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. But 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
