What the Dog Saw

“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.”

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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 expose 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 could 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.

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.