My friend had hundreds of these examples. We could have sat in his living room playing at musical genealogy for hours. Did the examples upset him? Of course not, because he knew enough about music to know that these patterns of influence — cribbing, tweaking, transforming — were at the very heart of the creative process. True, copying could go too far. There were times when one artist was simply replicating the work of another, and to let that pass inhibited true creativity. But it was equally dangerous to be overly vigilant in policing creative expression, because if Led Zeppelin hadn’t been free to mine the blues for inspiration, we wouldn’t have got “Whole Lotta Love,” and if Kurt Cobain couldn’t listen to “More Than a Feeling” and pick out and transform the part he really liked, we wouldn’t have “Smells Like Teen Spirit” — and, in the evolution of rock, “Smells Like Teen Spirit” was a real step forward from “More Than a Feeling.” A successful music executive has to understand the distinction between borrowing that is transformative and borrowing that is merely derivative, and that distinction, I realized, was what was missing from the discussion of Bryony Lavery’s borrowings. Yes, she had copied my work. But no one was asking why she had copied it, or what she had copied, or whether her copying served some larger purpose.
5.
Bryony Lavery came to see me in early October of that year. It was a beautiful Saturday afternoon, and we met at my apartment. She is in her fifties, with short, tousled blond hair and pale blue eyes, and was wearing jeans and a loose green shirt and clogs. There was something rugged and raw about her. In the Times the previous day, the theater critic Ben Brantley had not been kind to her new play, Last Easter. This was supposed to be her moment of triumph. Frozen had been nominated for a Tony. Last Easter had opened Off Broadway. And now? She sat down heavily at my kitchen table. “I’ve had the absolute gamut of emotions,” she said, playing nervously with her hands as she spoke, as if she needed a cigarette. “I think when one’s working, one works between absolute confidence and absolute doubt, and I got a huge dollop of each. I was terribly confident that I could write well after Frozen, and then this opened a chasm of doubt.” She looked up at me. “I’m terribly sorry,” she said.
Lavery began to explain: “What happens when I write is that I find that I’m somehow zoning in on a number of things. I find that I’ve cut things out of newspapers because the story or something in them is interesting to me, and seems to me to have a place onstage. Then it starts coagulating. It’s like the soup starts thickening. And then a story, which is also a structure, starts emerging. I’d been reading thrillers like The Silence of the Lambs, about fiendishly clever serial killers. I’d also seen a documentary of the victims of the Yorkshire killers, Myra Hindley and Ian Brady, who were called the Moors Murderers. They spirited away several children. It seemed to me that killing somehow wasn’t fiendishly clever. It was the opposite of clever. It was as banal and stupid and destructive as it could be. There are these interviews with the survivors, and what struck me was that they appeared to be frozen in time. And one of them said, ‘If that man was out now, I’m a forgiving man but I couldn’t forgive him. I’d kill him.’ That’s in Frozen. I was thinking about that. Then my mother went into hospital for a very simple operation, and the surgeon punctured her womb, and therefore her intestine, and she got peritonitis and died.”
When Lavery started talking about her mother, she stopped, and had to collect herself. “She was seventy-four, and what occurred to me is that I utterly forgave him. I thought it was an honest mistake. I’m very sorry it happened to my mother, but it’s an honest mistake.” Lavery’s feelings confused her, though, because she could think of people in her own life whom she had held grudges against for years, for the most trivial of reasons. “In a lot of ways, Frozen was an attempt to understand the nature of forgiveness,” she said.
Lavery settled, in the end, on a play with three characters. The first is a serial killer named Ralph who kidnaps and murders a young girl. The second is the murdered girl’s mother, Nancy. The third is a psychiatrist from New York, Agnetha, who goes to England to examine Ralph. In the course of the play, the three lives slowly intersect — and the characters gradually change and become “unfrozen” as they come to terms with the idea of forgiveness. For the character of Ralph, Lavery says that she drew on a book about a serial killer titled The Murder of Childhood, by Ray Wyre and Tim Tate. For the character of Nancy, she drew on an article written in the Guardian by a woman named Marian Partington, whose sister had been murdered by the serial killers Frederick and Rosemary West. And, for the character of Agnetha, Lavery drew on a reprint of my article that she had read in a British publication. “I wanted a scientist who would understand,” Lavery said — a scientist who could explain how it was possible to forgive a man who had killed your daughter, who could explain that a serial killing was not a crime of evil but a crime of illness. “I wanted it to be accurate,” she added.
So why didn’t she credit me and Lewis? How could she have been so meticulous about accuracy but not about attribution? Lavery didn’t have an answer. “I thought it was OK to use it,” she said with an embarrassed shrug. “It never occurred to me to ask you. I thought it was news.”
She was aware of how hopelessly inadequate that sounded, and when she went on to say that my article had been in a big folder of source material that she had used in the writing of the play, and that the folder had got lost during the play’s initial run, in Birmingham, she was aware of how inadequate that sounded, too.
But then Lavery began to talk about Marian Partington, her other important inspiration, and her story became more complicated. While she was writing Frozen, Lavery said, she wrote to Partington to inform her of how much she was relying on Partington’s experiences. And when Frozen opened in London, she and Partington met and talked. In reading through articles on Lavery in the British press, I found this, from the Guardian two years ago, long before the accusations of plagiarism surfaced:
Lavery is aware of the debt she owes to Partington’s writing and is eager to acknowledge it. “I always mention it, because I am aware of the enormous debt that I owe to the generosity of Marian Partington’s piece.…You have to be hugely careful when writing something like this, because it touches on people’s shattered lives and you wouldn’t want them to come across it unawares.”
Lavery wasn’t indifferent to other people’s intellectual property, then; she was just indifferent to my intellectual property. That’s because, in her eyes, what she took from me was different. It was, as she put it, “news.” She copied my description of Dorothy Lewis’s collaborator, Jonathan Pincus, conducting a neurological examination. She copied the description of the disruptive neurological effects of prolonged periods of high stress. She copied my transcription of the television interview with Franklin. She reproduced a quote that I had taken from a study of abused children, and she copied a quotation from Lewis on the nature of evil. She didn’t copy my musings, or conclusions, or structure. She lifted sentences like “It is the function of the cortex — and, in particular, those parts of the cortex beneath the forehead, known as the frontal lobes — to modify the impulses that surge up from within the brain, to provide judgment, to organize behavior and decision-making, to learn and adhere to rules of everyday life.” It is difficult to have pride of authorship in a sentence like that. My guess is that it’s a reworked version of something I read in a textbook. Lavery knew that failing to credit Partington would have been wrong. Borrowing the personal story of a woman whose sister was murdered by a serial killer matters because that story has real emotional value to its owner. As Lavery put it, it touches on someone’s shattered life. Are boilerplate descriptions of physiological functions in the same league?
It also matters how Lavery chose to use my words. Borrowing crosses the line when it is used for a derivative work. It’s one thing if you’re writing a history of the Kennedys, like Doris Kearns Goodwin, and borrow, without attribution, from another history of the Kennedys. Bu
t Lavery wasn’t writing another profile of Dorothy Lewis. She was writing a play about something entirely new — about what would happen if a mother met the man who killed her daughter. And she used my descriptions of Lewis’s work and the outline of Lewis’s life as a building block in making that confrontation plausible. Isn’t that the way creativity is supposed to work? Old words in the service of a new idea aren’t the problem. What inhibits creativity is new words in the service of an old idea.
And this is the second problem with plagiarism. It is not merely extremist. It has also become disconnected from the broader question of what does and does not inhibit creativity. We accept the right of one writer to engage in a full-scale knockoff of another — think how many serial- killer novels have been cloned from The Silence of the Lambs. Yet, when Kathy Acker incorporated parts of a Harold Robbins sex scene verbatim in a satiric novel, she was denounced as a plagiarist (and threatened with a lawsuit). When I worked at a newspaper, we were routinely dispatched to “match” a story from the Times: to do a new version of someone else’s idea. But had we “matched” any of the Times’ words — even the most banal of phrases — it could have been a firing offense. The ethics of plagiarism have turned into the narcissism of small differences: because journalism cannot own up to its heavily derivative nature, it must enforce originality on the level of the sentence.
Dorothy Lewis says that one of the things that hurt her most about Frozen was that Agnetha turns out to have had an affair with her collaborator, David Nabkus. Lewis feared that people would think she had had an affair with her collaborator, Jonathan Pincus. “That’s slander,” Lewis told me. “I’m recognizable in that. Enough people have called me and said, ‘Dorothy, it’s about you,’ and if everything up to that point is true, then the affair becomes true in the mind. So that is another reason that I feel violated. If you are going to take the life of somebody, and make them absolutely identifiable, you don’t create an affair, and you certainly don’t have that as a climax of the play.”
It is easy to understand how shocking it must have been for Lewis to sit in the audience and see her “character” admit to that indiscretion. But the truth is that Lavery has every right to create an affair for Agnetha, because Agnetha is not Dorothy Lewis. She is a fictional character, drawn from Lewis’s life but endowed with a completely imaginary set of circumstances and actions. In real life, Lewis kissed Ted Bundy on the cheek, and in some versions of Frozen, Agnetha kisses Ralph. But Lewis kissed Bundy only because he kissed her first, and there’s a big difference between responding to a kiss from a killer and initiating one. When we first see Agnetha, she’s rushing out of the house and thinking murderous thoughts on the airplane. Dorothy Lewis also charges out of her house and thinks murderous thoughts. But the dramatic function of that scene is to make us think, in that moment, that Agnetha is crazy. And the one inescapable fact about Lewis is that she is not crazy: she has helped get people to rethink their notions of criminality because of her unshakable command of herself and her work. Lewis is upset not just about how Lavery copied her life story, in other words, but about how Lavery changed her life story. She’s not merely upset about plagiarism. She’s upset about art — about the use of old words in the service of a new idea — and her feelings are perfectly understandable, because the alterations of art can be every bit as unsettling and hurtful as the thievery of plagiarism. It’s just that art is not a breach of ethics.
When I read the original reviews of Frozen, I noticed that time and again critics would use, without attribution, some version of the sentence “The difference between a crime of evil and a crime of illness is the difference between a sin and a symptom.” That’s my phrase, of course. I wrote it. Lavery borrowed it from me, and now the critics were borrowing it from her. The plagiarist was being plagiarized. In this case, there is no “art” defense: nothing new was being done with that line. And this was not “news.” Yet do I really own “sins and symptoms”? There is a quote by Gandhi, it turns out, using the same two words, and I’m sure that if I were to plow through the body of English literature I would find the path littered with crimes of evil and crimes of illness. The central fact about the “Phantom” case is that Ray Repp, if he was borrowing from Andrew Lloyd Webber, certainly didn’t realize it, and Andrew Lloyd Webber didn’t realize that he was borrowing from himself. Creative property, Lessig reminds us, has many lives — the newspaper arrives at our door, it becomes part of the archive of human knowledge, then it wraps fish. And, by the time ideas pass into their third and fourth lives, we lose track of where they came from, and we lose control of where they are going. The final dishonesty of the plagiarism fundamentalists is to encourage us to pretend that these chains of influence and evolution do not exist, and that a writer’s words have a virgin birth and an eternal life. I suppose that I could get upset about what happened to my words. I could also simply acknowledge that I had a good, long ride with that line — and let it go.
“It’s been absolutely bloody, really, because it attacks my own notion of my character,” Lavery said, sitting at my kitchen table. A bouquet of flowers she had brought were on the counter behind her. “It feels absolutely terrible. I’ve had to go through the pain for being careless. I’d like to repair what happened, and I don’t know how to do that. I just didn’t think I was doing the wrong thing… and then the article comes out in the New York Times and every continent in the world.” There was a long silence. She was heartbroken. But, more than that, she was confused, because she didn’t understand how 675 rather ordinary words could bring the walls tumbling down. “It’s been horrible and bloody.” She began to cry. “I’m still composting what happened. It will be for a purpose… whatever that purpose is.”
November 22, 2004
Connecting the Dots
THE PARADOXES OF INTELLIGENCE REFORM
1.
In the fall of 1973, the Syrian army began to gather a large number of tanks, artillery batteries, and infantry along its border with Israel. Simultaneously, to the south, the Egyptian army canceled all leaves, called up thousands of reservists, and launched a massive military exercise, building roads and preparing anti-aircraft and artillery positions along the Suez Canal. On October 4, an Israeli aerial reconnaissance mission showed that the Egyptians had moved artillery into offensive positions. That evening, Aman, the Israeli military intelligence agency, learned that portions of the Soviet fleet near Port Said and Alexandria had set sail, and that the Soviet government had begun airlifting the families of Soviet advisers out of Cairo and Damascus. Then, at four o’clock in the morning on October 6, Israel’s director of military intelligence received an urgent telephone call from one of the country’s most trusted intelligence sources. Egypt and Syria, the source said, would attack later that day. Top Israeli officials immediately called a meeting. Was war imminent? The head of Aman, Major General Eli Zeira, looked over the evidence and said he didn’t think so. He was wrong. That afternoon, Syria attacked from the east, overwhelming the thin Israeli defenses in the Golan Heights, and Egypt attacked from the south, bombing Israeli positions and sending eight thousand infantry streaming across the Suez. Despite all the warnings of the previous weeks, Israeli officials were caught by surprise. Why couldn’t they connect the dots?
If you start on the afternoon of October 6 and work backward, the trail of clues pointing to an attack seems obvious; you’d have to conclude that something was badly wrong with the Israeli intelligence service. On the other hand, if you start several years before the Yom Kippur War and work forward, re-creating what people in Israeli intelligence knew in the same order that they knew it, a very different picture emerges. In the fall of 1973, Egypt and Syria certainly looked as if they were preparing to go to war. But, in the Middle East of the time, countries always looked as if they were going to war. In the fall of 1971, for instance, both Egypt’s president and its minister of war stated publicly that the hour of battle was approaching. The Egyptian army was mobilized. Tanks and bridging e
quipment were sent to the canal. Offensive positions were readied. And nothing happened. In December of 1972, the Egyptians mobilized again. The army furiously built fortifications along the canal. A reliable source told Israeli intelligence that an attack was imminent. Nothing happened. In the spring of 1973, the president of Egypt told Newsweek that everything in his country “is now being mobilized in earnest for the resumption of battle.” Egyptian forces were moved closer to the canal. Extensive fortifications were built along the Suez. Blood donors were rounded up. Civil-defense personnel were mobilized. Blackouts were imposed throughout Egypt. A trusted source told Israeli intelligence that an attack was imminent. It didn’t come. Between January and October of 1973, the Egyptian army mobilized nineteen times without going to war. The Israeli government couldn’t mobilize its army every time its neighbors threatened war. Israel is a small country with a citizen army. Mobilization was disruptive and expensive, and the Israeli government was acutely aware that if its army was mobilized and Egypt and Syria weren’t serious about war, the very act of mobilization might cause them to become serious about war.
Nor did the other signs seem remarkable. The fact that the Soviet families had been sent home could have signified nothing more than a falling-out between the Arab states and Moscow. Yes, a trusted source called at four in the morning, with definite word of a late-afternoon attack, but his last two attack warnings had been wrong. What’s more, the source said that the attack would come at sunset, and an attack so late in the day wouldn’t leave enough time for opening air strikes. Israeli intelligence didn’t see the pattern of Arab intentions, in other words, because, until Egypt and Syria actually attacked, on the afternoon of October 6, 1973, their intentions didn’t form a pattern. They formed a Rorschach blot. What is clear in hindsight is rarely clear before the fact. It’s an obvious point, but one that nonetheless bears repeating, particularly when we’re in the midst of assigning blame for the surprise attack of September 11.