The business of owning an idea, a line, an image

The romantasy plagiarism controversy straight out of Gaddis

detail from the cover of Frolic, painting by Sarah Gaddis

The danger of reading William Gaddis’ novels is that you will start to see his plots everywhere. Art forgery in the news? We got ourselves a Recognitions situation, though to keep ourselves honest the forgeries need to be supposedly lost works of the great masters, newly discovered, ideally with overtones of a Faustian bargain. I was obsessed with the first-Trump-era fraudster Jacob Wohl because his history of securities law violations and a lifetime ban from the National Futures Association while still a teenager makes him a close, albeit unsavory, analogue to J R Vansant, the 11-year-old protagonist of J R who amasses a fortune through penny stocks and tax writeoffs. When the pandemic made us all stay inside for a year and go insane?—wow it’s giving Carpenter’s Gothic.

So you can imagine my mounting excitement as I read Katy Waldman’s recent New Yorker piece about an allegation that a successful fantasy-romance novel was plagiarized from another writer’s unpublished manuscript, as each new detail brought the story closer to the core plotline of A Frolic of His Own, Gaddis’ National Book Award-winning fourth novel, a grand satire of justice and the law, published in 1994. If life imitates art, the resemblance in this case is uncanny.

Let’s stick with the New Yorker story for a minute and come back to Frolic. The facts are as follows: Lynne Freeman finished a draft of her first novel, called Blue Moon Rising, in the fall of 2010. The story was about a teenager named Anna who moves from San Diego to Alaska (where Freeman grew up), falls in love with a werewolf, and learns she has magical powers. She then worked with an agent named Emily Sylvan Kim for three years to expand and revise the manuscript, which Kim sent to “more than a dozen publishers” in 2013. The book received good notes from editors but was rejected for falling into too-similar territory to a lot of post-Twilight young-adult literature. In March 2014 Freeman withdrew her submission from the one publisher who had yet to respond, a company called Entangled, and parted ways with Kim.

Seven years later, in 2021, Freeman happened upon a YA book called Crave, by Tracy Wolff (a pen name), published by Entangled. Though the book features vampires rather than werewolves there were numerous similarities to Blue Moon Rising both in overall plot and in small details. Wolff turned out to be represented by Kim and in the acknowledgments to Crave thanked Stacy Abrams, the editor at Entangled who had received the Blue Moon Rising pitch years earlier. Freeman is convinced that Entangled, its CEO Liz Pelletier, and Wolff used Blue Moon Rising as the basis for the Crave series without crediting or compensating her. She filed a copyright infringement lawsuit in 2022; litigation is ongoing and has “cost Freeman several hundred thousand dollars and the defendants more than a million dollars.”

A Frolic of His Own follows Oscar Crease, a semi-employed American history professor and son of a prominent judge. His father is in the news for presiding over a case involving a boy and his dog trapped within a massive sculpture called Cyclone 7 that the artist insists cannot be moved or tampered with in any way without violating the artistic whole. This plotline is a parody the Richard Serra Tilted Arc controversy. Oscar meanwhile is furious over a blockbuster movie in the theaters called “The Blood in the Red, White, and Blue” that’s about the Battle of Antietam. It’s a gory spectacular directed by Constantine Kiester, a filmmaker renowned for cinematic excess. Oscar hasn’t seen the movie but based on the plot summary he read in the paper he’s sure it’s a direct rip-off of a play he wrote years earlier. Called Once at Antietam, his play is based on the experience of his grandfather, who was compelled to hire Civil War substitutes for himself on the side of both the Union and Confederacy, both of whom died at Antietam, leading him to become convinced they had killed each other, making him a sort of “walking suicide.” Oscar’s play has never been performed but he once sent the script to a television network in the hopes that they would produce a version of it.

Oscar forces his various interlocutors—his girlfriend Lily, his lawyer Mr. Basie, his brother-in-law Harry—to read long stretches of Once at Antietam to demonstrate the similarities between it and the film. His play suuuucckksssssss. The dialogue is stiff and dull, with emotions and character dynamics rendered so obliquely that there’s nothing for a reader/viewer to grab onto. The prologue, in which the protagonist, returned home from the Battle of Ball’s Bluff, and his mother ramble on and on, stretches fourteen pages. After reading it with him, Lily says, “You better read it to somebody else Oscar. I don’t even know what it’s supposed to be about.” Same, girl!

Oscar’s work is highly personal but it’s also based on history, which he’s repeatedly reminded can’t be copyrighted. He feels ownership over the core scenario because it’s his grandfather’s story but this is precisely what does not give him exclusive rights over it. In the bravura deposition sequence, the opposing counsel catches Oscar in this trap:

Q It [hiring substitutes] was, in fact, a not uncommon practice on both sides of the conflict for those who could afford it, was it not?

A It, yes.

Q And the idea, the idea that a man of split allegiances might find himself in a situation obliging him to send up a substitute in his place in each of the opposing armies, while it was hardly an everyday occurrence, was certainly within the realm of possibility, wasn’t it?

A Yes, it…

Q And that the two might even meet in battle?

A Yes, yes that’s…

Q In fact there was at least one such documented instance, was there not?

A That’s what my…

But the preponderance of details the play and film have in common go far beyond the historical facts of his grandfather’s substitutes. There’s the fact that Thomas (the play’s protagonist) and Randal (his film analogue) are both wounded at Ball’s Bluff and return home with scars on their cheeks (now mirrored by Oscar’s own disfigurement after being run over by his own car, a source of much confusion). There’s the way both characters thought they were inheriting a great estate only to be sent to dingy servants quarters, only to eventually win their way into the manor house by winning the hand of the plantation owner’s daughter. And so on.

Similarly, the lawsuit over Crave and Blue Moon Rising is both scaffolded and undermined by the romantasy genre. As Waldman tells it:

Freeman’s suit rests on hundreds of similarities, compiled by Freeman and her lawyers, between her own manuscripts and notes and the “Crave” series. Taken one by one, few examples seem to rise to the level of infringement. The Alaskan setting, which Freeman saw as her intellectual property, is surprisingly common: Pelletier estimates that about ninety-five per cent of vampire novels take place in Alaska, New Orleans, or Las Vegas. Small-plane pilots are standard issue for romance, a genre that loves a man in uniform, and it goes without saying that trysts under the aurora borealis are de rigueur.

Other similarities are harder to explain away. In both books, the heroine’s parents bind her powers with tea; the male lead is guilty and grief-stricken over his older brother’s murder. I scoffed when I saw that Freeman’s side had listed “shining white courts” as a similarity, referring to the fact that, in both works, the heroine is brought to a marble building with white columns. But the court scenes have more than architecture in common. In each, the main character is transported to a timeless place presided over by a green-eyed woman. The heroine feels a sense of belonging; she is told that this is the home of her ancestors. In Wolff’s version of the scene, there are “thick white candles burning in gold candelabras.” In Freeman’s, there are “candles flickering to life in all of the wall sconces.” You can’t copyright candles any more than you can copyright marble, or ancestors, or green-eyed women. But the composition of these details, the totality of how the obvious or ordinary beats are strung together in each, is startling.

Documenting all these similarities takes place in the shadow of the legal doctrine of scènes à faire, or “scenes that must be done,” that strips copyright protections from standard elements of genre as, “not legally protectable, although their selection and arrangement might be.”

Oscar’s lawyer Basie reminds him of this when he tells him “See what I’m saying is where maybe you can’t protect an idea, what you can protect is the expression, your original artistic expression of this idea in these characters, what they do, how they talk, but you try to prove they stole all that from your play it doesn’t exactly sound like what you hear these days in the movies.” In other words, Oscar’s claim rests on “substantial similarity” between his play and the film even though his words have been entirely replaced with simpler dialogue. Or as the problem goes in romantasy land, “Another problem for Freeman is ‘substantial similarity’ itself, a notoriously slippery standard located somewhere between works that raise suspicions of copying (probative similarity) and works that are almost identical to other works (striking similarity). The defendants argue that the two books feel extraordinarily different in tone, pacing, voice, and style. And ‘if they feel different,’ Pelletier told me, ‘then they are.’”

Pelletier is acting in self-interest, obviously, but there’s something compelling in that claim. Can an idea be separated from its expression? Oscar himself makes a claim like this and undermines his own argument during the deposition when he says:

I gave a clear answer. The idea executed is the idea expressed, transformed into a play, in other words it’s definitely bound to the execution. So there are two things there to talk about. One is the idea and the other is the execution of the idea which is the work, the work we’re talking about, the play. When the idea is tied with the execution, then they are both unique and separable as such and defendable.

But if that’s the case, then doesn’t that make “The Blood in the Red, White, and Blue” a separate and unique work because the execution is so different? After all, Kiester has stripped out Oscar’s numerous homages to Plato and Shakespeare in favor of action and titillation. In Pelletier’s words, “if they feel different, then they are.”

Another similarity between Frolic and this real life case is the difficulty of proving that the defendants actually lifted from the allegedly infringed upon work. In the novel, it’s eventually claimed that Jonathan Livingston, the tv producer Oscar sent his script to, was Constantine Kiester before a name change; it never became clear to me whether this is really true or something that simply must be asserted for their case to have any merit. In the case of Crave, we know that Entangled had access to the Blue Moon Rising manuscript, but “A problem for Freeman is that none of the 41,569 documents that the defendants were compelled to hand over make any mention of Blue Moon Rising. And Pelletier and Wolff both assert that they never saw Freeman’s novel or discussed it with anyone.”

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Thinking about the way tropes operate in the YA and romance genres, as familiar elements that readers expect to recognize and demand to encounter over and over casts a revealing light on the way Oscar and Gaddis himself deploy literary allusions. When Basie comments on Oscar’s highbrow dialogue about justice Oscar cuts him off: “Right there where they were talking about justice, Mister Basie, happens to be some of the greatest dialogue in the history of western civilization. That passage, the whole scene is from the first book of Plato’s Republic that’s why it sounds familiar. You’re supposed to recognize it because it’s, what’s the matter.”

Oscar’s lifting goes too far. The play is nothing but a mish-mash of Plato and Shakespeare references centered around his grandfather’s story that is somehow also so close to Eugene O’Neill’s play Mourning Becomes Electra that by the end of the book the O’Neill estate files suit against Oscar for copyright infringement. But Gaddis himself was one of the happiest quote lifters I’ve ever read. If Oscar has lifted his plot from O’Neill, well, so has Gaddis! We know from his letters that O’Neill constituted some of his earliest mature reading—he wrote to his mother in 1942, age 19, that he had bought a nice copy of O’Neill’s sea plays and continued to reference him in correspondence frequently over the ensuing years.

When Gaddis hit upon a phrase that perfectly encapsulated an idea he never abandoned it. “The self that could do more,” “what it’s all about”—his final book, Agapē Agape, plays like a greatest hits album, throwing all his favorite phrases into the mouth of its frenzied narrator, who much resembles Gaddis, desperate to say everything he has left before he dies. Perhaps Gaddis’ favorite phrase of all was “the unswerving punctuality of chance,” which recurs in all five of his novels. But it’s not his phrase! It comes from Thomas Wolfe’s Look Homeward, Angel. His typical expression of weariness and resignation in his letters is “Life is very long,” a lift from Eliot’s Four Quartets.

This love for a good reference went hand in hand with a lifelong anxiety over the origin and originality of his ideas. His thinking is so permeated by his copious reading and he intermingles other authors’ lines into his own writing so densely that even he seems to have worried about what was really his. His original inspiration for The Recognitions was Faust—the bargain Wyatt strikes with Recktall Brown to produce forgeries is supposed to mirror that of Faust and Mephistopheles; his letters to his mother during the period of the book’s conception are so charming due to his overwhelming excitement at all the pieces he’s putting together. And then he realizes that other writers have thought to reference Faust before him.

In a letter to the journalist and novelist Katherine Anne Porter in 1948 he writes:

Did you have trouble with people anticipating you? that an idea which you had discovered and formulated for yourself and then were working to deliver it, find it was not yours (in the mean sense) but (if you thought further, with courage and (if you were not mean) gratitude) eventually yours most because given to all, because one may have the brass to say it is a truth? Well, and so when you said in your letter of distinguishing loneliness and solitude, I was immediately troubled, even (witness this meanness) offended. Do you understand? As though, what business had you, to offer in some fifteen words, what I discovered finally some six or eight months ago, discovered with such triumph!

He then describes in syntax too baroque to blockquote finding a Pirandello play that has a title close to his working title for The Recognitions (which was Some people who were naked, oof) and that features a character who signs their letters Faust. Well perhaps his idea isn’t so original, but maybe the expression could be. Life is very long.

This inability to locate the source of an idea was to me the most compelling part of the New Yorker story about Crave and Blue Moon Rising. Kim, the agent shared by both Freeman and Wolff, spent three years working with Freeman on Blue Moon Rising and spent hours on the phone with her talking through scenes, according to Freeman (Kim denies this). The composition process of Crave and its sequels was extremely chaotic and rushed:

Correspondence among Kim, Pelletier, Abrams, and Wolff suggests that, in the hectic days and hours before a book deadline, an already collaborative creative process could become an all-out emergency. It was sometimes hard to tell who added what. “Love ‘our tree of trust is just a twig’ did you write that?” Kim texted Pelletier, about a line in Crush. Referring to a different line, Pelletier said, “I wrote that sentence, but I was using Tracy’s voice.” And: “I came up with every header but the first chapter lol.” While closing Court, which was on a particularly tight schedule, author, editor, and agent supplied sentences and ideas, all of which swirled together in the various documents being updated in tandem on each of their laptops. Pelletier asked Kim, “Tracy wrote that moonstone description?” Kim texted Abrams, “Tracy and I are team speed writing new scenes,” and “I’ve stopped copy editing because I helped write all this.” (The defense said that Kim’s contribution “was extremely limited and was entirely technical.”)

If there’s anything that lends credence to Freeman’s lawsuit, it’s this passage. I don’t believe that Kim set out to plagiarize from Blue Moon Rising. But she’s an agent, not a writer, and in a moment as frantic as this it’s easy to imagine her grabbing at any idea that passed through her mind without interrogating quite where it came from, whether it was original or whether she was faintly recollecting something she worked on years before.

Gaddis himself was no stranger to a publishing process this slapdash. He drafted carefully over years. And yet no one at Scribner paid enough attention to the design of the paperback of A Frolic of His Own, with “National Book Award Winner” splashed across the top, to keep it from being mass produced without an egregious misprint on the spine.