Was "Frozen" Permissible Borrowing?

An article posted yesterday on JoeGratz.net really has me thinking. I posted a comment on Copyfutures tonight noting briefly the ethical rationale for the Bridgeport decision, and then I came across this article: Something Borrowed, written by Malcolm Gladwell. It has really got me (re)thinking my feelings on artistic plagiarism.

Something Borrowed tells the story of someone whose life’s works had been ripped from them and been plastered on the Broadway stage. Dorothy Lewis was a psychiatrist who worked for over 25 years studying and producing research on the behavioral patterns of serial killers. Based on her experiences with the likes of Ted Bundy, Ms. Lewis produced a memoir entitled, “Guilty by Reason of Insanity.” What Ms. Lewis didn’t realize was that Frozen, a hit Broadway play, was based in large part on her life and that the play ripped words, phrases, and ideas from her life and her book. Ms. Lewis reveals in the article:

“I was sitting at home reading the play, and I realized that it was I. I felt robbed and violated in some peculiar way. It was as if someone had stolen—I don’t believe in the soul, but, if there was such a thing, it was as if someone had stolen my essence.”

In 1997 Malcolm Gladwell wrote a profile on Dorothy Lewis for The New Yorker entitled “Damaged”. Mr. Gladwell reveals that his piece was taken verbatim without permission, and that it too constitutes a large part of Frozen. 

At first Mr. Gladwell reacted in a way that I believe most people would react. He wrote Byrony Lavery, the playwright of Frozen a letter condemning her actions. His letter stated:

“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.”

However, Mr. Gladwell reveals that once he let it soak in he really didn’t feel as though he had been robbed, in fact he says he felt that borrowings were a “compliment.” Ms. Lewis however, had a different and wholly understandable take on her portrayal by Byrony Lavery in Frozen. She felt the playwright took artistic freedoms to an unethical level, not only portraying Ms. Lewis’ life without her permission, but portraying her life in a way out of touch with the real Dorothy Lewis. Ms. Lewis felt Frozen was slanderous.

Part of the reason the article struck me so strongly is that I believe Mr. Gladwell started off thinking of “borrowing” the same way that I do – it’s theft. As he states in the beginning of his article, “Words belong to the person who wrote them. There are few simpler ethical notions than this one…” To read about the transitional process he has undergone to come to the point where he is now is very enlightening. Mr. Gladwell puts his newfound understanding this way…

“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.”

Something Borrowed is a well written piece on the evolution of one man’s thoughts on plagiarism. Mr. Gladwell still observes that protection is necessary in some instances (i.e. derivative works) and notes that he and people like Lawrence Lessig still recognize that fact and instead seek a more balanced approach:

“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.”

I agree with Mr. Gladwell that a line must be articulated b/w the extremist position of protection under all circumstances and the copyfighter position of unlimited freedoms. However, I do not agree that a fixed line in the copyright scheme frees Frozen and its playwright to lift verbatim the words and works of another without their permission. Bridgeport v. Dimension Films, is a decision which applies logical reasoning to an issue related to that in Something Borrowed (for the bigger picture of Bridgeport see my earlier posting on Copyfutures).

Bridgeport answered the question (music context), “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The 6^th Circuit’s “emphatic” answer was no - that under 17 U.S.C. §114(b) the copyright owner has the exclusive right to sample his own work. The rationale to their “get a license or do not sample” rule is three fold: (1) ease of enforcement, (2) no matter the size of the taking there is value associated, and (3) sampling is “never” (never is poor word choice) accidental (Mr. Gladwell acknowledges that Byrony Lavery’s taking wasn’t accidental). I do not believe that Bridgeport is exactly analogous to the issue in Frozen but it does shed light on where to draw the line in terms of “borrowing.” In my opinion Mr. Gladwell takes the high road in this case and sees the bright side of the taking, but that does not mean that Ms. Lewis is not entitled to feel differently. In fact it seems that the Bridgeport rationale wholly supports the position of Ms. Lewis.

Ed Felton has posted a reaction to Something Borrowed on his blog Freedom to Tinker. He makes the case that plagiarism is fundamentally different than copyright. He says that we should recognize that Mr. Gladwell as correctly seperating the questions over copyright law from the issues related to plagiarism. Moreover he seems to imply that our copyright obsessions are in part to blame for Ms. Lewis' reaction to Frozen. Perhaps then I too have become "infected", but it seems a bit harsh to characterize Ms. Lewis' reaction as anything but rationale under the circumstances. The law of Bridgeport and other copyright cases may not necessarily fit under these circumstances but it seems to me that the rationale certainly does.

Mr. Gladwell makes the case that more times than we can possibly recognize, we have benefited from the kind of de minimis sampling that was condemned in Bridgeport and on that point while I do not believe sampling is a permissible fair use, I think he is certainly correct. However, claiming that the “borrowings” in Frozen are “transformative” and therefore permissible rather than “derivative” and therefore a case of infringement is a poor application of the clear line that Mr. Gladwell attempts to articulate. His decision to allow Frozen to use verbatim paragraphs is a choice he made personally and does not seem to reflect the law. Were we to adopt Mr. Gladwell's thinking in this "transformative" situation I believe it would only muddy up the decision in Bridgeport and create a slippery slope in terms of permissible sampling (again not entirely analogous to the situation in Frozen).

Because she seems to have truly and honestly intended to do nothing but create art, one can certainly sympathize with Byrony Lavery over the character assassinations that have been brought upon her as a result of Frozen. Dorothy Lewis must be thought of as well in this case. It’s easy just to say “what harm did Frozen do to her” but the fact is Ms. Lewis had an ethical (and legal it seems) right which was violated. Not only were her words/works taken from her verbatim, but apparently those same words were manipulated in order to paint her in a totally disrespectful and altogether unnecessary way.

At its core, Something Borrowed is a persuasive eye-opener that makes a good case (better than Wilco or Downhill Battle) for the proposition that the “theft” of one man’s words may not be that bad after all. But being not that bad or even being good under the circumstances does not make “borrowing” right.

Comments

[Ed Felten]

You refer to my blog discussion of this topic, and my claim that the intellectual framework of copyright law has infected our thinking about plagiarism. When I said that, I didn't mean to imply that Lewis's complaints were unjustified or reflected sloppy copyright-centric thinking. I should have said more clearly that that portion of my discussion was meant to refer to other people who argued that the play's borrowing from Gladwell was improper.

I agree that Lewis's complaints seem to belong in a category other than copyright or plagiarism.