Monthly Archives: February 2011

Kate Sutherland

Weekend Roundup of News & Reviews, February 21-27, 2011

Below are links to some of the news stories and book reviews related to law and the arts that caught my attention this week.

Last month, Stephen Hillard and Cruel Rune LLC, the author and publisher of Mirkwood, a novel featuring J.R.R. Tolkien as a character, received a letter from the Tolkien estate threatening immediate legal action for violations of intellectual property unless all copies of the book are destroyed. But it is Hillard and Cruel Rune who are now taking preemptive legal action, seeking a declaration from a Texas court that the book, which they describe as “both a work of fiction and a critical analysis of the works of J.R.R. Tolkien,” is protected by the fair use doctrine and the First Amendment. Given the current popularity of works of fiction in which historical figures appear as characters (termed “faction” by one recent commentator), the implications of the case could be far-reaching. (THR, Esq., Courthouse News, Observer)

Fawzia Afzal-Khan has self-published her fictionalized memoir, Lahore With Love: Growing Up With Girlfriends Pakistani Style. It was published by Syracuse University Press last spring, but quickly spiked after the press received threats of legal action from a woman in Pakistan who alleges that one of the characters in the book is a defamatory portrait of her. The National Writers Union and others have criticized SUP for failing to champion the author and her right to freedom of expression, particularly in light of the protection now afforded by the U.S. SPEECH Act against the enforcement of foreign libel judgments. You can read SUP’s statement here, TWU’s statement here, and the author’s account of her experience here. (Inside Higher Ed, TDR, change.org)

The International Publishers Association is concerned about the fate of Shahla Lahiji, founder of Roshangaran, an Iranian press that publishes books on women’s issues, after she is said to have been named on a “blacklist, reportedly circulated by a chapter of Iran’s Basij militia at Khajeh Nasir University, contain[ing] names of Iranian publishers it thinks are displaying ‘evidence of soft overthrow and velvet revolution.’” (The Bookseller)

A UK teacher is waiting to hear from an employment tribunal whether she’s entitled to compensation for her 2009 dismissal. She was fired for gross misconduct over a short novel she wrote that was intended to get students in difficulty interested in reading by including them as characters. Though by all accounts the project succeeded in this aim, the controversy that led to her dismissal erupted when the book, replete with sexual references and swear words, was inadvertently made publicly available through an online self-publishing site. (Guardian)

On behalf of UK library users, a Birmingham-based human-rights law firm is mounting a court challenge to Somerset and Gloucestershire library closures on the basis that proposed cuts violate “the statutory obligation under the 1964 Public Libraries and Museums Act for local authorities to provide a ‘comprehensive and efficient library service for everyone wanting to use it.’” (Guardian)

The family of animator Max Fleischer has been unsuccessful in a bid to claim exclusive ownership of his creation, comic character Betty Boop. The U.S. Ninth Circuit Court of Appeals this week upheld a lower court ruling denying the family’s copyright and trademark claims on the basis that they were unable to prove a valid transfer to them in the intervening decades of the rights that Fleischer sold to Paramount Pictures in the 1940s. Of the trademark claim, Judge J. Clifford Wallace wrote: “If we ruled that Avela’s depictions of Betty Boop infringed Fleischer’s trademarks, the Betty Boop character would essentially never enter the public domain.” (THR Esq., WSJ, Clannco)

Accusations of plagiarism flew around the music world this week, leveled against Lady Gaga, Kanye West, and Britney Spears. Only the claim against Spears appears poised to spark a lawsuit, with the Bellamy Brothers complaining that her new single “Hold It Against Me” is “too close” to their 1979 hit “If I Said You Had A Beautiful Body Would You Hold It Against Me?”, and indicating that they “will without doubt take the appropriate legal action if [their] attorneys agree [they’ve] been ripped off.” (The Daily Beast, Jezebel, Starpulse)

Bunhill Fields cemetery in north London has attained the protected status of a Grade I designation on English Heritage’s register of parks and gardens of special historic interest. “The cemetery, founded in the 1660s as a burial ground for nonconformists, radicals and dissenters, holds the remains of John Bunyan, author of The Pilgrim’s Progress, Daniel Defoe, who wrote Robinson Crusoe, and the poet and artist William Blake, among thousands of others.” To see a slide show of photographs taken there by Graham Turner for the Guardian, click here. The photograph above and to the right is of the monument to Daniel Defoe. (Guardian)

John le Carré has donated his literary archive to Oxford’s Bodleian Library. The archive includes multiple drafts of his novels, and many boxes of correspondence and personal photographs. Le Carré was a student at Oxford, as was his most famous character, fictional Cold War spy George Smiley. “Oxford was Smiley’s spiritual home, as it is mine. And while I have the greatest respect for American universities, the Bodleian is where I shall most happily rest,” said le Carré. The Bodleian plans to make the archive available to researchers online. (Telegraph, Independent)

Kate Taylor profiles Anders Roslund and Borge Hellstrom, “a bestselling Swedish crime-writing duo with the most unlikely background: They met through a mutual interest in the rehabilitation of ex-cons.” The profile suggests that their books exemplify the best qualities of the current wave of Swedish crime fiction with which they are associated in that they simultaneously provide entertainment and social commentary. (Globe & Mail)

Vit Wagner highlights the best of Canadian crime fiction in an article primarily focused on author Ian Hamilton whose debut novel, The Water Rat of Wanchai, the first installment in a Toronto-based mystery series featuring forensic accountant Ava Lee as sleuth, has just been released to rave reviews. (Toronto Star)

James Bartleman talks with Mark Medley about his first novel, As Long as the Rivers Flow, which centres on the residential school experience of the main character and its aftermath. “It’s not, Bartleman says, ‘an indictment of white society,’ but rather a novel showing how a wrong committed against one person can echo for generations.” He hopes “that this book would appeal to marginalized people everywhere.” (National Post)

Kate Sutherland

The Rights (& Wrongs) of Stravinsky’s Rite of Spring

It has become something of a ritual for me at this time of year, just when I’m most eagerly anticipating the change of seasons, to attend a performance of Igor Stravinsky’s The Rite of Spring, and, most years, the Toronto Symphony Orchestra obliges me by staging one. Last night’s performance, conducted by Vasily Petrenko, was a triumph. Sufficiently blood-stirring to bolster me through however many weeks of winter we have left to endure.

There are a couple of legal stories associated with The Rite of Spring that I recalled only vaguely going in. But the excellent program notes by Don Anderson filled in some of the details. And, diligent law & the arts blogger that I am, I did a bit of research today to ferret out more.

The most interesting tale relates to its debut performance at the Théâtre des Champs-Élysées in Paris on May 29, 1913. Though most often performed as a concert today, The Rite of Spring was conceived and debuted as a ballet, choreographed by Vaslav Nijinsky and performed by the Ballets Russes. The combined effect of Stravinsky’s music and Nijinsky’s choreography was such a shock to the sensibilities of its first audience that it provoked what has been termed the best-known classical music riot in history. (How many contenders might there be for that honour? If you know any other stories that challenge the genteel image of classical music, please share them in the comments!)

Stravinsky wrote of the event: “Mild protests against the music could be heard from the beginning. Then, when the curtain opened on a group of knock-kneed and long-braided Lolitas jumping up and down, the storm broke.” Carl van Vechten, who was in attendance that evening, explained: “A certain part of the audience was thrilled by what it considered to be a blasphemous attempt to destroy music as an art, and swept away with wrath, began to make catcalls and to offer audible suggestions as to how the performance should proceed.” Others chimed in with contrary views. The vociferous debate soon degenerated into fisticuffs in the aisles. The police were summoned but were unable to fully restore order. Some accounts assert that the police shut the performance down at the intermission, others that it continued on chaotically to the end. Subsequent performances were not similarly disrupted. In fact, they were ecstatically received, and ultimately the controversy surrounding the debut served only to further burnish Stravinsky’s rising star.

The Rite of Spring’s second brush with law involved courts rather than police, after it was prominently featured in Walt Disney’s 1940 animated film, Fantasia. At that point, Rite was in the public domain in North America, but it was protected by copyright elsewhere in the world, so Disney negotiated a licensing agreement with Stravinsky for a total of $6,000 to secure foreign distribution rights. Stravinsky was not impressed when he saw a preview of the film. He was unhappy with alterations that had been made to the music and he pronounced the performance of it “execrable.” But he did not seek legal recourse, whether because he believed the agreement he had signed precluded him from doing so or he was simply disinclined to litigate.

It was Boosey & Hawkes, music publishers who had purchased rights to the composition from Stravinsky in 1947, who took Disney to court decades later on the occasion of the release of the film on videocassette, alleging breach of contract and infringement of copyright in at least 18 countries. The litigation began in 1993 and continued for eight years, raising all manner of interesting issues about the jurisdiction of U.S. courts in international copyright matters, the effect of unforeseen technological advancements on licensing agreements, and the assignability of moral rights. Ultimately, however, after multiple court rulings, most but not all in their favour, Boosey & Hawkes settled for three million dollars.

To return focus to the music, here’s a bit of Rite-related viewing, courtesy of YouTube, to take you into the weekend.

Conductor Simon Rattle on Stravinsky and The Rite of Spring:

A recreation of the debut performance from the BBC drama Riot at the Rite:

And, finally, a snippet from the animated version in Disney’s Fantasia that Stravinsky found so objectionable:

Kate Sutherland

Freedom to Read Week



It’s Freedom to Read Week in Canada, an annual event organized by the Freedom of Expression Committee of the Book and Periodical Council, “that encourages Canadians to think about and reaffirm their commitment to intellectual freedom, which is guaranteed them under the Charter of Rights and Freedoms.”

This means thought-provoking displays to peruse and events to attend all across the country.

Here are some of my options in Toronto:

Censoring Manga for Fun and Profit
On Wednesday, February 23rd, at 7:00 pm at the Lillian H. Smith Branch of the Toronto Public Library, Christopher Butcher, manager of famed comic book store The Beguiling, will talk “about the many surprising and unfortunate ways manga are censored in North America, as artistic integrity is sacrificed out of fear and a desire to maximize profit.” On his website, Comics212, Butcher gives a bit more detail: “As for my talk, it’s going to go after particularly heinous examples of censorship, get into some of the reasons behind the changes, and into a larger discussion about censorship and manga in regards to the new laws in Tokyo and with our own beloved Canada Customs. It should be a lively discussion. Oh, and there will be adult images shown, so get parental permission before coming out kids!” For a bit of background on the issues he’ll be addressing, click here to read a recent interview with Butcher in the Toronto Star.

Sexual Outliers: Censorship, Advocacy Journalism and the Gay Press
On Wednesday, February 23rd, at 7:00 pm at the Yorkville Branch of the Toronto Public Library, Pink Triangle Press (PTP), publishers of Xtra and fab, will present a salon discussion “on moral puzzles involving censorship and free expression as covered in the gay press.” The question of how “queer communities [are] struggling to reconcile the fights for freedom of sexual and political expression with their desire to fight homophobic expression” will be explored through “case studies rang[ing] from Queers Against Israeli Apartheid and the Toronto Pride Parade, to murder music, Canada Border Services Agency and queer-themed film.”

Challenging Books: Who Should Decide What Our Children Read?
On Wednesday, February 23rd, at the Gladstone Hotel, this panel discussion will be the centerpiece of the Book and Periodical Council ‘s annual celebration of Freedom to Read Week. The panelists will be: “Patsy Aldana (Award-winning founder and Publisher of Groundwood Books); David Booth (Professor Emeritus in the Curriculum, Teaching and Learning Department in the OISE at the University of Toronto); Eve Freedman (Student and winner of TWUC’s Freedom to Read Award) and Peggy Thomas (Librarian and Library Service Manager at the Toronto Public Library)”. Questions to be addressed include: “Why is it that we continue to see controversial books removed or challenged in our school libraries and classrooms? When is removing a book justified? Where do we draw the line? Can we raise a generation of critical thinkers if we remove controversial publications from the system? Where should children learn about these difficult topics, if not in an educational setting? How can we prepare educators to address these controversial subjects?” Doors open at 6:00 pm, and the festivities begin at 6:30.

What We Talk About When We Talk About Hate
On Friday, February 25th, at 7:00 pm at the Toronto Reference Library Atrium, PEN Canada and the Toronto Public Library will present a panel discussion addressing such questions as: “How should we define hate speech? Who should censor it, and when should the right to free expression be invoked? “ The panel will be moderated by Steve Paikin, Host of TVO’s The Agenda, and will feature these panelists: “Susan G. Cole, author, playwright, broadcaster and senior editor at NOW Magazine; Jonathan Kat, op-ed columnist and comment pages editor for the National Post; Janet Keeping, President of the Sheldon Chumir Foundation for Ethics in Leadership; and, Richard Moon, author and Professor in the Faculty of Law, University of Windsor.” Tickets are $10 at the door and the proceeds will go to PEN Canada.

For a listing of Freedom to Read Week events elsewhere in the country, click here.

Of course, you could also stay home and exercise your freedom to read.

Kate Sutherland

Weekend Roundup of News & Reviews, February 14-20, 2011

Below are links to some of the news stories and book reviews related to law and the arts that caught my attention this week.

Ablene Cooper has filed a lawsuit against author Kathryn Stockett over her best-selling novel The Help. Cooper, who has spent much of life working as a maid, including twelve years in the employ of Stockett’s brother, claims that one of the characters in the book, a maid named Aibileen Clark, “is an unauthorized appropriation of her name and image, which she finds emotionally distressing.” The complaint details a number of similarities between the complainant and the character. Stockett’s publishers have indicated that they “don’t think there is any basis to the legal claims.” (NYT, Guardian)

The UK government has indicated that it may take control of libraries if local councils “are overzealous in closures,” out of concern that “some communities, particularly rural ones, may end up with no access to library services,” and worry over “the effects of the closures on children and the elderly.” (The Bookseller)

This week Borders, the second-largest bricks-and-mortar bookstore chain in the U.S., filed for Chapter 11 bankruptcy. Publishers are particularly hard hit by this latest blow to the book industry, as much of Borders’ debt is owed to them. (Los Angeles Times)

Just a day later, Australians were shocked by the “collapse of REDgroup, which owns the country’s largest bookshop chain Angus & Robertson, as well as Borders and the Whitcoulls chain of newsagencies in New Zealand.” The Sydney Morning Herald reports that this occurrence is not linked to the fate of the U.S. namesake of Borders Australia, though the bricks-and-mortar book trade on both sides of the Pacific has similarly “suffered from the rise of internet book sales and constrained consumer spending.” The affected chains have been “placed into voluntary administration.” (The Bookseller, Sydney Morning Herald)

David LaChapelle has launched a copyright infringement suit against Rihanna, alleging that the recently released music video for her song “S & M” borrows heavily from the imagery of his photographs. (NYT, Radar Online, Daily Mail)

In another case allegedly involving the use of real names in fiction, a lawyer for CBS was in court in California this week seeking the dismissal of a defamation and invasion of privacy suit brought against the network over an episode of television crime drama CSI. Scott and Melinda Tamkin claim that the episode, featuring a couple named Scott and Melinda Tucker, was penned by the scriptwriter “using their names and likeness at a time when he was angry with them because of a real estate deal gone awry.” A three-justice panel of the 2nd District Court of Appeal will issue its decision within 90 days. (Daily News)

Jayme Gordon, a Boston illustrator, has filed a copyright infringement suit against Dreamworks Animation. He alleges that characters in the hit movie Kung Fu Panda “are substantially similar to illustrations of characters he created and registered with the U.S. Copyright Office in 2000 that are collectively titled Kung Fu Panda Power,” and that “DreamWorks rejected illustrations he sent to them in the 1990s.” (The Unruly of Law)

Irish artist Jim Fitzpatric is seeking to secure copyright to his iconic picture of Che Guevara. He explains that he hadn’t sought royalties earlier despite the proliferation of the image because he’s never cared about money. But now he wants to establish ownership “so he can hand over the rights to the Guevara family and the Cuban people” when the Che Guevara Cultural Centre opens in Havana in September. (The Irish Times)

In accordance with a ruling now made final by the U. S. Department of the Interior, the University of Pennsylvania must return sacred Tlingit artifacts, including “ceremonial hats and helmets” that “were purchased by a curator in the university’s Museum of Archaeology and Anthropology from 1918 to 1925.” (Chronicle of Higher Education)

An exhibition at Rome’s State Archives reveals the truth behind the bad boy image of Renaissance painter Caravaggio. His crimes, detailed in carefully preserved “handwritten police logs, legal and court parchments” from the late 16th and early 17th centuries, ranged from assaulting a waiter with a plate of artichokes, to carrying a sword and a dagger without a permit, to killing a man over a gambling debt. (BBC)

For four decades, Camilo José Vergara has been photographing murals “in the poorest and most segregated communities in America.” Now he has assembled a slide show of some of these images to showcase the unique view of black history that they offer: “Official murals painted on schools, hospitals, government offices, and community organizations often portray a cheerful and optimistic view of racial progress, but murals on the walls of convenience and liquor stores, barbershops, fast food restaurants, churches, and abandoned buildings offer a lively alternative to this bland vision.” The photograph that heads this post was taken by Vergara in Compton, California in 2000. (Slate Magazine)

This week an exhibition of new work by artist James Hart Dyke opens in London. It includes 40 paintings, 25 drawings, and prints that document a year he spent shadowing MI6, the British Secret Intelligence Service. He was invited to do so by then head of the organization, John Scarlett, at the behest of MI6 officers who felt that the paintings he would produce would be a suitable way to document their history “as part of the run-up to the 2010 centenary year.” Praised by Scarlett as “highly evocative of life inside MI6,” Hart Dyke’s exhibition promises to be “an unexpected treat for that section of the British public who are endlessly fascinated by spies and their world.” (Guardian)

Thriller writer Charles Cumming is interviewed by Jake Kerridge about his new novel, The Trinity Six, “a yarn about an academic’s attempts to uncover the identity of a previously unsuspected sixth member of the Cambridge spy ring.” (Telegraph)

Thirteen lost short stories by Daphne Du Maurier, tracked down by Ann Willmore, a Cornish bookseller and longtime Du Maurier fan, are to be published by Virago Press in May. Says Willmore of the stories: “They have a sting in the tale, and are quite sinister. They are different from her novels.” My curiosity is thoroughly piqued. (The Independent)

According to Charles McGrath, Wesley Stace’s Charles Jessold, Considered as a Murderer is at once a murder mystery and a novel about classical music that features both “a convincing fictional composer” and “an entertaining fictional critic.” (NYT)

Brett Alexander Savory pronounces Keith Hollihan’s debut novel, The Four Stages of Cruelty, “powerful” and “mesmerizing.” Set in a maximum security prison, with a female corrections officer as the main character, Savoy tells us, it offers “startling moments of insight into what separates people from monsters⎯not much at all.” (Globe and Mail)

Hallie Ephron praises Kate Taylor’s historical novel A Man in Uniform for offering a fresh take on the Dreyfus affair. In it, lawyer François Dubon finds his orderly life in 1897 Paris turned upside down when he is persuaded to assist Captain Dreyfus after he has been convicted of spying for Germany. Along the way, Dubon “rediscovers the passion for justice that led him to practice law in the first place.” Ephron concludes: “It rewards the patient reader with a rich sense of time and place while offering a fascinating look at a historically based what-if.” (Boston Globe)

In Louise Dean’s “darkly comic” and “bracingly acerbic” novel The Old Romantic, Nick Goodyew, an English divorce lawyer, through the efforts of his put-upon younger brother, reunites with his parents from whom he is estranged, and who are estranged from each other. Sylvia Brownrigg writes of the novel: “Although class markers are a recurrent theme, The Old Romantic is essentially a highly entertaining, vivid evocation of love and marriage in its various forms.” (NYT)

In an omnibus review of new books about print magazines, Steven Heller finds much to like in a pair of books about the publications that provoked and emerged in the wake of the 1954 institution of the Comics Code in the United States. Heller says of The Horror! The Horror! Comic Books the Government Didn’t Want You to Read!: “In addition to offering a generous helping of controversial comics … Trombetta’s book provides insightful history.” And he sums up The Weird World Of Eerie Publications: Comic Gore That Warped Millions of Young Minds! as “a curiously wonderful, weird and eerie tale of magazine history.” (NYT)

Kate Sutherland

Lawyer-Writers: Louis Auchincloss’s Compromise


The first fiction that I assign in my Law and Literature class each year is a couple of stories by lawyer-writers. I do this partly to provide inspiration to students who are writers and who fear that embarking on a legal career will mean abandoning their literary aspirations. But mostly, because it seems to me that one of the best ways to begin an exploration of the connections and tensions between law and literature is in the company of guides who straddle the boundary. On both counts, Louis Auchincloss fits the bill perfectly.

Auchincloss, who died last year at the age of ninety-two, spent forty years practicing law in a Wall Street firm, and also published more than sixty books in his lifetime, including forty-seven works of fiction. His star has never burned as brightly in the literary firmament as those of fellow New Yorkers Edith Wharton and Henry James, but his work garners sufficient respect that his name is sometimes mentioned alongside theirs.

As he revealed in his 1964 memoir, A Writer’s Capital, by virtue of his family, Auchincloss felt himself situated at the intersection of law and literature almost from birth. His father practiced corporate law at a single New York firm for fifty-seven years, and his mother was “an omnivorous reader” whose “literary opinions were pungent, incisive, always interesting,” and she was a skilled storyteller besides.

That’s not to say that law and literature fell into an easy accord for Auchincloss in adulthood. He spent many years zigzagging between the two pursuits. Initially, he doubted his literary powers, and was all but resigned to the idea that it was his destiny to follow his father into the legal profession: “I believed … that a man born to the responsibilities of a brownstone bourgeois world could only be an artist or writer if he were a genius, that he should not kick over the traces unless a resounding artistic success, universally recognized, should justify his otherwise ridiculous deviation. The world might need second-class lawyers and doctors; it did not need a second-class artist.” Perhaps it’s not surprising then that when his first novel, written as a Yale undergraduate, was rejected, he promptly enrolled in law school.

Auchincloss found, to his surprise, that he enjoyed the study of law: “For what was a case but a short story? What was the law but language?” For a time, his duties on law review served as a satisfying substitute for fiction writing. But once he’d graduated and taken a job in practice, the fiction bug bit again. He spent all his spare time writing and before long he had a couple of published novels under his belt. It didn’t interfere with his legal work and the partners at his firm regarded his writing good-naturedly as an interesting quirk. But if the writing didn’t interfere with his legal work, he feared that the same could not be said in reverse: “I was increasingly bothered by a nagging apprehension that I might be slighting my literary muse by not devoting myself full time to her.”

Once again, Auchincloss felt he must choose and this time he chose literature. He resigned from the firm to write full time. But after only a couple of years, he realized that this was a failed experiment: “To sum up the account of my nonlegal years, they added nothing to my stature as a writer. The main thing about them, of course, was to have been time, but even that proved an undependable friend. My writing hours increased, but both the quantity and quality of my writing remained the same.”

Auchincloss continued to write but also returned to practice: “People ask me how I manage to write and practice…. All I can say is that a great step was taken when I ceased to think of myself as a ‘lawyer’ or a ‘writer.’ I simply was doing what I was doing when I did it.” He termed this a “compromise” but it seems to me that it was something more than that. For it wasn’t simply a matter of allowing the two to co-exist, but of recognizing that both were of central importance to him and that, ultimately, they fed each other. He chose to practice in an area of law rich in human drama that offered inspiration for his fiction: “It is probably not a coincidence that my work has been largely with people and personal problems: planning of wills, of estates, setting up trusts, handling marital separations, divorces, as opposed to the more impersonal matters of corporate or municipal financing.” And in several of his novels and stories, he shone a light back on his legal milieu, creating incisive portraits of law firms and lawyers.

Much of Auchincloss’s fiction has no overt legal content, including the novel that many critics regard as his best, The Rector of Justin. (Although even here there is a legal footnote, as Auchincloss once revealed that he based the main character on Judge Learned Hand⎯yes, he of the formula that still lies at the heart of negligence law.) If you’ve not yet encountered Auchincloss’s work, you may wish to start there. But if you’re interested in his legal stories, I recommend the suite of stories in Tales of Manhattan about the firm of Arnold and Degener; the “loose-leaf novel” The Partners; and his final novel, Last of the Old Guard.

* The photograph of Louis Auchincloss that heads this post is taken from the cover of his posthumously published memoir, A Voice From Old New York.

Kate Sutherland

Weekend Roundup of News & Reviews, February 7-13, 2011

Below are links to some of the news stories and book reviews related to law and the arts that caught my attention this week.

Plans to release a trove of unpublished writings by Malcolm X, including journals he kept during 1964 trips to Africa and the Middle East, have been thwarted by a longstanding feud over the estate of his widow, Betty Shabazz, between their six daughters. (NYT)

A recent English translation of “a Russian reworking of JRR Tolkien’s The Lord of the Rings” is proving popular with fans, but Tolkien’s estate is not pleased, deeming it copyright infringement. Publisher David Brawn elaborates: “Online there are lots of infringements which it is extremely difficult to do anything about,” he said. “When you get something as popular as Tolkien, fans want to create new stories. Most are pretty amateurish. Tolkien himself isn’t around so it’s the estate’s view that it’s best to say no to everything. If you let one in, you’d open the floodgates.” (Guardian)

Emma Thompson is seeking a declaration from a New York federal court that her latest film script does not infringe the copyright of a play by Gregory Murphy. Both film and play focus on “a love triangle featuring the 19th century poet and critic John Ruskin.” (Guardian)

Lawyers for Amanda Knox are suing to prevent the airing of a television movie about the murder for which she has been convicted in Italy, arguing that it “could prejudice perception of the case just as the appeal process gets underway.” The victim’s family also wishes to stop the film, fearing that it will make their struggle to put the tragedy behind them more difficult. (Hollywood Reporter, Media Law Prof Blog)

New Orleans “Mardi Gras Indians work to copyright costumes” in a bid “to get a slice of the profits when photos of the towering outfits they have spent the year crafting end up in books and on posters and T-shirts.” (NPR, Clancco)

“A bill introduced [this week] in the Iowa House calls on the University of Iowa to sell its famous Jackson Pollock Mural painting, valued at $140 million, to set up a trust fund for student scholarships.” (Cedar Rapids Gazette, The Art Law Blog)

In a profile of Barry Gifford, best known as the founder of Black Lizard Press and an author of noir thrillers, Allen Barra stresses the originality and versatility of his recent work. (Salon)

Carlo Wolff makes Keigo Higashino’s The Devotion of Suspect X sound irresistible to this aficionado of international crime fiction. He lists “murder, philosophy, forensics, and a culture of repression” among its ingredients, and pronounces it a compelling noir novel “that ratchets up tension to the end, providing excitement and insight into the psychology of modern Japan along the way.” (Boston Globe)

Jennet Conant describes Douglas Waller’s Wild Bill Donovan: The Spymaster Who Created the OSS & Modern American Espionage as “an entertaining history” and notes: “Waller is more concerned with the politics of personality, and the legacy of Donovan’s complex, larger-than-life character. As he amply shows, Donovan was a combination of bold innovator and imprudent rule bender, which made him not only a remarkable wartime leader but also an extraordinary figure in American history.” (NYT)

Fancy tracking the Socratic method back to its source? Steve Donoghue trumpets Bettany Hughes’ The Hemlock Cup: Socrates, Athens, and the Search for the Good Life as “a beguiling book” and “history, and historical reconstruction, exactly as it should be written.” He concludes: “The Socrates Hughes creates is ultimately a towering yet intensely human figure. He lives and speaks again in these pages: It’s a singular accomplishment.” (Washington Post)

* The image above is a reproduction of Jackson Pollock’s Mural (1943, oil on canvas, 8′ 1 1/4″ x 19′ 10″), owned by the University of Iowa Museum of Art.

Kate Sutherland

The Stories Behind Great Cases

Earlier this week, I had the pleasure of attending a launch for my colleague Allan Hutchinson’s new book, Is Eating People Wrong? Great Legal Cases and How they Shaped the World.

In the book, Hutchinson tells the stories behind, and assesses the legacies of, eight well-known cases from across the common law world. Well-known, that is, to law students, law professors, and lawyers. But the book is intended to have a broader appeal. By setting each case in social and political context, and focusing on character and incident rather than on legal doctrine, Hutchinson seeks to put a human face on law, and to convey the “evanescent, dynamic, messy, productive, tantalizing, and bottom-up” character of the common law.

Having now read a couple of chapters, I have no doubt that the book will be embraced by a non-legal audience. These are great stories, told in a compelling and accessible style. But it’s also illuminating reading for those of us already fully steeped in law, as most of us will have encountered these cases before only in diminished form. Here Hutchinson restores the richness that is routinely stripped away as cases make their way through the courts, and into law reports and casebooks.

Every year I offer my first year torts students a brief introduction to the field of law and literature in a session titled “A Closer Look at the Facts.” We look beyond the facts articulated in a judgment to demonstrate that they’re not simply an objective account of the relevant evidence, but rather a narrative carefully crafted to support a particular legal resolution. Then we broaden our lens still further to discuss the layers of storytelling that precede the courtroom and continue on after the issuing of the judgment.

Hutchinson’s Is Eating People Wrong? promises not just an interesting and entertaining read, but also some excellent new material for that exercise. I skipped straight from the introduction to the chapter on Donoghue v. Stevenson, and I can tell you that I will most definitely be integrating it into my next torts syllabus. Now, on to Roncarelli v. Duplessis and Hadley v. Baxendale

Kate Sutherland

Weekend Roundup of News & Reviews, January 31-February 6, 2011

Below is a roundup of links to some of the news stories and book reviews related to law and the arts that caught my attention this week.

Penguin is reported to be delaying publication of an English translation of Zhang Ling’s award-winning Chinese novel Gold Mountain Blues “until it is satisfied that the author hasn’t been poaching from the works of Canada’s Chinese Canadian literary elite.” Chinese bloggers have alleged plagiarism of the work of such authors as Denise Chong, Wayson Choy, and Sky Lee; Zhang categorically denies the allegations. (Toronto Star)

A class-action suit for consumer fraud has been filed against Jimmy Carter and his publisher Simon & Schuster claiming that his book, Palestine: Peace Not Apartheid, “was falsely marketed as an accurate account of peace negotiations in the Middle East.” The fraud case arising from James Frey’s mostly fabricated memoir, A Million Little Pieces, is cited as a precedent. Simon & Schuster reject any parallel, pronouncing the suit to be “frivolous, without merit,” and “a chilling attack on free speech.” (NYT, The Faculty Lounge)

H.B. Fenn, Canada’s largest book distributor, has filed for bankruptcy protection in “the latest example of what has become ceaseless turmoil in Canada’s most vulnerable cultural industry.” Critics decry government inaction. Kim McArthur, of McArthur & Company Publishing, asks: “Why are they screaming about some Australians wanting to buy a potash company when there’s not a peep about the thing they’re meant to be protecting – Canadian publishers and Canadian authors?” (Globe & Mail)

A study commissioned by NBC Universal finds that music piracy is on the decline. Matt Rosoff draws the conclusion that, not only are people not buying, they “don’t care about music enough” to steal it either. (SFGate)

Artist Jeff Koons has “backed down in an intellectual property dispute over balloon dog-shaped bookends” manufactured by Toronto company Imm-Living and sold by San Francisco gallery Park Life. (NYT)

A U.S. District Court Judge has dismissed “a lawsuit accusing Christie’s auction house of failing to recognize a valuable drawing by Leonardo da Vinci and selling it for a fraction of its true worth.” (Reuters, Clancco)

Producers of The Hurt Locker seek to have a war veteran’s defamation suit against the film dismissed under California’s anti-SLAPP statute as an attempt to stifle free speech. (Reuters)

Kirk Makin reports on “the latest in a series of court rulings” in a family battle over the estate of millionaire John Kaptyn, “written last week by an irate judge who compared the Kaptyns to Charles Dickens’s feuding Jarndyce clan, from the novel Bleak House.” (Globe & Mail)

One of fifteen unpublished Dashiell Hammett stories, only recently unearthed by editor Andrew Gulli in a Texas archive, is to be published in The Strand this month. Apparently not all of the stories are in Hammett’s classic hard-boiled style though, which makes the find all the more exciting to some. “We have discovered that he was a far more versatile writer than he ever gets credit for,” Gulli said. (The Guardian)

A joint investigative report titled Post Mortem: Death Investigation in America highlights the gulf between the reality of forensic investigation, and representations of it in detective novels and on television crime dramas. (NPR, Law & Humanities Blog)

Susannah Meadows has effusive praise for The Death Instinct, Yale law professor Jed Rubenfeld’s “tremendous follow-up to his 2006 novel, The Interpretation of Murder.” (NYT)

David Orr’s perusal of Poetry of the Law: From Chaucer to the Present, a new anthology edited by David Kader and Michael Stanford, prompts a broad-ranging and thought-provoking consideration of law, literature, and interdisciplinarity. (Poetry Magazine)

Nancy F. Koehn pronounces Ben Tarnoff’s Moneymakers: The Wicked Lives and Surprising Adventures of Three Notorious Counterfeiters a “rollicking good read” that “shows how three con men were able to thrive in America’s early days because of a weak central government, an often-chaotic banking system, a turbulent economy and an entrepreneurial populace.” (NYT)

Roger Hutchinson finds John Macleod’s None Dare Oppose: The Laird, the Beast and the People of Lewis to be “an absorbing account of malice and mischief in the 19th-century Hebrides.” (Scotsman)

Emily Temple displays and discusses “a series of cohesive covers for Schocken’s (part of Pantheon) backlist of Kafka books” designed by Peter Mendelsund which “will begin appearing on paperbacks early this summer.” I’ve posted a few of my favourites above. (Flavorwire)

Kate Sutherland

Charles Dickens’ 1844 Copyright Suit

In January 1844, Charles Dickens launched a copyright suit in the Court of Chancery against printers and publishers Richard Egan Lee and John Haddock.

Dickens’ A Christmas Carol had been published on December 19, 1843, and not quite three weeks later, on January 6th, Lee & Haddock’s version, “re-originated” by Henry Hewitt, had appeared for sale under the title A Christmas Ghost Story. An outraged Dickens instructed his solicitor to “stop the Vagabonds” at once. Over a whirlwind three days, his bill of complaint was filed, and an interim injunction sought and obtained.

Dickens was known to be an advocate of copyright, having caused quite a stir during his 1842 visit to the U.S. with speeches agitating for an international agreement. But despite having been a frequent victim of domestic piracy, he had never before taken legal action to enforce the copyright protection available to him at home.

Why, then, did he act with such alacrity in January 1844? Perhaps because his hopes for A Christmas Carol were so high. Dickens had attained enormous success by this time, but his fortunes appeared to be on the wane. Critics had not been enthusiastic about his most recent books, and sales had dropped so precipitously that his publishers were poised to invoke a contractual clause that entitled them to reduce their payments to him accordingly. Indeed, their faith in the marketability of his work had soured to the extent that they rejected A Christmas Carol. Dickens had to self-publish, taking all of the responsibility and the risks upon himself. But he did not hesitate to do so, so convinced was he that the book would revive his critical status and earn him a quick profit as well.

Dickens’ confidence proved well founded. The reviews were raves; even William Thackeray, usually his harshest critic, had nothing negative to say, pronouncing A Christmas Carol to be “a national benefit, and to every man or woman who reads it, a personal kindness.” The book went through three printings in two weeks, with 15,000 copies sold in that space of time ⎯extraordinary numbers given the steep price of 5 shillings charged for each lavishly produced volume. But that lavishness, particularly the inclusion of colour plates, rendered the profit margin very slim, so runaway success though it was, many more copies would have to be sold before Dickens could pocket the “thousand pounds clear” on which he had set his heart.

Thus Dickens’ concern over the potential undercutting of sales by Lee & Haddock’s penny edition was understandable. But if bringing suit against them was initially a business decision, the affidavits they filed in support of their motion to dissolve the interim injunction transformed it into a matter of personal honour.

Lee & Haddock maintained that A Christmas Ghost Story was not simply a copy of A Christmas Carol, but a considerable improvement upon it, and hence an original work. Henry Hewitt had, it was averred, “tastefully remedied” the “defects and inconsistencies” in Dickens’ work, and supplemented it with “a more artistical style of expression” and “large original additions.” For example, Lee pointed out, where Dickens had made only a brief mention of Tiny Tim singing a song about a child lost in the snow, Hewitt had penned an original song of sixty lines that was “replete with pathos and poetry.” They went further to allege that Dickens was in fact indebted to Hewitt, having obtained “the germs of many of his works” from the “hints” and “criticisms” contained in Hewitt’s earlier re-originations of The Old Curiosity Shop and Barnaby Rudge, both also procured, published and sold by Lee & Haddock. Finally, Hewitt himself claimed that Dickens owed more “to the works of an author named Washington Irving for the material of his Christmas Carol” than Hewitt did to Dickens for his Christmas Ghost Story.

Judge Knight Bruce, before whom the motion to dissolve the interim injunction was heard on January 18th, was not convinced. He opined: “The defendant has printed and published a novel, of which the fable, the persons, the names of persons, the characters, the age and time, and scene and country, are wholly the same. The style of language in which the story is told is in some instances identical, and in all similar.” He concluded that, in his view, the defendants’ publication was “plainly colourable,” and, on that basis, he upheld the injunction.

Dickens was ebullient, declaring: “The pirates are beaten flat. They are bruised, bloody, battered, smashed, squelched, and utterly undone.” Of course, these were only preliminary motions. For a final resolution from the courts, Dickens would have to bring the matter to trial. But given the decisiveness of the judge’s rejection of the defendants’ arguments, Dickens suspected that a trial would not be necessary, and so it proved. After some hedging, the defendants accepted Dickens’ terms, agreeing to apologize for their affidavits and to pay all of Dickens’ costs.

Alas for Dickens, it did not end there. Lee & Haddock promptly declared bankruptcy, thereby evading their obligation to pay his costs and leaving him on the hook for a substantial sum. In the end, Dickens’ costs swallowed nearly all the profits that A Christmas Carol had generated, leaving him feeling much scarred by the experience. Some years later, when it was suggested that he take action against another instance of piracy, Dickens recalled “the expense, and anxiety and horrible injustice of the Carol case,” and declined to proceed. He concluded that “it is better to suffer a great wrong than to have recourse to the much greater wrong of the law.”

If Dickens obtained neither justice nor financial recompense from his foray into the Court of Chancery, the experience did provide direct inspiration for one of his finest novels, Bleak House. For that, I can’t help but think it was worth every bit of “the mental trouble and disturbance” he had to endure.

Sources:

Charles Dickens, Bleak House (1853).

E.T. Jaques, Charles Dickens in Chancery (1914).

Les Standiford, The Man Who Invented Christmas: How Charles Dickens’s A Christmas Carol Rescued His Career and Revived Our Holiday Spirits (2008).

Kathleen Tillotson, ed., The Letters of Charles Dickens, Volume 4 1844-1846 (1977).

* The above illustration is The Court of Chancery, drawn by Augustus Charles Pugin & Thomas Rowlandson for Ackermann’s Microcosm of London (1808-11).

Kate Sutherland

Welcome

Welcome to law.arts.culture, a blog devoted to exploration of the intersection of law and the arts. I’m blogging solo for the moment which is apt to tilt the blog in a literary direction given that much of my research and teaching is in the field of law and literature, and that I’m a fiction writer besides. But I’m in the process of recruiting a team of bloggers—Osgoode colleagues, students, and alumni—whose diversity of interests and expertise will soon broaden the focus to include music, film, theatre, visual art, and more. Please visit often, and join in the conversation!