I never understood the news reports that someone has been paid a bunch of money for the rights to his or her story. Your “story” is not something you own. It’s just something that happens.

When I published A Day in the Life of Timothy Stone, I wrote to all of these authors and publishers for permission to use all of these pieces of song lyrics and other fragments from books or movies or magazines. I wasn’t sure if I needed it, but I figured I might as well be on the safe side. Austin & Winfield had required me to do it before they would publish America and the Law, and I hadn’t had any problem. Of course, most of that was non-fiction. With Timothy Stone, pretty much everyone granted permission either gratis or for $100. But Don McLean would not give me permission to use pieces of American Pie. I did a little research, and it looked to me like it was “fair use”, so I decided to roll the dice. I figured if he ever pressed the issue, I would say, “Fine, my losses are about $200 a year, so why don’t you write me a check for twenty bucks, and we’ll call it even.”

But I started to think a lot about the “rights” to something like that.

Yeah, sure, if I copied a Don McLean album and sold it, I can understand that. But no one is buying A Day in the Life of Timothy Stone to get a few mangled pieces/parts of the lyrics of American Pie. Even if the book were profitable, I wouldn’t be making money off of him.

I would just be writing about life.

Life includes not only cars moving, and seasons changing, and kids playing, and conversations, but exposure to books, and music, and television, and film.

Why can’t you write about that? Just like any other event.

The filmmaker, or author, or musician, has put his stuff out there. He or she has presumably been paid for it.

Sure, we don’t want to let people steal things.

But no works of art are completely “original”.

People use words, and language, and phrases, and notes, and events, and facts, and ideas, that are part of the common human experience, which belongs to everyone.

Particularly in the context of non-fiction works.

I understand, of course, that there is an art to it. And there is often a lot of time and effort and even expense that goes into gathering, researching, framing, analyzing, interpreting and presenting the material in an effective way. Obviously you don't want to let just anybody come along and profit off of someone else's work product.

Yet how can someone "own" a fact? How can someone "own" an event? How can someone "own" a statistic?

I was watching a forum on Book TV a few weeks ago. The topic was Google’s project to scan, image, and make searchable the contents of the Harvard Library. And one of the intellectual property lawyers made the argument that intellectual property is just like any other property. Just like no one would be able to come and take your table, or your telephone, they can’t come along and take your intellectual property, and use it, without your permission.

The fallacy in that way of thinking, it seems to me, lies in the concept of singularity.

There is only one physical table. There is only one physical telephone. If someone else is using your physical property, he or she is, by necessity, depriving the owner of its use.

The use of intellectual property, by contrast, is not mutually exclusive.

The same thoughts, and ideas, and words, and sentences, and images, can be used infinitely, by an infinite number of people.

So the test has to be something else.

I, personally, would be inclined to use something like the “substantial factor” test. If the original author or owner’s property – i.e. words, thoughts, notes, phrases, images, ideas – is a substantial factor in the purchase of a “derivative” work, then the original author or other owner is probably entitled to some commission.

I’m still not sure if he or she should have the absolute right to control the use of the property – i.e. in the sense of a “veto”.

But I think he or she is entitled to be paid.

At the same time, you can’t stop evolution.

Images, stories, language, characters, music, events, ideas, must be afforded the freedom to evolve.

They say that imitation is the sincerest form of flattery.

Or parody.

But, in either event, the authors, celebrities, studios, and others who find themselves at the fountains and the gates of popular culture should likely spend a little less time and effort guarding the fountains and the gates, and a little more time being flattered.

Recently, I read an editorial in the New York Times by Suzanne Vega (“Tom’s Diner”) regarding the alleged “plagiarism” by Bob Dylan of some old Civil War era poetry by Henry Timrod.

Putting aside the issue of whether the song lyrics sufficiently resemble the Timrod poems to qualify as plagiarism in any context, I wasn’t aware that “plagiarism” really existed outside of the realm of Academia.

I didn’t think there was any type of legal or even social proscription against it; I thought it was merely a form of “cheating”.

Sure, it’s nice to give credit where credit is due. But Timrod is dead, presumably. Any copyright or other royalty interest that might be owed to him or his family has long expired. So I’m not sure what the “requirement” – or prohibition – is?

Don’t we want people to take ideas, lines, characters, plots, themes and phrases, and use them in different ways?

Don’t we want artists to build upon one another? To collectively evolve? Expanding or re-working or inverting stories or other forms of expression?

The other question, of course, is: What type of credit is due?

I guess Bob Dylan could have fairly easily included a reference to the Timrod poems in the sheet music, the CD cover, and the liner notes (if any).

But Ian McEwan, for example, specifically acknowledged Lucilla Andrews and her work No Time for Romance on the Acknowledgments page of his novel Atonement.

What else is he supposed to do?

Superficially tweak the sentences a little bit more, like some high school student trying to write a term paper?

Or are authors supposed to comprehensively footnote even fictional works, citing literary allusions or other references as they may appear on each page?

What about works, such as those of T.S. Eliot or Joyce, where an essential part of the experience for the reader is the identification, revelation and interpretation of double- and triple-meanings which are embedded in the text from previous works?

(The whole point, or at least a big part of the point, is not having a definitive “answer”.)

(Or certainly not one that is readily apparent to the reader.)

Is David Mamet supposed to formally credit Arthur Miller in Glengarry Glen Ross?

Is that work, (with or without an acknowledgment), an example of “plagiarism”?

It’s reminiscent of the “intellectual theft” suit brought by the authors of The Holy Blood and the Holy Grail against Dan Brown, claiming that the “theme” of the Da Vinci Code was taken from “the whole architecture” of research developed in their non-fiction work.

I haven’t compared the books to see how identical they truly are.

But is the idea that Jesus and Mary Magdalene might have given birth to a secret bloodline either original enough, or particular enough, to pre-empt its use in any subsequent work, of any kind?

When I was reading the Da Vinci Code, I was actually thinking that it was a dumbed-down version of Foucault’s Pendulum.

Did Umberto Eco steal, or infringe, or plagiarize from The Holy Blood and the Holy Grail as well?

Particularly when dealing with short works such as poems and songs. There are so many lines that can be put together. They say that 10,000 monkeys typing for 10,000 years will produce Shakespeare. (Or something like that.) 10,000 poets and musicians are going to come up with similar lines. You could have sub-conscious or semi-conscious influences. Or you could have two completely separate creations which are similar, yet both truly original.

I am not naive enough to believe that I will ever get rich or famous as a writer, during my lifetime. I write, when I’m able, as a vain and futile attempt to gain some type of “immortality”. So, to me, credit is everything. And I would hope that, should something I have written be worth repeating centuries from now, someone would give me the appropriate credit.

But if the choice is melting into oblivion unknown and unread, versus having someone else become rich and famous by stealing my ideas or words, I’ll take the latter.

(But don't quote me on that.)

A few weeks before Time Magazine named “You” the 2006 Person of the Year, John Pareles published a column in the Arts & Leisure Section of the New York Times, entitled “2006, Brought to You by You.” Discussing various aspects of the “Web 2.0" culture of MySpace, YouTube, wiki, blog, and other methods of self-expression, Pareles notes that:

“Copyright holders might be incensed; since buying YouTube, Google is paying some of them and fielding lawsuits from others. But a truly shrewd marketer might find some larger value. Those parodies, collages, remakes and mis-makes are unvarnished market research: a way to see what people really think of their product. They’re also advertising: a reminder of how enjoyable the official versions were. The amateurs may seem irreverent, disrespectful and even parasitical as they help themselves to someone else’s hooks. But they are confirming that the pros came up with something durable enough to demand a reply.”


- John Pareles, “2006, Brought to You by You” New York Times, Dec. 10, 2006, p.30.