"Chick Lit" and Originality

The scandal about Harvard co-ed Kaavya Viswanathan may have blown over, but I am still thinking about it.  What does it mean for copyright protection specifically and cultural production generally when it is illegal to “internalize” one’s favorite books and (giving Viswanathan the benefit of the doubt) in good faith write one’s own book with some clear similarities?  Those who think that the six-or-so passages in the book “How Opal Mehta Got Kissed, Got Wild, and Got a Life” are just too similar not to be intentionally copied from Megan McCafferty’s book “Sloppy Firsts” will argue that Viswanathan does not deserve copyright protection, as the expression is not original to her.  But I do wonder about what this originality requirement means in a day when we understand our knowledge (and our creative sources) to be generated in substantial part from the world around us. Isn’t most creative expression by some large measure a rehashed version of some “internalized” expression of another? Is the difference that what was “internalized” here was someone else’s copyrighted material?

Some parts of copyright law (albeit for different reasons) actually recognize the unprotectability of those mother narratives that we’ve all internalized, consider the scenes-a-faire doctrine and the restriction on copyrighting folk lore.  When I compare the paragraphs in the two books side-by-side, I admit, I am a bit dubious as to the plausibility that Viswanathan was an innocent infringer.  But it is certainly possible that an avid reader of “chick lit” – and Viswanathan said she was more than avid, but devoted, even obsessed – would memorize passages, recite them aloud, much like teenagers do with music lyrics.  Years later, when she is honing her own writerly skills, it is possible – isn’t it? – that those beloved phrases are somewhere deep in her unconscious, that they are part of her in some real way?  Who is to say, at that point, that the expression doesn’t originate with her?  In other words, at what point do the narratives we live (for Viswanathan, the “chick lit” of her youth) become part of our identity such that we are entitled to express it, even publish it?

Comments

[Eh Nonymous]

I'm dubious.

Lines by numerous authors have become "part of me" - I have trouble explaining certain concepts, evoking certain imagery, without quoting key words, or even extended phrases (as long as a dozen words) verbatim. Sometimes I'm not aware of it. If I were prevented from _speaking_ these phrases, enjoined, let's say, it would be a serious restraint on me.

But if I were to write a book incorporating these phrases, and it was obvious that I had access to the previous stuff, at some point it's just not fair to use.

And these aren't necessarily meaningful strings of exposition and dialogue. These are extended, banal, utterly unnecessary thefts, amounting in some cases to large chunks of scene. In some cases, the theft looks like someone copied and pasted the scene, changed every noun to a comparable but different noun, and hoped nobody would notice.

This isn't like pouring out your soul. It's like trying to doctor the Encylopedia Britannica entry so it looks like you did your homework.

This is all in response, really, to "who is to say the expression didn't originate with her?" - because, you can look at the context, look at what was taken, and say "me."

[D]

This post seems a little silly now--the idea that Kaavya could possibly have "internalized" and accidentally plagiarized FIVE (the official count is at least that high) books is absurd.

See:

http://www.thecrimson.com/article.aspx?ref=513204

http://harvardindependent.com/ViewArticle.aspx?ArticleID=9964

[Guest]

She was what, 17? 15 or 16 when she read the materials she incorporated? 40-year-olds are (generally) much too self-conscious and unreceptive to blur the boundaries betweeen memory, incorporation, and emulation. Children and teenagers are not, especially not very very bright and creative children. Her age makes a *huge* difference in this case. We're talking about a child here, basically. In my view, this situation has almost nothing to do with typical copyright infringement. This is a 1) very young person, at 2) Harvard (!), being offered 3) tens of thousands of dollars (!)[etc.]. Her circumstances could not be much less typical, making this a classic hard case from which only bad generalizations can be drawn. Just my two cents.

[jsilbey]

I gather that the reason the publisher pulled the book and isn't rereleasing it is evidence of their agreement with the first two posts above. I tend to agree with the third post that this case seems different than when an established historian, for example, plagiarizes sources asserting an authoritative analysis or rendition of past events. And, while this may not be the best example of the dynamic I am interested in -- the "originality" requirement in copyright as it relates to what I gather we understand to be our relationship to popular culture -- it still resonates with me as intriguing. We inevitably internalize phrases, sayings, even verses from consumption of popular culture. We repeat them over and over, they become mantras, millions of teenagers speak them to each other as a way of communicating. Typically, the "unprotected" verses are folk lore. But what of more contemporary "folk culture?" When do these phrases, sayings and verses become sufficiently imprinted -- generic even -- that they are no longer protectable expression? This is an issue for copyright as well as trademark, and it seems the protectionist copyrighters (and trademark holders) want desperately to maintain what I think is a line that is less than clear.

[Frank]

i love the post and the last comment. someone might say that all this dreck is so trashy and frivolous that it doesn't even merit the protection of the law. or, on the other hand, that it is so essential to the communicative abilities of a linguistically impoverished societal subgroup that no one should be able to own it. whichever stance leads to the gradual decline of the relevant basilect may be preferable.

[bjr]

I don’t think that’s the point of either the original post or the comment, Frank. (Maybe I'm wrong.) I see no articulated principle that would prevent the application of the professor’s assertion that the line between protectable expression and unprotected collective conscious to the arcolect. (Nor am I certain that the substitution of the basilect/arcolect distinction for the distinction between frivolous and high-brow fiction is apt. And it is also far from clear that it is sound policy to attempt to exterminate any – even “frivolous” – genre of literature through the application of copyright law. I think that there is an important place for such literature – I was an avid reader of the Hardy Boys before I was ready for Rushdie, and I’m not certain that without my “lad lit” days I would now enjoy the rich, highbrow literature from which I derive so much pleasure.) As a practical matter, works that may be considered “frivolous” may penetrate the collective conscious at a faster rate than more sophisticated fare, but this shouldn’t limit the principle.

Professor Silbey mentions the fact that certain phrases from popular culture are repeated and used by millions of teenagers (and probably older people, as well), as a way of communicating. But I’m not sure that this is the sort of “internalization” that should be required before any given individual is entitled to use the expression as his or her own. My feeling is that when such an expression is used, it serves two purposes. First, it communicates an idea. It does so by referring to an external event – a book, movie, etc. Second, it signals in-group status by establishing that both the speaker and the listener are part of the subculture in which knowledge of the external event is assumed. (If the speaker and listener are not members of the same group, both purposes fail. I suspect that we’ve all experienced this awkward social situation.) Both purposes require the speaker and listener to identify and understand the external source of the expression, and the citation to that source is implied. I’m therefore a little dubious about whether pop culture becomes so internalized (at least at a very fast rate) that we can call the expression our own.

[Cthomas]

There is a good post over at Language Log, a blog by linguists at Penn, on this subject. A poster there argues that arguments like Silbey's underestimate just how complex even "chick lit" is. It's not just a bunch of cliche'd sentences strung together--the same sentences, in different order, in different books. No, these writers--like this blogger, like us commentors--has a voice and a style and a certain amount of admittedly non-Tolstoyan creativity. Some of the passages the Harvard student cribbed are quite distinctive and interesting, IMHO. Therefore, it was correct for the book to be pulled and pulped.

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