Malcolm Gladwell’s New Yorker piece about the distinction between the ethics of plagiarism and sources of creativity — issues of enormous importance in intellectual property debates — is being justly and widely praised. Let me point out that while the article explores the difficult line between fact, where plagiarism tends to matter more, and fiction, where the norms of copyright are supposed to kick in, the magazine itself has taken a surprisingly resolute stand on Gladwell’s writing itself. Look at the heading on the page; look at the URL for the article. This is “Fact.”
This is unsurprising to me in the following very specific sense. Twenty years ago, The New Yorker learned a very hard lesson about the line between “fact” and “fiction.” For years, until the early 1980s, The New Yorker ran “Talk of the Town” essays that began with a line like, “A friend from the country writes . . . .” There would follow two or three pages of dense, witty prose describing vividly some unusual event in some out of the way place, in a way that truly transported the reader and that was, by all outward appearances, true.
But in many details, these weren’t true. I learned this in college, when Alastair Reid, then a staff writer for The New Yorker (in addition to many other things), visited a seminar I was taking and explained that Talk of the Town pieces that he had written featured Borges-like imaginative blends of fact and fiction. Intuitively, I knew this. I attended the Yale graduation of 1982 and later read about it in The New Yorker. A lot of details were simply wrong.
Alastair Reid’s explanation filled in the gaps in a way that was merely interesting to most of us. It was, however, especially provocative to one member of the seminar, who graduated a short time later and went to work at the Wall Street Journal, where she promptly published a front-page expose of the magazine’s ethical lapses. Fiction masquerading as fact! Who would trust The New Yorker again? (This was before the Janet Malcolm/Jeffrey Masson case.) The article launched Joanne’s career; she’s still at the Journal, so far as I know, and she has been widely praised for her work.
Chastened, The New Yorker revised its Talk of the Town format, and it has learned to label its contents “Fact” and “Fiction,” so that no one is confused. Roger Angell and John McPhee for the long-timers, and James Surowiecki and George Packer — and Malcolm Gladwell — for the newbies, speak the truth; John Updike makes it up. Alex Ross, Anthony Lane, and Paul Goldberger have their opinions, which we know because the magazine tells us that they are “The Critics.” No friends from the country write anymore.
If the history of The New Yorker explains much, much still is unexplained, including the subject of the Gladwell article itself. How and why did both Dorothy Lewis and her interlocutors (who advised her to see the play, “Frozen,” which borrowed material from her published research) apparently fail to see the difference between “fact” and “fiction”? Is this because that line has been bent so far that we see truth and fact even in obviously manufactured stage work, film, and television? Or is it that we so understand our lives to be self-consciously performative that we plausibly claim to be “authors” and “creators” of fictive selves? Should the playwright and the theatre have posted signs, in the manner of The New Yorker itself, telling us how to keep fact and fiction distinct? Signs can be misleading; signs can be abused; not everyone can read, or read signs in the same way. (For copyright mavens: remember, ProCD v. Zeidenberg is a case about signs.) Signs, in short, shouldn’t be sufficient.
But are they necessary? In a number of different places — fair use, derivative works, substantial similarity, the line between fact or idea and expression — copyright draws distinctions between “creative” and “noncreative” work, sometimes quite badly, but often well enough that the copyright system as a whole has endured, in relatively stable form, for nearly 300 years. My view is that messy as that process usually is, in one important respect it serves us well. The structure of the law mimics the structure of our experience, as we live our lives and figure out what’s true, and what’s not. If we aren’t on our own, where do we find meaning in our worlds?
One way to solve problems in copyright law is to stop drawing lines based on fact and fiction, and to draw others — perhaps based more comprehensively and explicity on economic considerations, for example. These would be different signs, signs that don’t say “fact” or “fiction” but say “stop and pay toll.” Property zealots would use the sign to extinguish fair use; property progressives might use it to enact broader compulsory licenses. Sympathetic to the latter view, Malcolm Gladwell comes out with a conclusion that I like:
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 writerâ€™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 lineâ€”and let it go.
Unfortunately, in making the claim (and implicitly rejecting the toll) in property terms, he and the magazine miss a nice opportunity to make the related point. What’s at stake isn’t merely the character of what I own and what I don’t, but the human challenge of finding meaning in the experience of our lives.