Lewis never did the talk-back. She hired a lawyer. And she came down from New Haven to see Frozen. “In my book,” she said, “I talk about where I rush out of the house with my black carry-on, and I have two black pocketbooks, and the play opens with her” — Agnetha — “with one big black bag and a carry-on, rushing out to do a lecture.” Lewis had written about biting her sister on the stomach as a child. Onstage, Agnetha fantasized out loud about attacking a stewardess on an airplane and “biting out her throat.” After the play was over, the cast came onstage and took questions from the audience. “Somebody in the audience said, ‘Where did Bryony Lavery get the idea for the psychiatrist?’ ” Lewis recounted. “And one of the cast members, the male lead, said, ‘Oh, she said that she read it in an English medical magazine.’ ” Lewis is a tiny woman, with enormous, childlike eyes, and they were wide open now with the memory. “I wouldn’t have cared if she did a play about a shrink who’s interested in the frontal lobe and the limbic system. That’s out there to do. I see things week after week on television, on Law & Order or C.S.I., and I see that they are using material that Jonathan and I brought to light. And it’s wonderful. That would have been acceptable. But she did more than that. She took things about my own life, and that is the part that made me feel violated.”
At the request of her lawyer, Lewis sat down and made up a chart detailing what she felt were the questionable parts of Lavery’s play. The chart was fifteen pages long. The first part was devoted to thematic similarities between Frozen and Lewis’s book Guilty by Reason of Insanity. The other, more damning section listed twelve instances of almost verbatim similarities — totaling perhaps 675 words — between passages from Frozen and passages from a 1997 magazine profile of Lewis. The profile was called “Damaged.” It appeared in the February 24, 1997, issue of The New Yorker. It was written by me.
2.
Words belong to the person who wrote them. There are few simpler ethical notions than this one, particularly as society directs more and more energy and resources toward the creation of intellectual property. In the past thirty years, copyright laws have been strengthened. Courts have become more willing to grant intellectual-property protections. Fighting piracy has become an obsession with Hollywood and the recording industry, and, in the worlds of academia and publishing, plagiarism has gone from being bad literary manners to something much closer to a crime. When, two years ago, Doris Kearns Goodwin was found to have lifted passages from several other historians, she was asked to resign from the board of the Pulitzer Prize committee. And why not? If she had robbed a bank, she would have been fired the next day.
I’d worked on “Damaged” through the fall of 1996. I would visit Dorothy Lewis in her office at Bellevue Hospital and watch the videotapes of her interviews with serial killers. At one point, I met up with her in Missouri. Lewis was testifying at the trial of Joseph Franklin, who claims responsibility for shooting, among others, the civil-rights leader Vernon Jordan and the pornographer Larry Flynt. In the trial, a videotape was shown of an interview that Franklin once gave to a television station. He was asked whether he felt any remorse. I wrote:
“I can’t say that I do,” he said. He paused again, then added, “The only thing I’m sorry about is that it’s not legal.”
“What’s not legal?”
Franklin answered as if he’d been asked the time of day: “Killing Jews.”
That exchange, almost to the word, was reproduced in Frozen.
Lewis, the article continued, didn’t feel that Franklin was fully responsible for his actions. She viewed him as a victim of neurological dysfunction and childhood physical abuse. “The difference between a crime of evil and a crime of illness,” I wrote, “is the difference between a sin and a symptom.” That line was in Frozen, too — not once but twice. I faxed Bryony Lavery a letter:
I am happy to be the source of inspiration for other writers, and had you asked for my permission to quote — even liberally — from my piece, I would have been delighted to oblige. But to lift material, without my approval, is theft.
Almost as soon as I’d sent the letter, though, I began to have second thoughts. The truth was that, although I said I’d been robbed, I didn’t feel that way. Nor did I feel particularly angry. One of the first things I had said to a friend after hearing about the echoes of my article in Frozen was that this was the only way I was ever going to get to Broadway — and I was only half joking. On some level, I considered Lavery’s borrowing to be a compliment. A savvier writer would have changed all those references to Lewis, and rewritten the quotes from me, so that their origin was no longer recognizable. But how would I have been better off if Lavery had disguised the source of her inspiration?
Dorothy Lewis, for her part, was understandably upset. She was considering a lawsuit. And, to increase her odds of success, she asked me to assign her the copyright to my article. I agreed, but then I changed my mind. Lewis had told me that she “wanted her life back.” Yet in order to get her life back, it appeared, she first had to acquire it from me. That seemed a little strange.
Then I got a copy of the script for Frozen. I found it breathtaking. I realize that this isn’t supposed to be a relevant consideration. And yet it was: instead of feeling that my words had been taken from me, I felt that they had become part of some grander cause. In late September, the story broke. The Times, the Observer in England, and the Associated Press all ran stories about Lavery’s alleged plagiarism, and the articles were picked up by newspapers around the world. Bryony Lavery had seen one of my articles, responded to what she read, and used it as she constructed a work of art. And now her reputation was in tatters. Something about that didn’t seem right.
3.
In 1992, the Beastie Boys released a song called “Pass the Mic,” which begins with a six-second sample taken from the 1976 composition “Choir” by the jazz flutist James Newton. The sample was an exercise in what is called multiphonics, where the flutist “overblows” into the instrument while simultaneously singing in a falsetto. In the case of “Choir,” Newton played a C on the flute, then sang C, D-flat, C — and the distortion of the overblown C combined with his vocalizing created a surprisingly complex and haunting sound. In “Pass the Mic,” the Beastie Boys repeated the Newton sample more than forty times. The effect was riveting.
In the world of music, copyrighted works fall into two categories — the recorded performance and the composition underlying that performance. If you write a rap song, and you want to sample the chorus from Billy Joel’s “Piano Man,” you have to first get permission from the record label to use the “Piano Man” recording, and then get permission from Billy Joel (or whoever owns his music) to use the underlying composition. In the case of “Pass the Mic,” the Beastie Boys got the first kind of permission — the rights to use the recording of “Choir” — but not the second. Newton sued, and he lost — and the reason he lost serves as a useful introduction to how to think about intellectual property.
At issue in the case wasn’t the distinctiveness of Newton’s performance. The Beastie Boys, everyone agreed, had properly licensed Newton’s performance when they paid the copyright recording fee. And there was no question about whether they had copied the underlying music to the sample. At issue was simply whether the Beastie Boys were required to ask for that secondary permission: was the composition underneath those six seconds so distinctive and original that Newton could be said to own it? The court said that it wasn’t.
The chief expert witness for the Beastie Boys in the “Choir” case was Lawrence Ferrara, who is a professor of music at New York University, and when I asked him to explain the court’s ruling, he walked over to the piano in the corner of his office and played those three notes: C, D-flat, C. “That’s it!” he shouted. “There ain’t nothing else! That’s what was used. You know what this is? It’s no more than a mordent, a turn. It’s been done thousands upon thousands of times. No one can say they own that.”
Ferrara then pla
yed the most famous four-note sequence in classical music, the opening of Beethoven’s Fifth: G, G, G, E-flat. This was unmistakably Beethoven. But was it original? “That’s a harder case,” Ferrara said. “Actually, though, other composers wrote that. Beethoven himself wrote that in a piano sonata, and you can find figures like that in composers who predate Beethoven. It’s one thing if you’re talking about da-da-da dummm, da-da-da dummm — those notes, with those durations. But just the four pitches, G, G, G, E-flat? Nobody owns those.”
Ferrara once served as an expert witness for Andrew Lloyd Webber, who was being sued by Ray Repp, a composer of Catholic folk music. Repp said that the opening few bars of Lloyd Webber’s 1984 “Phantom Song,” from The Phantom of the Opera, bore an overwhelming resemblance to his composition “Till You,” written six years earlier, in 1978. As Ferrara told the story, he sat down at the piano again and played the beginning of both songs, one after the other; sure enough, they sounded strikingly similar. “Here’s Lloyd Webber,” he said, calling out each note as he played it. “Here’s Repp. Same sequence. The only difference is that Andrew writes a perfect fourth and Repp writes a sixth.”
But Ferrara wasn’t quite finished. “I said, let me have everything Andrew Lloyd Webber wrote prior to 1978 — Jesus Christ Superstar, Joseph, Evita.” He combed through every score, and in Joseph and the Amazing Technicolor Dreamcoat he found what he was looking for. “It’s the song ‘Benjamin Calypso.’ ” Ferrara started playing it. It was immediately familiar. “It’s the first phrase of ‘Phantom Song.’ It’s even using the same notes. But wait — it gets better. Here’s ‘Close Every Door,’ from a 1969 concert performance of Joseph.” Ferrara is a dapper, animated man, with a thin, well-manicured mustache, and thinking about the Lloyd Webber case was almost enough to make him jump up and down. He began to play again. It was the second phrase of “Phantom.” “The first half of ‘Phantom’ is in ‘Benjamin Calypso.’ The second half is in ‘Close Every Door.’ They are identical. On the button. In the case of the first theme, in fact, ‘Benjamin Calypso’ is closer to the first half of the theme at issue than the plaintiff’s song. Lloyd Webber writes something in 1984, and he borrows from himself.”
In the “Choir” case, the Beastie Boys’ copying didn’t amount to theft because it was too trivial. In the “Phantom” case, what Lloyd Webber was alleged to have copied didn’t amount to theft because the material in question wasn’t original to his accuser. Under copyright law, what matters is not that you copied someone else’s work. What matters is what you copied, and how much you copied. Intellectual-property doctrine isn’t a straightforward application of the ethical principle “Thou shalt not steal.” At its core is the notion that there are certain situations where you can steal. The protections of copyright, for instance, are time-limited; once something passes into the public domain, anyone can copy it without restriction. Or suppose that you invented a cure for breast cancer in your basement lab. Any patent you received would protect your intellectual property for twenty years, but after that anyone could take your invention. You get an initial monopoly on your creation because we want to provide economic incentives for people to invent things like cancer drugs. But everyone gets to steal your breast-cancer cure — after a decent interval — because it is also in society’s interest to let as many people as possible copy your invention; only then can others learn from it, and build on it, and come up with better and cheaper alternatives. This balance between the protecting and the limiting of intellectual property is, in fact, enshrined in the Constitution: “Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited” — note that specification, limited — “Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
4.
So is it true that words belong to the person who wrote them, just as other kinds of property belong to their owners? Actually, no. As the Stanford law professor Lawrence Lessig argues in his book Free Culture:
In ordinary language, to call a copyright a “property” right is a bit misleading, for the property of copyright is an odd kind of property.…I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don’t have it. But what am I taking when I take the good idea you had to put a picnic table in the backyard — by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing that I am taking then?
The point is not just about the thingness of picnic tables versus ideas, though that is an important difference. The point instead is that in the ordinary case — indeed, in practically every case except for a narrow range of exceptions — ideas released to the world are free. I don’t take anything from you when I copy the way you dress — though I might seem weird if I do it every day.…Instead, as Thomas Jefferson said (and this is especially true when I copy the way someone dresses), “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”
Lessig argues that, when it comes to drawing this line between private interests and public interests in intellectual property, the courts and Congress have, in recent years, swung much too far in the direction of private interests. He writes, for instance, about the fight by some developing countries to get access to inexpensive versions of Western drugs through what is called parallel importation — buying drugs from another developing country that has been licensed to produce patented medicines. The move would save countless lives. But it has been opposed by the United States not on the ground that it would cut into the profits of Western pharmaceutical companies (they don’t sell that many patented drugs in developing countries anyway) but on the ground that it violates the sanctity of intellectual property. “We as a culture have lost this sense of balance,” Lessig writes. “A certain property fundamentalism, having no connection to our tradition, now reigns in this culture.”
Even what Lessig decries as intellectual-property extremism, however, acknowledges that intellectual property has its limits. The United States didn’t say that developing countries could never get access to cheap versions of American drugs. It said only that they would have to wait until the patents on those drugs expired. The arguments that Lessig has with the hard-core proponents of intellectual property are almost all arguments about where and when the line should be drawn between the right to copy and the right to protection from copying, not whether a line should be drawn.
But plagiarism is different, and that’s what’s so strange about it. The ethical rules that govern when it’s acceptable for one writer to copy another are even more extreme than the most extreme position of the intellectual-property crowd: when it comes to literature, we have somehow decided that copying is never acceptable. Not long ago, the Harvard law professor Laurence Tribe was accused of lifting material from the historian Henry Abraham for his 1985 book, God Save This Honorable Court. What did the charge amount to? In an exposé that appeared in the conservative publication The Weekly Standard, Joseph Bottum produced a number of examples of close paraphrasing, but his smoking gun was this one borrowed sentence: “Taft publicly pronounced Pitney to be a ‘weak member’ of the Court to whom he could not assign cases.” That’s it. Nineteen words.
Not long after I learned about Frozen, I went to see a friend of mine who works in the music industry. We sat in his living room on the Upper East Side, facing each other in easy chairs, as he worked his way through a mountain of CDs. He played “Angel,” by the reggae singer Shaggy, and then “The Joker,” by the Steve Miller Band, and told me to listen very carefully to the similarity in bass lines. He played Led Zeppelin’s “Whole Lotta Love” and then Muddy Waters’s “You Need Love,” to show the extent to which Led Zeppelin had mined the blues for inspiration. He played “Twice My Age,” by Shabba Ranks and Krystal, and then the saccharine ’70s pop standard “Seasons in the Sun,” until I cou
ld hear the echoes of the second song in the first. He played “Last Christmas,” by Wham! followed by Barry Manilow’s “Can’t Smile Without You” to explain why Manilow might have been startled when he first heard that song, and then “Joanna,” by Kool and the Gang, because, in a different way, “Last Christmas” was an homage to Kool and the Gang as well. “That sound you hear in Nirvana,” my friend said at one point, “that soft and then loud kind of exploding thing, a lot of that was inspired by the Pixies. Yet Kurt Cobain” — Nirvana’s lead singer and songwriter — “was such a genius that he managed to make it his own. And ‘Smells Like Teen Spirit’?” — here he was referring to perhaps the best-known Nirvana song. “That’s Boston’s ‘More Than a Feeling.’ ” He began to hum the riff of the Boston hit, and said, “The first time I heard ‘Teen Spirit,’ I said, ‘That guitar lick is from “More Than a Feeling.” ’ But it was different — it was urgent and brilliant and new.”
He played another CD. It was Rod Stewart’s “Do Ya Think I’m Sexy,” a huge hit from the 1970s. The chorus has a distinctive, catchy hook — the kind of tune that millions of Americans probably hummed in the shower the year it came out. Then he put on “Taj Mahal,” by the Brazilian artist Jorge Ben Jor, which was recorded several years before the Rod Stewart song. In his twenties, my friend was a DJ at various downtown clubs, and at some point he’d become interested in world music. “I caught it back then,” he said. A small, sly smile spread across his face. The opening bars of “Taj Mahal” were very South American, a world away from what we had just listened to. And then I heard it. It was so obvious and unambiguous that I laughed out loud; virtually note for note, it was the hook from “Do Ya Think I’m Sexy.” It was possible that Rod Stewart had independently come up with that riff, because resemblance is not proof of influence. It was also possible that he’d been in Brazil, listened to some local music, and liked what he heard.