Idly paging through the latest (October/November) issue of AWP's The Writer's Chronicle tonight, I happened upon Ronald Goldfarb's (the AWP's legal counsel, according to their masthead) "Unfair Use" a short essay about the legality of new work incorporating elements of old work. I have no doubt that Goldfarb's legal opinion is much more informed than mine, but, still, I really have to take exception to some (many) of his claims, as a writer who is guilty of much of what he rails against.
This is how Goldfarb sums up his argument:
Art should not be ripped-off in the name of fair use, especially by another artist... Fair use needs to be carefully, and I would argue, conservatively construed in a time where technology is so pervasive and when misappropriation is so simple to accomplish.
And this conclusion is perfectly in line with the rest of the essay, which uses as its primary example the Shepard Fairey Obama "Hope" poster. I won't argue the specific merits of Fairey's Fair Use claims, but I do say that this example is a case of comparing apples to oranges, or apples to novels. Goldfarb's two literary examples, J.D. California (the whole Salinger thing that I posted about a while ago) and Alice Randall (The Wind Done Gone, a parody of Gone with the Wind) may or may not be "fair use" as the courts define it, but they are both entirely different, artistically and legally, from Shepard Fairey's appropriation of Obama's image, and NOT AT ALL "simple to accomplish" for the writers in question.
However Shepard Fairey arrived at his image, he took the Mannie Garcia photo and added new elements to it (which is, as Goldfarb at least acknowledges, perfectly within the bounds of fair use as Congress has defined it). That is, the Mannie Garcia photo remains, as an artifact, in Fairey's new image. But neither Randall nor California could possibly perform the same function on their appropriated materials, or rather, the materials could not possibly remain whole after undergoing the process of creating a piece of writing. Reading either of their novels does not give one the same knowledge of the original novels that Fairey's poster does of Garcia's photograph. The literary endeavor, the actual work of a writer, his/her method of putting words on paper is not and cannot be the same as the visual artist or a musician in creating their respective artworks. Where a DJ drops a needle on a record or an artist draws on or otherwise manipulates a reproduction of an artwork, the writer does not, unless he is Borges's Pierre Menand, simply reproduce, in part or in whole, another artist's work. It is simply impossible without in fact reproducing another writer's work, and Goldfarb is not arguing that anyone has done that. That is plagiarism, and a whole other ball of wax.
Goldfarb sets up the use of "characters, settings, plots, and even some passages" (I can, to be fair, understand the problem of using "some passages" from someone else's work-- it is, after all, what I've just described as plagiarism, though even that must have its boundaries) from a pre-existing book or story as examples of how a writer might unfairly use another's work. Setting aside the fact that such "unfair use" has already been decided allowable under certain conditions in the music and (for the most part) in the visual art worlds, such criteria would, after all, qualify Joyce's Ulysses, for one very obvious example, as "unfair use." In fact, a great deal of what we value as great literature would very probably qualify as unfair use. Chaucer's Canterbury Tales is a blatant rip-off, in Goldfarb's terms, of Boccaccio's Decameron. How many writers have ripped off Chaucer ripping off Boccaccio? How many have "ripped-off" "characters, settings [and] plots" from Greek myth? Or from the Bible? How many times have passages from the Bible made their way into books not the Bible?
This is hyperbole, of course, but with a point: we do not say that those writers were ripping anybody off, but that they were appropriating, or even simply referencing, another's work with some end in mind. They didn't do it just because they could, or because they expected to retire on the back of it-- they did it because the work demanded it, because it enriched the work.
The critical element, as Goldfarb writes, is that both the song (he has also used 2 Live Crew's sampling of Roy Orbison's "Oh, Pretty Woman" as an example of "unfair use") and the book wouldn't have existed without the earlier works, and thus in my mind were not original.
A very, very, very bold statement, and one which, again, disqualifies most of the body of literature from being "original," thereby making it potentially illegal as "unfair use" of someone else's writing. Would Ulysses have existed without, well, Ulysses? No, obviously not. Was it original? Does it matter?
The problem, to me, is that, in the case of writing, characters, setting, plots, even words and phrases, are not so much the end product as a print is the end product of the taking of a photograph, as they are tools in the making of that end product. Characters, settings, plots, words-- a writer uses them as a photographer would use a particular type of camera, lens, light, subject, paper, and developing process. No one raises a ruckus when two photographers both use the same lens to shoot the same subject, and why would they?
Writing's tools are its ideas, and those tools cannot be copyrighted any more than a screwdriver or a hammer could be (though I guess a particular design might be, just as a specific literary work might be, just not the class of ideas of which it is one, and only one, part). That is why we have "fair use," Mr. Goldfarb, and why we absolutely need it. Ideas are common property, or at least the thinking of them is, and it can't really be any other way, because they can never be proven to be "original" with any one person, and there is nothing to stop any person from having them, whether originally or unoriginally.
It might seem clear that, for instance, my use of a character from Raymond Chandler's The Big Sleep is "original" with Chandler, and for me to claim otherwise would be disingenuous and probably illegal. I make no such claims. But Chandler taught himself how to write by taking other people's stories apart, reducing them to an outline of basic plot elements and characters and setting, and then trying to build them up into stories again. He acknowledged, in particular, a huge debt to Dashiell Hammett. So exactly how "original" is Chandler's gumshoe, Philip Marlowe? How original was Hammett's Continental Op, much closer in spirit to Marlowe than Sam Spade, for instance? Hammett says that he based the Op on a man he knew in the Pinkertons. Should Chandler make explicit reference to that man, maybe pay him royalties, for the success of his novels with Marlowe? No, of course not. Nor should he be penalized for finding inspiration in Hammett's stories. Nor should anyone be penalized or enjoined against finding inspiration wherever they find it. No, Mr. Goldfarb, the critical element is not some wrongheaded notion that each and each piece of art should be purely "original", as though some adjudicator existed who could possibly determine that, but that the artwork exists at all, that it is free to exist.
Perhaps Mr. Goldfarb should reread "Pierre Menand." And then Lewis Hyde's The Gift.