22 February 2006

Thorns on the Rosebush

Would trashy novel-length ramblings written by someone other than the individual to whom they are attributed scan as… well, trashy? I'm sure that connoisseurs of the trash would care. I don't, except in the abstract.

It appears that Israeli author Dalia Gal has sued Mary Higgins Clark for "plagiarism."1 Ms Clark allegedly took substantial elements of Ms Gal's screenplay Immortalin for her book The Second Time Around, which has sold somewhere upwards of 650,000 copies.2 The article—in a misleading summary that is nonetheless unusually perceptive for an article from The Book Standard (or, for that matter, the New York Daily News) concerning legal matters—notes that

Clark told the columnist that "before this lawsuit was filed, I had never heard of Ms. Gal and certainly never saw her screenplay." Adam Rothberg, a spokesman for publisher Simon & Schuster (a Viacom company), added that Gal's "allegations are blatant nonsense and patently untrue." Nonetheless, Grove told The Book Standard, a judge has so far refused a request from S&S lawyers to dismiss the case.

(fake paragraphing removed for clarity; emphasis added)

Why is this unusually perceptive? Because it actually gets to the legal crux of any case of this nature: access. It appears that the complaint alleges enough about how Ms Clark—or, more likely, one of her "associates"—obtained access to Ms Gal's screenplay to avoid a motion to dismiss. I have no idea about the truth of anything related to this matter. However, I would not be surprised that, assuming arguendo that there was access, it was access through an influential third party—Ms Clark's daughter (a frequent coauthor), a ghostwriter or editor, an agent, a friend. That is precisely what happened in the notorious Desny v. Wilder—so far as the evidence showed, Mr Wilder never had direct communiction with Mr Desny; it was the secretary's fault.

Of course, there is also the question of substantial similarity, and the defense of scenes á faire, for Ms Gal to overcome before she can claim victory. Those issues are not going to be easy for Ms Gal. Bluntly, one would have to labor mightily to even find a coherent "plot" in many books of this nature, let alone characters worth stealing. In practice, the inquiry actually collapses into the access inquiry; if the trier of fact believes there was access, that greatly influences the finding on similarity. That is, if we catch a student looking at another student's exam book, we pretty much assume that there was actual benefit for the first student (whether copying or inspiration). In this context, too, we have the question not just of "something was copied," but "enough was copied to create infringement, even though the copying isn't literal." All of which leads back to the uneasy balance among US visions of copyright, foreign visions of copyright that include strong droit de suite, and attribution (both passing off and reverse passing off) under trademark law.

The real losers are probably the poor suckers who bought The Second Time Around in the first place. But that's another story. Or, perhaps, the story itself.

  1. We'll pretend, for a moment, that "plagiarism" means what Ms Gal seems to think it does. It doesn't; it's probably not so much a copyright violation (under US law) as a trademark violation; but that's just another irrelevant aside. Which is why I have relegated it to a footnote.
  2. Although the story linked to says that BookScan shows sales of only 632,000 copies, one must remember that BookScan is nowhere near comprehensive. It excludes non-bookstore outlets, including most airport book/news shops; Wal-Mart and other discounters; Costco and other warehouse "clubs"; and book clubs. I suspect that actual sales are closer to 800,000 than to 650,000, based on typical sales and availability of Ms Clark's books through these non-BookScan outlets, but 650,000 is a safe minimum estimate.