As my colleague Jason Sanford has narrated, the University of Georgia Press recently recalled Brad Vice’s recently-published Flannery O’Connor Award-winning volume The Bear Bryant Funeral Train with the intention of pulping it. The Press stripped him of his award and declared “no future editions are planned.”
What started all this?
As the Tuscaloosa News reported, a readers’ adviser at the Tuscaloosa Public Library, reading Vice’s story “Tuscaloosa Knights,” “heard echoes from one of her favorite books,” namely Carl Carmer’s 1934 book Stars Fell On Alabama.
The reader, who (according to the Tuscaloosa News article) believed she was the first to hear an echo of Carmer in Vice’s story, began comparing the two texts and then prepared a small dossier marking the similarities between Vice’s story and a chapter in Carmer’s book. She sent this dossier to the University of Georgia Press and as well to the University of Alabama Press, which has published the most recent edition of Stars Fell on Alabama.
Daniel J.J. Ross, of the University of Alabama Press, wrote: “This seems a flagrant case, intentional and indefensible, with the feeble efforts to alter the original all the more blatant evidence of unacknowledged borrowing” (from the Tuscaloosa News).
And you already know what UGA Press has decided.
I have been — as a reader, as a writer, as an editor, and as a publisher — troubled by the immediacy of the assumption that Vice committed plagiarism, rather than some artistic quotation or allusion or some other form of appropriative artisanship, and by the willingness of many of the principals in the exchange to damn Vice for what they see as fraud and theft.
When I first read Vice’s story — he sent it to me and to Jim Murphy so we could reprint it at Thicket, the site we’ve dedicated to Alabama writing — I heard the echoes of Carmer right away, and I thought Vice had done a smart thing. He had written his story right on top of Carmer’s, set his own characters in the very Tuscaloosa Carmer described among the very Klan that disgusted Carmer. It seemed to me a clear case of allusion.
And necessary allusion. For the echoes allow Vice to perform two difficult but important things.
The first is to suggest that Alabama, culturally, isn’t all that different from the Alabama Carmer described. The more exactly Vice quotes Carmer’s situation and the more exactly Vice evokes Carmer’s Tuscaloosa, the more powerful is the comparison. That comparison both forces us to consider our cultural critically, which is continuously necessary, and very quickly establishes the environment for the real drama of the story, which invites us to consider how this environment conditions our love — what and whom we love, when and where and how we can love. We need to feel that the terror incited by the Klan, the same Klan, is the same terror Carmer felt, so that the climactic scene of Vice’s story is one of terror.
The second is to connect not only the world within the story to the world within Carmer’s memoir but as well to connect Vice’s own writing, his act, with Carmer’s. And this connection seems to me the more valuable and essential. In connecting himself to Carmer, Vice enters and expands the too-small sphere of Alabama’s literary inheritance (where is our Faulkner, our Welty, our Williams?) and invites us to consider that inheritance not as something that is past and locked away but as something that is living and extensible. If we see Vice’s Pinion as a version of Carmer’s own guide, then we will understand Vice as an extension of Carmer and this Alabama as not so divorced from that one. Vice’s story argues for the essentiality of Carmer’s work by making Carmer’s work essential to his own, and in doing so makes Alabama a larger place.
One may protest that by failing to announce this connection more explicitly Vice has unwittingly admitted intent to deceive, but I believe that such a protest misunderstands Vice’s text, fails to consider the necessary conditions for the kind of allusion I seek to describe here and, at the same time, undervalues Carmer’s work by requiring it to behave in a very specific way.
To make the case for intentional, deceptive plagiarism, one must say that Vice’s intention is to hide from us the inspiring and well-quoted source, must say that Vice assumes we will not (could not) make the connection between his work and Carmer’s. It assumes that Vice’s quotation is meant not to evoke Carmer’s text but to pillage and thereby erase it. But it seems difficult, at least for this reader, to imagine that one could read — and I mean really read — Vice’s story or Vice’s collection without considering it as an act of Alabama literature, which would necessitate at some point a consideration of Carmer’s Stars Fell On Alabama, one of the few outstanding works of classic Alabama literature. And it’s hard to imagine that, with Carmer’s work in mind, we could read Vice’s work without hearing the quotations and without understanding them as such and without understanding the quotations not as a simple homage to a segment of another work of Alabama literature but as well as an appropriately rich response to a work that is itself so heavily invested in quotation, taking its name from a popular jazz tune and frequently quoting real people in the course of its narrative.
This is to say that the quotations are themselves acknowledgments of borrowing and that the act of quotation is in some measure suggested by the source text here.
Vice has, in interviews, explicitly acknowledged his debt to Carmer. And in allowing us to reprint “Tuscaloosa Knights” at Thicket alongside a selection from Carmer’s own “Flaming Cross,” Vice implicitly acknowledges the relationship, allows the evidence to be made public, and is interested in his readers entering the intertextual space in which he has worked.
This is not an author with anything to hide.
To have been more explicit within the story itself, Vice would have had to have included an epigraph from Carmer’s work or perhaps named Carmer, but such a gesture diminishes the allusion, which works when the reader makes the connection the author has already made. The joy of allusion lies in the reader’s arrival at that place already inhabited by the author, a place in which reader and writer come to be in profound sympathy with one another. To force this arrival, as an author, is to mistrust the reader. To provide the evidence but leave the connection to be completed is not only to trust the reader but to depend on her.
Which makes the Tuscaloosa readers’ adviser’s reaction all the more disappointing. Except for her assumption that this borrowing was deceptive, she was the ideal reader, able to hear the echoes and identify them.
Some, who don’t feel that this is intentional and deceptive plagiarism, argue that this is a case of “unacknowledged borrowing” and that this is a violation of copyright law, a charge Vice has countered by asserting that he thought his use of this material was within the bounds of “fair use.”
Perusing the resources on fair use, it’s easy to see how Vice could have come to such a conclusion. The Stanford University Libraries digest of copyright law states that “In its most general sense, a fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose such as to comment upon, criticize or parody a copyrighted work.” If Vice views his work as a comment on Carmer’s or even as a transformation of it, though Vice does not mean to parody the work exactly, it would seem that he has worked within the spirit of the law, at least as it is presented here.
Of course, the issue of fair use is more complicated. According to the Stanford University Libraries digest (and to other widely available sources, including the Tuscaloosa News), judges of copyright suits use four factors to determine whether or not a use if fair use:
- the purpose and character of use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken
- the effect of the use upon the potential market
I’ve already discussed the “purpose and character” of Vice’s use of Carmer’s work (which will still, of course, be up for debate). But these other factors, which have been only partially addressed, also have a serious bearing on any determination of copyright violation.
What of the nature of the copyrighted work?
Interestingly, copyright law digests (such as the one provided by Stanford I am using as a reference throughout this post) state that if the source work in question is a factual work the borrowing may be more excusable, since the spread of information is essential to ongoing dialogue. Purely fictional works (because they are not factual or do contain facts?) are more heavily protected.
So, we have to ask whether Carmer’s work is a fictional work or a factual work and whether the determination of the nature of the source work makes a different here. Though written with a literary flair, Stars Fell on Alabama is essentially a memoir, if we can take seriously the “Author’s Note” that opens the book. There Carmer declares that:
All of the events related in this book happened substantially as I have recorded them. It has been necessary in a few instances to disguise characters to avoid causing them serious embarassment (for instance my hosts during the lynching). I have also taken the liberty of telescoping time occasionally—since I have attempted to select significant occurrences which took place over a span of a half-dozen years.
While Carmer’s note only confuses the question of its kind for me, these statements do encourage our understanding of Stars Fell on Alabama as truthful and as factual, more or less. And that determination supports Vice’s claim that Carmer’s work was a historical source he used to create the Tuscaloosa for his story.
But it’s the third question about the “amount and substantiality of the portion taken” that has received the most attention.
In explaining its decision to recall the book and strip Vice of his award, the University of Georgia Press stated that Vice’s work “borrowed heavily” from Carmer’s book.
Certainly, Vice borrowed from the work. But did he borrow “heavily”? It depends on what you consider to be borrowed. If we’re talking about exact quotations of lines and phrases, it’s obvious, but the amount of material that’s adapted isn’t a significant portion of either work. If we’re talking situations and ideas, it’s a much larger proportion of each. Is it substantial? As a proportion of Carmer’s work, the material in question (most broadly construed), though well-known, is miniscule: we’re talking about four pages of material in a 300-page work. As a proportion of Vice’s work, we’re talking (again broadly construing “material”) about maybe five of fourteen pages (depending on which edition you’re considering).
Maybe this is enough for most people. But the copyright law digests state that those borrowing for purposes of parody — and I would consider that the kind of allusive updating I’ve considered the story to be is akin to parody in that it builds itself on the other work, even if the purpose isn’t a humorous one — may borrow much more than is normally acceptable, “even the heart of the original work, in order to conjure up the original work.”
Quoting from Justice Souter’s remarks in Campbell v. Acuff Rose Music, Inc may be interesting here:
the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work.
Finally, what was the “effect of the use upon the potential market”?
Carmer’s work was a best-seller in 1935. But judging from the difficulty of finding the title on the University of Alabama Press’s website, it’s not a top-priority title. My guess is that the two- to three-dozen sentences from Carmer’s work that appear, often altered, in Vice’s work, does not constitute the kind of reproduction that will substantially diminish demand for Carmer’s work. This isn’t the kind of sidewalk-table DVD that sells for a fifth of the cost of the real deal.
If anything, I would think that Vice’s quotation would potentially increase interest in Carmer’s book (which is a great book everyone should own). Maybe the University of Alabama lost their licensing fee which, from my guess based on my own permission-seeking, would be well less than the $950 someone is asking on Amazon today for a single copy of Vice’s book.
If none of this actually clarifies what it was Vice did or intended to do or what the University of Georgia Press or the University of Alabama Press thought it was that Vice did, it does suggest how complicated the issue is. I feel certain I’ve gotten something wrong in the law, but I’ve done the best an intelligent, well-educated person could do without a lawyer, which I hope suggests something of how Vice himself might have worked though the issue.
I would think that the University of Georgia Press would have been aware of the quotations — one presumes they’re careful and also well-educated and well-read and would, as the sponsors of the premiere award for Southern literary fiction, be cognizant of Southern literary history to a degree that would render Carmer’s text familiar and readily accessible — and would have had the legal resources to make the proper reckoning.
In my own experiences as an author over the last few years, I have found, however, that even the most prestigious presses, like Routledge (which published my work The Architecture of Address) like to put the burden of the legal work on their authors or their production staff, people who can do no better than to read the laws they can find.
Vice might have been left with this burden. I don’t know. He might have, as I did, gone looking for a copyright registration for Carmer’s text in the United States copyright database and might have, as I did, found nothing.
I don’t have all the facts, but I do know that there may be a defense of Vice’s quotation, contra the official response from the University of Alabama Press.
Perhaps Vice has not borrowed in accordance with fair use. But if he thought others would know, would hear, would understand, I don’t understand how anyone can accuse him of intentional and deceptive plagiarism unless we treat texts solely as properties and do not consider their cultural place or value.
The University of Georgia Press has had its troubles this year, accused of corruption in its poetry contests (a dialogue instigated by the folks at Foetry and that resulted, at least in part, in Bin Ramke’s resignation as series editor), and some bloggers are already making the connection. And maybe this has had some bearing on their reaction to the recent accusations.
As of this writing, I haven’t received the copy of The Bear Bryant Funeral Train I ordered, and I suspect I won’t see it any time soon, but I do hope to read it at some point soon, even if I have to read it in manuscript. I continue to think that Vice’s writing is not only good but smart and brave as well.
I’m especially sorry to see an Alabama author treated so harshly before a thorough analysis of the facts has been made, and I can only hope, as an Alabama author with a first literary work freshly out, that this is not a sign of how hospitable things are in our beautiful, tangled state.
COMMENTS
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Well put. Well put. I didn’t get a chance to read this book but after reading Cramer’s story and Brad’s story online I totally agree with what you are saying here. Hope Brad can move past this betrayal.
This is an interesting species of spin, but it won’t hold. There is no precedent whatsoever for stealing copyrighted material and using it word-for-word in one’s own work. That is a violation of copyright law. Besides, you are forgetting that the real victim in this disaster is not Brad Vice, but Carl Carmer.
Mr. Carmer is not here to stand up for himself, so others will have to do it for him. It’s impossible to imagine that he or any other writer would be pleased to have work stolen by Vice or anyone else. My first inclination would be to physically attack anyone who stole whole paragraphs from my work. If I were Mr. Carmer, I would take immediate legal action against Mr. Vice.
Mr. Carmer is of course deceased. That is one of the most heinous aspects of this deed, as it means that Mr. Vice is not only a thief, but a grave robber. To say that stealing from a person’s grave is just another way of placing a wreath upon that grave requires a very twisted thinking process, both logically and morally.
It’s like saying that the way to honor the labor of African Americans is to enslave them and to steal their labor from them. The notion that it is honorable to steal from people who are not in a position to defend themselves appears to be a particularly Southern idea.
I understand the need for white Southerners like Mr. Vice to write about the Ku Klux Klan and the South’s vicious and genocidal history of racism. Certainly there is an enormous amount of historical and cultural guilt for white Southerners to expiate. The Klan march that Mr. Carmer wrote about was a real event, an event that no writer owns, and therefore any writer is free to write about it. But that writer must choose his own words. Those are the rules.
The law states that the cut-off date is 1923. Writers are free to steal the phraseology–even entire texts–of any work published before that date. This is a federal law. True, white Southerners have a long history of ignoring and violating federal law, making up excuses for why it should be “nullified,” ranging from the South Carolina Nullification Act to secession to Jim Crow laws to Wallace standing in the schoolhouse door to the illegal placement of the Ten Commandments on state property to Jake Adam York’s justification for stealing KKK stories from the dead.
What we need is a literary William Tecumseh Sherman to ride down there with a few thousand good men and make sure you boys play clean. No wonder those folks in Georgia were so quick to rescind Vice’s Flannery O’Connor award–they were quick to attempt to squelch this embarrassment before the story hit the Northern press and Yankees felt the righteous need to “come on down heah and interfere”–the traditional fear of white Southerners.
It’s too late of course. This story will not limit itself to the Alabama, Mississippi, and Georgia papers that have run it. The Chronicle of Higher Education, a Yankee paper, has run the story, and other Yankee papers will follow. I ought to know. I write for Yankee papers and have already contacted The Editors. Vice’s volley against the Fort Sumter of Literary Ethics must not go unanswered.
I do find it odd that you keep repeating how well-known Carmer’s work is, yet nobody I know has heard of it. Okay, I admit it: I’m a Yank.
So it’s an Alabama thing — but if it’s so well-known in your region of the United States why didn’t the (b)editors(/b) of Mr. Vice’s book notice the purloined passages?
I must say, the lengths you seem to be going to defend his actions strike me as bizarre. There is simply no justification for what he did! There is no way you can convince me that Mr. Vice was acting under less than scrupulous principles to include Mr. Carmer’s passages in his story and claim them as his own, without the slightest acknowledgment of the source (until after it was exposed). How many chances did he have to correct it, or at the very least, mitigate the offense by acknowledging the source in manuscript before the book was printed?
It’s all very fishy, but with friends (or supporters, as you say you don’t know him) like you, maybe Mr. Vice will squeak by this and continue to teach his students that it’s okay to fudge the law once in a while.
As a longtime friend of Brad Vice and also as a longtime admirer of his writing, I’d like to try to fill in some of the gaps in these perspectives. I’ve known the work and the man for years, and I completely agree with the editor that the spirit in which he utilizes the Carmer material is indeed “transformative,” not intended to “supersede […] the original.”
Brad and I were trained in a climate — aesthetic, academic and otherwise — that encouraged relentless interrogation and appropriation of received forms in the name of art. Eighty years and more past “Make it New,” the literary climate of our times demanded conscious, problematized employments of the “Old” if we were to engage any culture in any shape whatsoever.
While postmodern play is a part of this dynamic, we are not so playfully naive as to think a sheet and a burning cross may be thrown into a short story without absolute attentiveness to the moral implications and responsibilities involved, including the very means by which others, like Carl Carmer, have engaged this history.
Viewed in this light, the way “Tuscaloosa Knights” invokes Carmer — virtually as strands in its own aesthetic DNA — is clearly the highest homage, transforming Carmer’s code into a vigorously self-conscious postmodern fiction that is Brad Vice’s alone. Without Carmer’s informing presence, the story wouldn’t possess the same gravity nor resonance that it does. And to think that Brad Vice, who was born and raised in Tuscaloosa County, would attempt to “pass off” Carmer’s work as his own, in an attempt to “supersede” STARS FELL ON ALABAMA, perhaps the most famous book ever written about the state, is, in my opinion, a gross miscalculation.
In fact, I think it’s dangerous and irresponsible to approach these matters with such cavalier insensitivity to context. Any reflective reader with a whit of knowledge about the source material would recognize the acknowledgment that is in fact paid from the very title of Brad’s story onward.
If Brad Vice has made a mistake, it was in not anticipating the ways in which his nuanced homage to Carmer might be misread. And that, as we all know, is far beyond any author’s ken.
Well said, Jim. From my perspective, the very title “Tuscaloosa Knights” seems acknowledgment enough. At least to any moderately refined sensibility.
I’m reluctant to get into this too heavily, but as one who has written fairly extensively on this subject, I have to say Mr. Young is right, and there’s little argument about it. How you can say Vice “forgot” to acknowledge the earlier work is beyond me, but whether he acknowledged it or not, he’s in violation of copyright law. The “fair use” provision normally applies either to use in reviews or newspaper comment or to educational purposes. This clearly wasn’t Vice’s intention in using the material in question. He may not have been dishonest, that is, he may well have assumed that others knew what he was doing, that his story was, in filmmakers’ terms an homage, to Carmer, but that doesn’t matter. He was wrong and Georgia was right, though if they had been so inclined they could of course have saved the day by acknowledging the earlier work and publishing the book anyway.
There is a dimension beyond the question of whether this is plagiarism in the strict legal definition (which I think it is). That is, even if the original work were in the public domain, I believe it would still be a clear case of plagiarism from the literary perspective. When I think of texts that imaginatively transform other texts and are not plagiarisms, a large category of works, I think several criteria must be met.
1) Clarity of reference. It must be obvious to everyone that something was taken from somewhere else. Quotation marks for direct quotations, etc…
2) In the absence of such clarity, the source text must be so obvious that nobody would miss it. A rewriting of Little Red Riding Hood, for example.
3) In some cases, metafictional markers that indicate there are two levels of discourse serve this purpose. Clear markers of parody are also indications of transformative impulses. You can’t simply add scenes or characters to an existing framework. That, to my mind, is not enough.
There are so many ways that Vice could have marked the relation, so many possible combinations of of epigraphs, creative use of typography, or explanatory notes, that the failure to do so is quite outrageous. I can’t believe you folks are defending him.
[…] this is a fascinating discussion, and I hope you won’t mind my offering a different perspective. My reading of recent Supreme Court cases dealing with state sovereign immunity under the Eleventh Amendment (cases that began with Seminole Tribe of Florida v. Florida in 1996 and through Alden v. Maine, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, and others decided by the 5-4 conservative majority) tells me that the University of Georgia Press could NOT be sued for copyright infringement.
The case on point is Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000), in which Judge Edith Jones’ opinion held that under the Supreme Court precedents, Arte Publico, a press at the University of Houston, a state actor, could not be sued for copyright infringement because of the Eleventh Amendment. This decision overturned the Copyright Remedy Clarification Act, designed to give plaintiffs the right to sue states for copyright infringement, as an impoper exercise of Congressional power. While Jones suggested there might be remedies in state court, it’s clear that Congress and federal courts have almost always rejected the idea of granting state courts concurrent jurisdiction over copyright cases because they believed this would undermine the uniformity of copyright law.
So the irony is that there almost certainly be no liability on the University of Georgia Press’s part, no matter if one of its authors had taken an entire copyrighted novel and published it under the author’s own name.
I’ve noticed that the debate here and elsewhere has been led mostly by members or insiders of the writing establishment. I speak here as a reader, someone who enjoys reading good books, who strives to read the best of literature.
One speaks of the difference between imitation and inspiration. If an author copies, and copies badly, I believe there can be little value in the resulting work. If, however, an author presents elements in a new context – as has been done by Mr. Vice – a completely new vision can arise out of the synthesis. My view is that the question of plagiarism cannot be decided on a black and white basis. Each case has to be evaluated individually by people who are willing and able to judge a work as a whole, and not superficially, based on isolated passages. Unfortunately, interpretations offer no absolutes. The final judgement will always be subjective.
Speaking of time machines, I suppose I am old-fashioned. I possess a sense of judgement that is perhaps a snapshot of the 1980’s zeitgeist of America, as that is the time I left America and moved to Europe. I did not live through the years when fair-mindedness, arguing both sides, innocent until proven guilty, and giving the benefit of the doubt became so unfashionable. I look at public life in America as it has become today and think it is ugly. Trivialities have become more important than the “big picture.” When I first heard about what happened to Mr. Vice, my sense of justice was greatly offended. I felt the outrage of a reader denied a good book to read, and indignation at an innocent error destroying a career.
I have looked for and found clear, consistent and compelling arguments presented at StorySouth and elsewhere defending Mr. Vice. And I have seen the arguments the other side presented, or rather what passes as argument. It has included dogmatic assertions that all copying is wrong, thereby sidestepping the issue of analyzing the resulting work altogether. It has perhaps presented the relevant passages side-by-side, out of context. The presenters seem to say: well, yes, the story would have been great, had Mr. Carmer’s name stood in the footnote, but it doesn’t, so: bad story. Verdict: nail the man, destroy his career, see that he never publishes a book or wins a prize again. These sentiments ignore the idea that a work stands for itself. Knowing the background of a work can add to it, but an author cannot depend on this. I usually skip the footnotes and the forewords that try to explain to me what I am about to read. I often know very little about the personal or public lives of the authors I read.
I do think that Mr. Vice has done himself a disservice in giving only implicite acknowledgement to Carmer (through the title), because a reading of his story with explicite knowledge of the allusions adds immensely to the power of the work. I get a sense of the message of hate and how it has remained unchanged throughout the decades. It is a chilling, almost surrealistic feeling of time standing still, though time has passed. This is a theme one encounters in masterpieces such as Rod Serling’s Twilight Zone episode “He’s Alive”, in which a phantom Hitler visits the present to impart upon another his eternal message of hate. In this case it is Hitler’s image that is the allusion establishing continuity with the past. That in itself was remarkable for the Twilight Zone series as it seldom made direct references to actual personalities. On a meta-level I think this is analogous to what Mr. Vice intended with his displacement of Carmer’s passages.
I would like to add a few positive words for Mr. Young, who seems concerned that his works could be plagiarized. I can assure you that you have nothing to fear in this respect from me, because based on the humanity you present here, your invocation of stereotypes, irrelevant insinuations as to the motives of Mr. York in his presentation of a clear and well-founded argument, accusations of racism and spin, the apparent glee or schadenfreude that drips from your remarks about the possible revocation of Mr. Vice’s doctorate (“kissing his doctorate good-bye”), etc., etc., I find nothing that makes me imagine I would ever read one of your works or that they might be worthy of copying or in a position to inspire me. Furthermore, I do wonder about your motives in commenting here. Your tone comes across as aggressive, hateful and vindictive, elements which my old-fashioned sense tells me have no place in an intelligent dialogue. Incidentally, if it pleases you to qualify what I am saying, I happen to be a “Northerner.” But that should be irrelevant here.
A final word: In living overseas I have found myself drawn closer to classic American literature. Perhaps this is a search for my own identity as an American. I don’t know. But I find myself reading authors like Mark Twain, Edgar Allen Poe, Will Rogers, John Steinbeck, James Thurber, Jack Kerouac, and others. At the same time I know very little about contemporary American literature, though based on the discussion and on the reviews I’ve read, I find that “The Bear Bryant Funeral Train” is a work I wish to read, although how that will now come to pass, I do not know. Furthermore, I feel a strong desire to discover Carmer’s work “Stars Fell on Alabama” which, from the description, sounds to me like a classic work of Southern and of American literature.
[…] Fair use is a gray area, like it or not.
I confess that I like it. In fact, I think it’s vital to the continued health of artistic enterprises. We seem to be missing the entire point of copyright in the first place: to enable creative people to enrich culture.
There has been a great deal of discussion around concepts like “transformative use” in intellectual property circles. One that seems particularly relevant to this situation can be found in “Copyright, Fair Use, and Transformative Critical Appropriation”, which includes the following:
Building on expanded readings of earlier scholarly work and case law, we
suggest that fair use must be understood to make deliberate room for transformative
appropriation of copyrighted work whenever the appropriation and transformation are
necessary steps toward the realization of significant social criticism.
I’ll let lawyers argue the merits of the paper, but it reminds me of the original principles of copyright and fair use, and the larger goals at issue. Vice does seem to have “significant social criticism” in mind with his story.
Ultimately, I think the question of his violation of copyright is murky, given the conflicting nature of court rulings on just such issues. But if The Wind Done Gone is permissible, Vice had every expectation that his own work would be similarly received. I think he acted in good faith on copyright.
A separate issue is whether he committed plagiarism. Some of the posts I’ve seen appear to conflate the two. Here, too, the actuality is gray. If Vice were writing a scholarly essay (which is where most discussions of plagiarism arise), the expectations for scholarly discourse mean that uncredited borrowing is a serious offense. If he were to publish a 20 page scholarly paper and in the process heavily use four pages from Bloom’s Anxiety of Influence, that would be wrong, because academics are expected to express their own ideas, and to appropriately cite the various borrowings that led them to those ideas. There’s a whole architecture of citation that fills handbooks, different ones for each field. While Vice is an academic, in that he works for a university, he is also, however, a writer.
In the field of writing, it is expected that you don’t pass someone else’s work off as your own: no swiping your workshop-mate’s story, pasting your own name on it, and mailing it off to the New Yorker. But one’s relationship to previously published work is somewhat different. It is expected that you engage with the history of the field. That engagement has often included borrowing, as Jonathan Mayhew notes above. Unless a work is deeply postmodern, there’s no room to insert citations, and that doesn’t seem to be the tone of this work. In particular, often the nature of transforming another text requires subtlety for its effect; the reader at some point goes “Wait. That sounds like… Holy crap! He’s just folded over seventy five years of history, and things haven’t changed all that much!”
I agree that there were a number of ways Vice could have acknowledged the debt. I’m not an expert in the field of Southern/Alabaman writing, but I gather that Carmer’s work is a classic in that field. The clear allusion of the title seems to be just such an acknowledgement. If we failed to get that as readers (I did initially), is the fault Vice’s or ours? A note somethere in the introduction to the collection, or an afterword would be a better way to handle this situation.
Was Vice trying to pass Carmer’s work off as his own because he was too lazy to describe the scene? His descriptive talents seem elsewhere up to the task. Was he simply so unfamiliar with Klan rallies that he stole Carmer’s words to cover his ignorance? Again, that seems unlikely. There’s a whole host of history and memoir that would have served the turn. I have a hard time seeing the choice as anything but artistic, given the role of Carmer’s text in Alabaman literature, Vice’s own relationship to the place, and the deliberate allusion of the title.
Would I land like a velociraptor on such plagiarism in a student’s paper? You bet. In a student’s short story? I’d give him or her the advice I gave above: acknowledge it somewhere, just to be safe, because you can’t rely on your audience getting it.
Vice is, of course, not a student: he is a professional and should have handled this better. But I think, given the haziness of these issues, that it’s not inconceivable to defend him. The consequences here are dire: the loss of an important award, the loss of an entire book, and perhaps the loss of his job.
In a larger sense, a further consequence is the creeping strict construction of copyright that serves corporate interests at the expense of public good, increasing to such a state that we no longer truly own the creative products we buy, but merely lease the rights to their use. That must be resisted, or copyright will become the enemy of the needs and principles that created it in the first place.
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