What the Dog Saw: And Other Adventures

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.

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