Get me copy.

One of the things I love about the Internet is the ability to click on a couple links and find myself at a site I never would have sought out on my own. Smart Bitches Trashy Books posts reviews of romance novels by a few self-described “smart bitches.” I don’t read romance novels, I’m not that smart and I do try not to be a bitch, so I never would have gone looking for this website. But a blogger with whom I share other interests linked me there, just in time to catch this discussion:

http://www.smartbitchestrashybooks.com/index.php/weblog/finally_heard_back_from_signet/

Apparently an author of historical romances has been exposed for having incorporated someone else’s material into her books. Her publisher stepped up to defend her by invoking the fair-use doctrine, which I remember well from my days as an intellectual property lawyer.

(Aside: it was always such fun to introduce myself as an intellectual property lawyer; people instantly assumed that I myself was intellectual, or at least pretentious.)

Anyway, in a nutshell, fair-use permits another to use copyrighted material for purposes such as scholarship, research, criticism, etc. The factors to be examined in determining whether use is fair include: (a) whether the use is for commercial or non-profit purposes; (b) the proportionate amount of the material used; and (c) whether the works would compete with each other in the marketplace. There’s no bright-line test, and the determination is always case-by-case and fact-specific.

Without having read any of the works in question, I can’t weigh in on whether the fair-use doctrine applies to this author’s work. But I’m struck by a couple of points raised in this discussion.

First, the publisher argues that “the fair-use doctrine permits reasonable borrowing and paraphrasing of another author’s words, especially for the purpose of creating something new and original.”

Dear Publisher: You should have cut that sentence off at the comma. Regardless of whether the “borrowing and paraphrasing” is permitted by law, there’s no way an author is creating something “new and original” when she’s using “another author’s words.” Sincerely, Bonnie.

But I think the Smart Bitches’ rejoinder misses the mark, too. The poster argues that regardless of the legalities, from an ethical standpoint, the author has done wrong.

I don’t think ethics has any place in a discussion of art or literature. Do we reject a novel because the circumstances of its creation were unethical? Imagine that Nabakov based Lolita on his real-life exploits with (and exploitation of) young girls. Unethical, illegal, disgusting, but Lolita would still be an original work of art. What if Mario Puzo gathered all his material by paying off mobsters who then used the money to import drugs? Probably unethical, but The Godfather is still worth reading. (Though perhaps not two dozen times, my darling husband.) Harriet Beecher Stowe gained fame and fortune on the backs of slaves, and Mark Twain used the N word repeatedly. What’s ethical and who decides?

The debate shouldn’t be about ethics so much as art. A plagiarized work isn’t art; it’s just a repackaging of someone else’s art.

Novel. The word means new.

People like to say that there haven’t been any original stories since Shakespeare or the Bible. Everything since then is just a retread.

I don’t agree. The themes might be familiar, but there’s plenty of space in the human imagination to create original characters and plots and settings to address those themes. There’s plenty of space for original ideas. And, of course, there’s infinite space to create original prose, and no excuse, ever, for borrowing someone else’s.

Madame Grammarian

A hazard of being known as a writer is that people often imagine that I know all the rules of grammar and punctuation. I’m pretty good at faking it if all they want is for me to run my eyes over something and tell them if it’s right. But when they follow up with “What’s the rule?” — I’m revealed as the empress with no clothes. Here’s the latest example. A lawyer-friend (not to be confused with a friendly lawyer) is drafting the deal documents for some billion-dollar transaction. The agreement provides for payment of a sum that’s either X or some formula that results in Y. Specifically, the agreement provides that the greater of those two sums must be paid. My friend’s question: is the amount to be paid the greater of “X and Y” or the greater of “X or Y”?

My knee-jerk answer was “X and Y,” and on further reflection that seems the logical answer, too. There is a universe of two outcomes — conjunctive, not disjunctive — and we must choose the greater of those two. But for many people, “the greater of X or Y” sounds right.

What’s the answer, and what’s the rule?

I don’t know the rule, but I know the answer. Rewrite the damn clause so that it requires “the payment of X or Y, whichever is greater.”

I Got Chills; They’re Multiplying

According to the National Endowment for the Arts, fewer than half of adult Americans report having read a work of creative literature during the previous year, more than a ten percent decline since 1982. (2004 NEA report here, http:/www.nea.gov/pub/ReadingatRisk.pdf, and updated here, http://www.nea.gov/research/ToRead.pdf)

Caleb Crain does a detailed analysis of this trend in the Christmas Eve issue of The New Yorker (and what a lump of coal that was). http://www.newyorker.com/arts/critics/atlarge/2007/12/24/071224crat_atlarge_crain?currentPage=all. His focus is largely on the effect of this trend (e.g., a decline in the ability to think abstractly), not the cause, and the NEA doesn’t directly address caustion either; it reports only a correlation with increased participation with electronic media.

That’s the conventional wisdom, I suppose, that there are too many other media competing for our attention. Back in the heyday of reading, it was either read or whittle, and eventually you ran out of wood.

But I’m afraid that it might be more than just a question of time allocation. I’m afraid the trend shows a societal backlash against literature by an increasingly anti-elitist population. Crain notes that literary reading might someday become the province of a special “reading class,” as it was in the 1800’s, but without the prestige of exclusivity that it had in that era; instead, it will be regarded simply as an arcane hobby.

Literary reading used to be something that non-readers aspired to, not scoffed at. In the pre-mechanization cigar factories in Ybor City, Florida, the workers would listen to a lector read great works of literature while they hand-rolled each cigar. (This practice inspired the Pulitzer-prize winning play, Anna in the Tropics, by Nilo Cruz.) Can you imagine assembly-line workers today giving their rapt attention to a well-dressed lector reading Anna Karenina? There would be jeers and catcalls, cries to shut the f__ up.

Egalitarianism is usually a good thing, but not when it fosters an attitude that nothing and no one is better than me, and I don’t need to aspire to nothing. Literary reading isn’t just overlooked in the flurry of multiple media, it’s rejected as too snooty, too condescending, and who you think you’re talking to?

The same attitude is apparently at work in the growing (and also alarming) trend of newspapers to drop their book reviews. The former book editor of the L.A. Times blamed it on “faux populism,” explaining that only the books that can be understood by the greatest number of readers can be reviewed, because anything else smacks of elitism. http://vueweekly.com/articles/default.aspx?i=7761

What’s the solution? We’re not going to change the nature of the populace, but we could change the way literature is presented to them. We should stop force-feeding archaic texts to our high school students. Yes, Shakespeare was brilliant, but save him for college. Teach literature as a form of entertainment and not torture. Make it accessible. Make it fun.