A Of course I do.
Q Now here is your protagonist Thomas, page 39 of the second scene, arguing with the character Kane. ‘This is rubbish! The two of you bowing and scraping to each other like a pair of fools. If you really want to know what justice is, Kane, don’t just ask questions and trip him up every time he answers. You know it’s easier to ask than to answer. You answer now, and tell me what you think justice is . . . ’ Kane responds. ‘Don’t be angry with us. If we’ve made mistakes we couldn’t help it. Why, if we were looking for gold we wouldn’t waste time bowing and scraping to each other, and we’re looking for something worth much more . . . ’ until Thomas loses patience. ‘All right then, listen. I say that justice is nothing but the advantage of the stronger. There. Why don’t you clap for that?’ You recall writing this passage, don’t you?
A Of course.
Q And do you see a striking similarity between it and the one just before it?
A Of course.
Q Let me briefly review one more so that no doubts remain. Your character Kane again. ‘The Bible certainly can’t mean to give everything back on demand to someone who’s out of his senses, a man whose shotgun you’ve borrowed, to give it back to him when he’s out of his head. Still, it’s owed to him, isn’t it. So, the repayment of a debt is justice, but this case is not included?’ Now if I may ask you to compare this, ‘Concerning justice, what is it . . . ? Suppose that a friend when in his right mind has deposited arms with me and he asks for them when he is not in his right mind, ought I to give them back to him?’ And so forth, now again. Do you find a striking similarity here?
A Of course.
Q Can you identify the source of the passages I have cited in comparing your work?
A Of course.
Q Will you please do so for the record?
A The first book of the Republic, obviously.
Q Can you be more specific?
A Book One of Plato’s Republic.
Q You say from, from the work by Plato. Do you mean lifted from? taken from?
A Paraphrased.
Q Do you mean the idea, or its expression?
A Both.
Q Now the principal idea set forth in the first book of Plato’s Republic is the attempt to define justice, is it not?
A Yes, it . . .
Q It’s simply there isn’t it, the way you might find Richard III in Holinshed, or Caesar in Plutarch, all just there for the taking?
Q No but those are historical figures, this is an idea.
A Fine. And when Thrasymachus says, ‘I proclaim that justice is nothing more than the interest of the stronger’ he is simply expressing an idea, is he not?
A His own interpretation, yes.
Q Exactly. He’s quite a cynic, isn’t he.
A No. No he’s a Sophist, quite a different school. The Cynics were . . .
Q Sophist of course, I stand corrected. A school as you say, they charged fees for their teaching and Thrasymachus now wants to be paid for discussing justice doesn’t he? And when Socrates pleads he has no money and his friends, Glaucon and the rest of them, offer to pay his part he’s posing as a poor student isn’t he? But he’s really turning the tables, compelling the teacher to explain what he means with his clever questions it’s what’s loosely referred to as the Socratic method isn’t it, he is really the teacher who is just posing as the amateur, the dilettante as though all this is just a hobby of his? He’s using the ruse that he doesn’t charge fees like Thrasymachus does, the professional, the Sophist, the proud hack like the book reviewer instructing the great unwashed in the works of other professional hacks who . . .
MR. BASIE: I have to object to this line of questioning.
MR. MADHAR PAI: Is this as to form Harold? Is it for the record?
MR. BASIE: It’s for the record and as to form yes, deliberately confusing the witness getting way off the tracks on book critics and . . .
MR. MADHAR PAI: Excuse me old sport, I did not say book critics I said reviewers, there’s a world of difference although the reviewers are delighted to be referred to as critics unless they’re on the run, then they take refuge in calling themselves journalists. Now if you’ll let me proceed with my . . .
MR. BASIE: I can’t let you proceed with this leading the witness and confusing him right along these lines you’re talking about, that’s not what we’re here for.
MR. MADHAR PAI: One of the things we’re here for Harold is to make the distinction between amateur and professional. The witness himself has practically characterized his teaching career as a hobby even though he’s paid, while he’s now seeking substantial monetary damages for work he says was not motivated by mere hopes of financial gain, and since he has placed it in this Socratic context that is the line I am pursuing. Now Thrasymachus is telling us what sort of fellow he is, isn’t he, in the way he expresses himself here?
A Yes.
Q In the way that we agreed characters are largely defined by dialogue, the way they express ideas, and it’s this expression that’s protected isn’t it? Even if the ideas themselves are not?
A I said the idea expressed is the idea executed, when it’s transformed into a play it’s bound to the execution.
Q I see. And so, in short, you felt quite free to simply incorporate whole passages from Plato without attribution into the play you are representing as your own in this action?
A That I what?
Q It’s a very simple question and I think you can answer it. Read it back please.
(Question is read.)
A I just wouldn’t say incorporate.
Q It’s a perfectly good word isn’t it? Shall we read it again?
A No, but I . . .
Q Would you prefer took? lifted? purloined?
MR. BASIE: No, I have to break in here.
MR. MADHAR PAI: Please do not interrupt the witness.
MR. BASIE: I have an objection.
MR. MADHAR PAI: Do you have an objection?
MR. BASIE: The witness is being led.
MR. MADHAR PAI: No one is leading anyone. We’re simply searching for some suitable wording.
MR. BASIE: Didn’t he use the word paraphrase earlier?
Q In short, you have used and paraphrased whole passages from Plato in your play Once at Antietam?
A Yes, that’s . . .
Q In other words we are talking about very substantial similarities are we not?
A Yes. You see I . . .
Q In other words, these are not the sort of similarities that you agreed earlier can occur without copying, that may be plain coincidence so to speak, when the idea being expressed is common property as it were?
A Well not when the, I mean what I think I said was up to a point when what’s being said is, when the idea and the expression are bound up together and the . . .
Q Let me get back to this essentially simple question. You see no harm in deliberately borrowing, to put a charitable face on it, in deliberately borrowing entire passages from the work of Plato and inserting them, with slight alterations, in work which you represent as your own. Is that correct?
A Yes and if you’ll just let me explain, I . . .
Q Please take your time. We’re in no hurry here.
A Because in the first place I obviously expected people to recognize these passages, these pieces of Socratic dialogue, any civilized person would recognize them from the Republic. It’s all simply, it was all simply meant as a kind of homage, that’s obvious isn’t it?
Q Please let me ask the questions. When you say any civilized person, are we back to that somewhat narrow, rather exclusive audience envisioned in connection with your play’s title’s slightly remote echo of Shakespeare?
A I answered that didn’t I? That he played to both the stalls and the pits?
Q We are speaking now of Plato. Are you saying, then, that this very broad audience, which you have characterized as the pits, would be expected to recognize these random passages from his Republic?
&
nbsp; A It doesn’t matter, no. No not the specific passages but it doesn’t matter, that’s the . . .
Q Not the specific passages then, but the approach, the Socratic method as it’s known. What Dale Carnegie called the ‘Yes yes’ response?
A Who?
Q Dale Carnegie, the author of How to Win Friends and Influence People.
A God! Yes, speaking of the pits but that’s the point, it doesn’t matter. They don’t have to know it’s the Republic, they may never have heard of Plato but they’re carried along by it, by the dialogue, by the wit and the timeliness of it, and the timelessness of it. That’s the greatness of Plato, finding a wider audience, that’s the point. That’s what I mean by homage.
Q You speak of the wit and timeliness of these dialogues, and you agreed earlier that the characters in a play are in fact largely defined by their dialogue, is that correct?
A Yes.
Q And in light of what might be called popularizing the work of Plato, would it be fair to infer that the character named Kane in your play is to a large degree based on Socrates?
A It’s obvious, yes.
Q As portrayed by Plato? Or the historical figure, which?
A Well, well both, I mean Plato’s version is about all that we really have, isn’t it.
Q Which was simply there for the taking, like Caesar in Plutarch?
A Well not really no, because . . .
Q Because we agreed that the idea and its expression are different things, did we not?
A Yes but . . .
Q The difference between Shakespeare’s King Lear and one by Joe Blow, is that correct?
A All right, yes, but . . .
Q And Joe Blow’s version would differ substantially from yours? In the sense that we wouldn’t see you writing ‘Does it pain dreadfully? You poor darling . . . ’ Is that correct?
A Yes, but I . . .
Q And in the passage from Plato we just looked at, you wouldn’t be found using a word like sillybillies, would you?
A No but neither would Plato, that . . .
MR. BASIE: I object.
MR. MADHAR PAI: You are interrupting the witness.
MR. BASIE: That’s the basis of my objection.
MR. MADHAR PAI: Are you objecting for form?
MR. BASIE: Yes.
MR. MADHAR PAI: For the record?
MR. BASIE: For the record.
MR. MADHAR PAI: All right. Let’s move on. Read it back, please.
MR. BASIE: Now wait a minute.
MR. MADHAR PAI: Why should we wait a minute? Read it back.
MR. BASIE: I haven’t finished. Why do you want it read back? He answered your question.
MR. MADHAR PAI: Then why are you interrupting?
MR. BASIE: Because I have an objection.
MR. MADHAR PAI: Would you like to state your objection?
MR. BASIE: You are badgering the witness by interrupting him before he can complete his answers.
MR. MADHAR PAI: I believe it was you who interrupted the witness.
MR. BASIE: I have a right to object when the witness is being baited by this pattern of repeated interruptions.
MR. MADHAR PAI: And I repeat, sir, the record will show it was you who interrupted the witness. Please read it back.
(Record is read.)
Q We stated earlier, did we not, that anyone is free to take an idea and express it in whatever . . .
MR. BASIE: I haven’t finished.
MR. MADHAR PAI: I simply cannot put up with this, Harold. I’ve tried to conduct this procedure as expeditiously as possible in deference to your wishes regarding the condition of the witness. I’ve been trying to speed things up by shutting off these irrelevancies and digressions but you seem bound on prolonging things with your ceaseless interruptions and it’s most unprofessional.
MR. BASIE: I think the record will show that the entire course of the questioning has turned into a digression.
MR. MADHAR PAI: I don’t know what you’re talking about.
MR. BASIE: What I’m talking about is how we got off here into Plato, whether any passage in the play might have been borrowed from Plato is relevant to this infringement action where even just suppose Plato had a copyright, it would have expired before the birth of Jesus in any case.
MR. MADHAR PAI: I cannot resist the temptation to digress here for a moment myself, Mr. Basie, because it may be instructive and even of some later use to you in what you are pleased to call your career. I have never looked into the status of copyright agreements in fifth century Athens, which I agree would be quite remote from our present purposes. We are citing passages from the English translation of Plato’s Republic by Benjamin Jowett copyrighted just a century ago by the Macmillan Company, renewed by Oxford University Press in nineteen twenty, and you may pursue it down to the present day as you see fit.
MR. BASIE: Well shit.
MR. MADHAR PAI: Shall we move
on?
Q We stated earlier, did we not, that anyone is free to take an idea and express it in his own fashion, hence sillybillies might be called Jowett’s expression of a detail of Plato’s expression of a detail of the idea under discussion, would you agree?
A Yes, all right.
Q In this vein do you recall making the distinction between protection for the expression and for the idea unless the idea is copied in a vulgar and demeaning way, when it becomes an abuse?
A Yes.
Q I am directing the witness’s attention to Defendants’ Exhibit 29. Will you read it please?
(Document marked Defendants’ Exhibit 29 for identification as of this date.)
A Starting where, ‘as he was sitting among them . . . ’
Q To yourself please.
A I’ve read it.
Q Will you identify it for the record?
A Of course, yes. Yes, it’s the story Glaucon tells of the shepherd Gyges in the second book of the Republic.
Q And?
A Well he’s obviously, Gyges is obviously a rather low ignorant type who stumbles on a dead body in some pretty bizarre circumstances, he takes a gold ring off the dead man’s finger and by accident discovers it can make him invisible, and it goes on from there to describe his adventures, his rise to power using this new, this stratagem.
Q And is Plato just telling us a story here? A sort of Arabian Nights Entertainment?
A Of course not, no. He’s placing the perfectly unjust man beside the just man in his nobleness and simplicity as Aeschylus says wishing to be and not to seem good. That’s Plato quoting Aeschylus and I’m quoting Plato, what’s the difference?
Q The difference is exactly why we’re here. Plato attributes the idea and the words to Aeschylus whom he names, whereas you have simply lifted them from Plato without ascribing them to anyone the way you’ve done elsewhere I might add, Camus and Rousseau and I don’t know who else, now may we get on with this? Glaucon’s story is employed as an expression of this idea, is that correct?
A In expressing it, yes.
Q But you are not claiming property rights in an idea then, are you?
A In certain ideas yes, when I’m talking about ideas I’m talking about art.
Q Let’s take that out. We’re talking about an actual thing.
A I’m talking about work, you can’t divide a work of art, the idea from the technique that expresses it.
Q Well that’s exactly what you’re going to have to do in a court of law. The idea is an abstract form and that’s not what we’re here to talk about. We’re here to talk about your play and I direct your attention to Defendants’ Exhibit 30. Will you identify it please?
(Document marked Defendants’ Exhibit 30 for identification as of this date.)
A It’s, yes it’s from the second act of my play, the third scene. It’s a dialogue between Mr. Kane and a character named Bagby. Mr. Bagby.
Q I would like it read into the record please.
BAGBY
And why not? An’t they close enough to doing
it now? And do you think they keep from injustice by preference, then?
KANE
(VEHEMENTLY)
I do!
BAGBY
Ah . . . ! And that they practice justice willingly? No, only let both of them do what they like, and you will catch your just man in the act. It’s only the law that keeps him to fair dealing.
KANE
The law . . .
BAGBY
Yes and what is the law but a thing got up by them that fear suffering injustice, and not them that fear doing it. No, I heard a story told once of a man that found a gold ring upon a dead body, and as he wore it one evening with friends he happened to turn it upon his finger, as nervous people may do. And no sooner had he done this, than he was invisible, and his friends spoke of him as if he was gone. He found that when he turned it outward he was visible again, and turned inward no one could see him. So he got a job as the king’s messenger, and with this new dodge of his he soon humped the king’s wife, and before you know it he’d killed the king and seized the empire . . . There, with a ring such as that, now, who could keep from taking what he liked wherever he found it, walking into anyone’s house and humping whoever he found there, and setting free from prison any man he might choose . . . Why, with two such rings, for your just man and the unjust, you could not tell them apart . . .
Q There is no question here of a passage from Plato being copied into your own work in slightly altered form, is that correct?
A Yes, the . . .
Q And as a result of these alterations, the idea has been copied in a vulgar and demeaning way, do you agree?
MR. BASIE: Wait, I’m sorry, but . . .
MR. MADHAR PAI: Do you have an objection?
MR. BASIE: Yes.
MR. MADHAR PAI: I won’t have any more of this, Harold. You have made your objection and I am going to proceed with this examination.
Q Do you, or do you not, find the term humping a crude and vulgar term to denote sexual activity?
A I, yes that’s what I . . .
Q I’d like you to simply answer my questions without these rambling digressions. In the passage from Plato which we have just reviewed, the translator has employed such phrases as he seduced the queen, and lie with anyone at his pleasure, to convey these activities, am I correct?