Guess Who’s Coming to Dinner. They did not confuse an absurd claim with a chance to make a lot of money from it. (I don’t suppose that I need to explain that the plaintiffs counsel had taken these cases on a contingent interest basis. They would get a share of the award, if any, but the plaintiff did not have to pay them if they lost.) So the trial went forward in Baltimore.
I prepared this case with meticulous care. I created a series of charts that presented graphically just what the plaintiff’s claims amounted to and how the percentages worked out. Furthermore, I was able, as never before, to compare specific passages in a written document with a section of the movie. This was before the days of DVDs and you had to make a separate video to do this kind of thing; this was usually too expensive. There was, however, a medium called a videodisk, a 12-inch platter which recorded a movie in what we would now call Hi-Def. You could not access a particular scene, not, that is, unless you had a particular, expensive, DVD player. By chance, I had such a player. But no videodisk, so far as anyone knew (this was pre-Google days), had been made of this movie. But, again by chance, I was browsing one day in a record shop that sold videodisks and I found one of The Air Up There.
At last I could compare two unlike media, and develop an argument about the relationship between the two. Scene from movie; section of text that was supposedly stolen to make this section of the movie. With this aid, I developed an argument which showed what propositional thought could do if rigorously pursued. No rational person—you’ll have to believe me on this—could have failed to be convinced, even if the initial disproportion of hour and a half movie to 842 words had not already inclined them to agreement.
When the plaintiff entered the courtroom, however, and the jury filed into the box, I knew the case was lost. The plaintiff was lower-class, unprepossessing, and fat. So was his mother, who sat beside him. The jury members were also, to a person, lower-class, unprepossessing, and fat. Everyone was from Baltimore. The testimony of the people who made the movie was clear and convincing. They were all practiced professionals and testified about how they had gone about their work without reference to, or any knowledge of, the Plaintiff’s treatment. The person who wrote the screenplay, an experienced and successful writer, testified clearly about what he wrote and when and why his development notes predated the claimed date of the Plaintiff’s treatment. None of this mattered in the slightest. None of the evanescent and subtle judgments of copyright law were required or made themselves known. The jury found for the plaintiff and awarded him a million dollars in damages.
We are so surrounded by the worship of Hollywood celebrities that we seldom notice the populist resentment, and envy, of the conspicuous depravity which these celebrities reenact. Such resentment surfaced here. So did another frequent ingredient in these cases, the popular inclination to believe in conspiracies, especially plots by the high and mighty against the little people. The creativity required by ordinary professionalism in the entertainment business is discounted; diabolical thievery is so much more fun to believe in. And of course there was a jury’s temptation to play Robin Hood. Against such forces, the subtleties of the law, or ordinary common sense, counted as nothing.
Behind these triumphs over logical thought there lurked a humiliation particularly suited to me. I’ve spent my career studying rhetoric, its origins in classical Greece and its manifestations in the style and structure of later Western literature. The word “rhetoric” has not always been a synonym for bullshit. It has pointed, for most of its history, to the Western education in the word, in the techniques of persuasion by which we get people to pay attention to one argument rather than another. Rhetoric had its origins in the need for public speaking in the emerging democracy of Greek political life, but especially in the need to speak in one’s own defense in the law courts. Classical Athens seems to have been even more litigious than present- day America. (Well, maybe not more litigious.) And the lawyers, of a different sort but still lawyers, who practiced there, were objects of suspicion and scorn just as they are today, and for the same reasons. They could manipulate the emotional and stylistic identifications of a jury so that they triumphed over propositional thinking. So, at its heart, went Plato’s case against the Sophists, and the rhetorical world they represented.
But I have always defended rhetoric, argued that it was the only way in which propositional thought could be socialized. Persuasion had to accompany propositional thought. Many theoretical and literary structures could be built upon such an argument and, in my scholarly work, I built them. (References glady supplied if requested.) Well, often it did not work that way, and this case rubbed my nose in it. Moonlight collided with daylight, and I had it coming.
Such setbacks are the stuff of everyday life for lawyers and they cannot afford to spend much time pondering the paradoxes generated. People will always, in the Anglo-Saxon system of law at least, need a lawyer. David Mellinkoff’s The Conscience of a Lawyer was about this need, and it was pondered by last year’s Mellinkoff lecturers. But scholars don’t often get a chance to profit from such knockdown blows, and they were one of the rewards of my moonlight career.
In the other two cases about The Air Up There, handled in the arbitration, reason prevailed. That is to say, our side won. One plaintiff was suing for 13 million dollars and the other for a similar modest sum. The plaintiffs’ properties were fully-realized screenplays and so comparison could be less derisory. But what made the difference, I think, was that the lawyers who adjudicated the cases had full situational awareness of how properties in Hollywood were created and what generic similarities might result. This made the procedure, at least from my point of view, much more useful than a trial.
But the most interesting aspect of these cases was the dog that did not bark. Take all four cases together and their true nature revealed itself. How could the defendants steal from four different plaintiffs all at the same time? What possible scenario could you construct for how such thievery might occur? Try and see if you don’t find it preposterous, as I did. But if any one of the defendants’ arguments was decided to be true, then what of the arguments presented by the others? Wouldn’t they be as suspect, as possible plagiarists, as the Defendants? After the trial, logically the remaining Plaintiffs ought to have been suing each other in addition to the Defendant. This absurd situation was never discussed, I assume never observed, by the lawyers involved with the various proceedings. It didn’t register on their legal radar screen. To my literary way of thinking, however, it seemed like four gangs trying to knock over the same bank at the same time. I thought of bringing this anomaly to everyone’s attention but decided against it. It would have been the English department speaking in the domain of the law.
Cases of plain outrageous large-scale theft were not common in my experience, but one notable one did occur, and it involved Margaret Mitchell’s Civil War novel Gone With the Wind. In 1980, the French publisher Jean-Pierre Ramsey applied the idea of a film “remake” to fiction. Start a series to rewrite famous texts (“de réécrire des textes célèbres”). In 1981, a French novelist named Régine Deforges followed this lead and published a novel called La bicyclette bleue (The Blue Bicycle). She had read Gone With the Wind in French translation (Autant en emporte le vent) and thought it was a pretty good story. She had also seen the movie, in English with French subtitles. She moved the story from Civil War America to pre-World War II France and made other significant changes: Scarlett became, for example, a “no better than she should be” young girl who yields up her last favors in the hay and, if I remember correctly, also on the kitchen table. There was also an English translation of the French novel that figured in the case. The rights to Gone With the Wind were owned by an Atlanta bank which managed the Mitchell estate, which hired counsel who hired me. I read Gone With the Wind in English and also in the French translation, and the Deforges novel, and its English translation, plus a great deal of supporting material, publicity, news articles, etc. in French. The Deforges novel was, for the first 180 or so pages at least, a straight lift, as pure as thievery gets this side of a Xerox machine. And Deforges admitted this directly in one of her interviews for the French press. (She also had the effrontery, among a long list of people she thanked in the front of her book, to include Margaret Mitchell!)
But the American judge who first considered the case decided there was not enough evidence to bring it to trial. Incredible. What could account for it? I could only think that she had not read any of the work at issue nor Deforges’ confession that she had in fact lifted her story’s first section directly from GWTW. Maybe she couldn’t read French and was ashamed to admit it. What would I charge, I was then asked, to survey the whole case, American, French, English, and write a report? I had, I will confess, visions of sugar plums. Read the French GWTW again, compare it in detail with The Blue Bicycle in French and in English, research thoroughly all the statements in the French press, testify here, in France, maybe even the UK. I named a figure, which now seems so low that, if disclosed, would discredit my professional standing. The bank said nothing doing and that was the end of the affair. After all was said and done, I permitted myself a response I seldom indulged in this kind of work—righteous indignation. Here was one of the major monuments of American popular culture, traduced, that is the only word for it, by a sleazy French novel and the bank was not willing to defend it. Those of you familiar with copyright law will see an additional irony here, for the French take a very righteous attitude toward the “moral” rights of artists to preserve the integrity of their work. You cannot degrade an author’s work—exactly what Deforges did to Margaret Mitchell’s—even if you have bought the rights for a particular purpose.
The lesson here I learned elsewhere as well. Much of the time, maybe most of the time, the court does not read all of the works at issue in the case. How could it possibly proceed without doing so? Sometimes, and I say this as a dismayed observation and not as a boast, I was the only person in the whole case who had read all the evidence. Here, I thought, the moonlight world could have used some English department daylight thinking.
Underneath these incidental conflicts between moonlight and daylight larger ones loomed. I never brought them up in the moonlight but here, I think, they deserve remark. Copyright law proceeds on the root assumption that literature cannot flourish if authors do not have proprietary rights in their work. But they never had them before 1710, if we take the Statute of Anne as a convenient beginning, and yet literature survived and flourished. The whole history of Western literature up until then stands as proof that the root copyright assumption is false.
Western literature did quite as well before The Statute of Anne as afterwards. It proceeded, until copyright, on a different basis of ownership. A poet, when entering upon the poetic task, asked for inspiration from the Muses. They were the fons et origo of poetry. What a poet’s muse was asked to supply was the power to transmit the collective wisdom of the society in a memorable form. The “content” was not something that the poet owned, could own, or should own. This was true, by definition, in an oral culture, where the culture had no means of notation and depended on memorable poetic reiteration to preserve its wisdom. But also true when writing provided a more permanent basis of cultural memory, for oral habits and assumptions persisted for a long time, persisted indeed until copyright law came on the scene and, in an alembicated form, long after. Persisted, in fact, until today, when they have returned with a rush.
The fundamental drive to literary creation was for all this earlier time not money, not monopolistic ownership, but fame. You wanted to be the one who brought the fire of heavenly inspiration down to earth. The search for fame was as root a motive for Homer and Vergil as it was for their heroes, Achilles and Aeneas, and as important as it was for Geoffrey Chaucer when he began the first great epic in English, his Troilus and Criseide, by asking for help from his muse.
Let me pursue for a moment the case of Geoffrey Chaucer. Chaucer did not make up the story of Troilus and Criseide. It was part of the “matter of Troy” which every poet was free to write about. And Chaucer did not pick the story out of the air; he borrowed it from an early work by Giovanni Boccaccio, Il Filostrato (The Love-Stricken). Boccaccio completed his poem by about 1340. Chaucer wrote about 1385. Under our present copyright laws, Boccaccio could, had he lived to do it (he died in 1375) have gone running for a lawyer, and perhaps would have. And Chaucer was a fierce borrower in The Canterbury Tales, as well. The Sources and Analogues of the Canterbury Tales, which every graduate student comes to know in graduate school (or at least used to) runs to two volumes. The depth of his borrowing can best be illustrated, perhaps, by The Wife of Bath’s Prologue, where the earliest source is the Golden Book of Marriages, written by Theophrastus in 300 B.C., and the latest was Eustache Deschamps’ Mirror of Marriage, finished only a few years before Chaucer wrote.
It is no exaggeration to say that Chaucer could not have put forth most of his work had he worked under current copyright law. One can easily imagine the letters of warning he would have gotten from agents and copyright lawyers and the permissions he would have had to pay, if he had been lucky enough to be allowed to pay them—and could have found the money.
But Chaucer’s difficulties would have seemed trifling to a later pillar of English literature, William Shakespeare, had he lived in our current copyright world. Almost all his plays have sources, some of them very close. Take, for example Romeo and Juliet. Shakespeare’s immediate source was a poem by Arthur Brooke, The Tragicall Historye of Romeus and Juliet, published in 1562, some 35 or 40 years before Shakespeare’s version. Shakespeare’s play follows Brooke’s poem in embarrassing detail, everything almost, except poetic quality. Brooke’s poem is excruciatingly dull, Shakespeare’s play has given love its native language. This huge difference, this unbridgeable gulf, would not have protected Shakespeare from Brooke’s wrath, had they both lived in the present climate, however, because artistic quality is not allowed as a criterion in copyright cases. But Shakespeare could have pointed out, in self-defense, where Brooke stole the story from. It was not theft, Brooke might have replied, but honest borrowing since his (that is, Brooke’s) title page says “written first in Italian by Bandell” (a short-story writer named Bandello, whose stuff was often “adapted” into French by someone named Belleforet) and his (again Brooke’s) “To the Reader” preface mentions a play on the same subject “lately set forth on stage.”
At this point, I must stop and float a large speculation based on these two examples of how daylight diverged from moonlight. Literature proceeds, has always proceeded, by borrowing, imitation, remaking, translating. We are told that, without copyright laws, new literature would not be created. Whether or not this is so, we can certainly say that much, maybe most, of Western literature would, under the present rules, be against the law. I taught Chaucer and Shakespeare almost every year of my daylight career. But this daylight world could not have existed had the current moonlight rules prevailed. I would venture a broader generalization. The whole history of Western literature would have been radically different had the current moonlight shone upon it. Some of it, maybe much of it, would not have happened at all.
I don’t think such a statement is counterfactual history, or at least not altogether so. By Shakespeare’s time at least, and maybe in Chaucer’s time before that, there is a sufficient factual record to enable empirical study. It would be a revealing exercise to read those past times in the present legal moonlight and see what you came up with. Chaucer did not write for money; Shakespeare clearly did. How would you plot the lines of creative force as English literature moved from the one to the other?
As if these claims were not risky enough, I’ll make an even stronger one. Western literature, in the present legal environment, would not have had, could not have had, a history as we understand the word, that is, as a series of causal relations rather than as “one bleeping thing after another” (to bowdlerize a line from “The History Boys”). We must return to rhetorical training to support this argument. Rhetorical training was a training in the word that was based on copying, imitating. One of the exercises Shakespeare would have done as a schoolboy is taking a passage in English and translating it into Latin, then, the English removed, translating it back into English. Such copying exercises were built into the central backbone of training in the word. Originality was not what it was all about, nor ownership. To eliminate copying, or cartelize literature for a period of life plus 70 years, as we do today, you would have had to eradicate the whole educational system.
This brings me to the biggest collision between the two lives I’ve led. It all began with a case about Barbie dolls. That case taught me the most, and was the most fun, of all the cases I’ve worked on. It was also the one which most fully exposed my cultural arrogance. I regret that I can only sketch it now (“I know, I know, not too much about snakes”), but I can refer you to a long fictional script about it which occupies a chapter in my recent book The Economics of Attention. A young Danish pop group included a song called “Barbie Girl” as the featured selection in their first album. Evidently Mattel, the maker of Barbie, did not object until the song started making the hit parades. But when the album was released in this country, Mattel sued MCA, which had released the album. Now normally Mattel proceeds against only the small and defenseless, which MCA is not, so the case got as far as a Summary Judgment, where the judge dismissed it. I worked for the MCA side. From the legal point of view, the case was about trademark and trade dress issues but, from where I sat, it was all about Barbie’s character. She had, Mattel argued, been slandered. She was not the frivolous party girl portrayed by the Danish group, but instead quiet and well-brought up. Right.
I looked into Barbie’s character and, lo and behold, she was hot merchandise in an unexpected sense. She had been stolen from a German sex-toy doll named Lilli, who in turn was derived from a newspaper cartoon character of the same name. If I put these two babes—Lilli and Barbie— side by side on the screen I bet you couldn’t tell which was which. Ruth Handler, Mattel’s founding mother, had seen Lilli in a Swiss shop window, took it home, and had it copied. The great secret of Barbie’s popularity was not based on the doll itself, about whose physical measurements you would scarcely believe how much has been written, but on Ruth Handler’s decision to sell it to little girls instead of horny men. It was one of the seminal decisions in American marketing.
Barbie really did come to be a cultural icon, generating a dozen fundamental debates. The center of Mattel’s argument, again from my point of view, was the claim, to quote from Mattel’s complaint, that “If anyone wants to dance with Barbie, they will have to ask us first.” Mattel has been famous for its zealous eagerness to sue anyone who presented Barbie in an unfavorable light. This zeal came from a fundamental economic insight, their awareness that the center of Barbie’s value lay not in the doll but in her place in the cultural conversation, and that conversation was what they claimed to own.
Dozens of other plaintiffs since then have advanced the same claim. It motivates the litigation that now falls around MySpace and YouTube thick as snowflakes in Siberia. We live in an economy where the scarce item is no longer physical stuff but human attention. That’s what is in short supply. And so that is where the value has migrated, where it is added. Our current frenzied worship of celebrity, and obsession with brands and brand awareness, are not an accident but part of this larger shift. The cultural conversation is the locus of economic gravity and everybody wants to own it, or at least a part of it. This is very different from owning physical stuff. Owning Barbie is not the same thing as dancing with her. This distinction stands at the center of the current copyright debates.
Here is where my daylight and moonlight worlds collided with such force that they fused. I had been thinking and writing for a dozen years about what happens when words migrate from the printed page to the digital screen. In the digital expressive space, the assumptions that came from the printed book changed. The Renaissance humanists placed at the center of their endeavor editing the great Greek and Latin texts into fixed, permanent, authoritative editions. All that authority evaporates on the digital screen; there you can change the text if you want to. The politely frozen silence of the Victorian concert audience dissolves, too, into all the devices audiences now have for talking back. The physical substance of the book evaporates into thin air. Word, image, and sound swim in an ever-shifting synesthesiac soup. Written words persist but oral culture returns with a vengeance. In an oral culture, you have to keep talking or the world goes away. There is no written archive you can consult to prove it exists. You want a constant envelope of image and sound to remind yourself that you are alive. That’s why, when you walk across campus, all the students are talking on their cell phones and have miniature loudspeakers plugged into their ears.
The more I thought about these changes, the more they seemed to add up to a fundamental economic change. The scarcity which economics studies was not a material scarcity any longer but a scarcity of information and that meant, since we have to pay attention to information to make sense of it, finally a scarcity of attention. And in an attention economy, property changes its nature. Real property used to stand at the center, intellectual property at the periphery. Now they have changed places. This change has occurred in the period when I’ve been doing this expert-witness work.
And so the two worlds I had been working in fused into one. All the changes brought about by digital expression or, as it has come to be called, “digital rhetoric,” which I had been studying in my daylight world, were revolutionizing the copyright moonlight. The main lesson in this change was taught by Barbie. Her essence was change, her perpetual change of costume. That was where the money was, in all those new dresses for her that girls had to buy, not in the plastic doll herself, shapely as she was-at least until they came out with the new frumpy flat-chested version. How can you “protect” an essence that is always changing?
It is this fundamental change from stasis to metamorphosis, from one kind of property to another, which the copyright bar now finds perplexing and which a part of it is at pains to deny. The products of the human imagination are what the economists—with their gift for the poetic phrase—call “non-rivalrous goods.” By this they mean that they are a different kind of cake, one you can, in spite of the proverb, eat, have, and give away too. Our conventional sense of ownership just does not fit here, much as we would like it to. It fits fine the new kind of orality which digital expression has created, the environment where YouTube, MySpace, and interactive TV shows like “Lost” thrive.
What does not fit so fine in this new world is the kind of expert witness work I’ve done in my moonlight years. The kind of close analysis I’ve done depended on a fixed, authoritative text, not on an ever-shifting cultural conversation. The copyright world now is occupied in staking property claims to this conversation. Such claims pose grave dangers to the life of the mind and imagination, as legal scholars such as Lawrence Lessig, Siva Vaidhyanathan, and Jessica Litman have pointed out. But the debate has migrated from the literary world to the world of popular music, video, and film. And the thinking needed in that world must come not from the world of copyright law but from taxation and trade policy. The various “solutions” proposed for the YouTube kind of problem amount, so far as I can see, to excise taxes on the life of the mind. These may be justified or not, but the history of taxation in which such a discussion must be based lies well outside my knowledge and experience. Here the economists seem of more use than the literary critics. If the free market of ideas is to be surrounded, or indeed has been surrounded, with new and inventive kinds of tariffs, the debate about them may occur far from the conventional copyright conversation. Digital expression will force us to confront more acutely than we have the differences between the free market of physical stuff and the free market of ideas, between the goods of the world and what Dante called “il ben del intelleto”, the good of the intellect. That confrontation won’t happen in the kinds of copyright cases I’ve worked on. My moonlight job has, I fear, come to an end along with the moonlight which sustained it. It will be interesting indeed to see what comes next.
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