Pride and Property

The media business is the search for annuities. A character, a concept, a title, a catchword, an image, a ditty, whatever … anything that achieves any kind of cultural currency is a potential revenue stream for shareholders and heirs for generations to come.

The Tennessee Legislature extended to Elvis Presley, and to anyone else in Tennessee who might warrant it, a “right of publicity” that would continue after death. Elvis’s heirs, in other words, can continue to control and sell the Elvis image and personae. No one else can make use of Elvis – even as a historical figure. This “right of publicity” concept spread naturally to California, where it was of great benefit to the many heirs of the celebrity industry (it is much better for a celebrity to die in California than, say, New York, which does not have such a right).

The Rock and Roll Hall of Fame has tried to charge photographers who photograph its building – the theory is that not only do the owners of the building own the real property, but they own, too, the unreal property of identity and image.

The McDonald’s corporation, as part of this unreal property grab, is trying to trademark virtually every Mc-prefix derivative (“McQuestion,” “McSymphony,” “McProduct,” “McMillion”).

The Martin Luther King Jr. estate demands payment for and approval of any use of King images or words, even in a historical context (the estate has most recently turned him into a corporate pitchman for Alcatel).

Then there are the hundreds of cease-and-desist letters sent out by Viacom lawyers to the Websites of Star Trek fans.

All of which brings us to The Wind Done Gone, the story of the mulatto half-sister of Scarlett O’Hara, recently enjoined from publication by the rights holders of Gone With the Wind, which, were it not for the extension of the copyright laws as part of another concerted effort to squeeze more dough for the families of dead authors and artists, would now be in the public domain.

The victory for the GWTW heirs – a ruling that, if it stands on appeal, promises to extend the range of intellectual-property claims – was the work of the literary lawyer Martin Garbus, who proclaimed it a victory for writers everywhere. (He refers to the Mitchell estate – really various lawyers from the Sun Trust Bank in Atlanta acting on behalf of Margaret Mitchell’s nephews, Eugene and Joseph Mitchell – as “the author.”)

Garbus, with all the floridness and vanity of an old-time trial attorney, is the best-known free-speech lawyer in the country. He’s represented Lenny Bruce, Susan Sontag, Philip Roth, Timothy Leary, Daniel Ellsberg, Samuel Beckett, the estate of John Cheever, Andrei Sakharov, and Nelson Mandela, among others (Salman Rushdie, however, who often appears on this list, has felt compelled to publicly deny any association with Garbus).

Now, it is true that, in a somewhat less visible role, and on behalf of some of these same clients, he’s also been quite a thwarter and enjoiner. He tried to stop a biography of Susan Sontag; he managed to block a collection of uncollected Cheever stories (the family had agreed but then thought it could get a better deal); there was a Beckett production he threatened with a temporary restraining order; and he writes fulminating letters on behalf of clients, sometimes writers, who have managed to get themselves, unflatteringly, in other people’s books (I myself have gotten, to no great consequence, such a Garbus letter).

Certainly, though, it’s his reputation as a defender of writers that precedes him (“Perhaps the closest thing in New York to a modern-day Daniel Webster, Garbus has made a living by fighting the dark side in all its forms,” wrote The Village Voice not long ago). Garbus had even recently represented the author of a parody of Lolita when the Nabokov estate tried to stop its publication.

He solemnly, and sadly, told the GWTW court in Atlanta: “I have never been in the position of trying to stop a book from being published.”

Obviously, you wouldn’t want a philistine, or Southerner, arguing the virtues of prior restraint or offering his opinion on literary matters.

Indeed, Garbus managed to get the case to turn on the most literal of literary notions: What is a parody? If the book, all parties agreed, could have been shown to be a parody (an argument being made, for and against, by men who, one might assume, do not often read parodies or, probably, many books of any sort), then its publication would have been allowed, but if it is just “revisionism,” in Garbus’s characterization (“You can write revisionist history,” he says, but not, he argues, a “revisionist novel”), then it would have to be disallowed.

At any rate, it is almost impossible to follow the literary argument here. It’s based not on literature but on the more or less random benchmark cases that have been decided by various courts. The critical lexicon involves an Annie Leibovitz photograph (she was mad when someone mockingly imitated her portrait style), a scrapbook of Seinfeld trivia (Castle Rock got mad when someone published such a book), and 2 Live Crew’s unauthorized version of Roy Orbison’s “Oh, Pretty Woman” (which, according to Garbus, “defines parody”).

Apparently, some works, in the view of various courts, are “transformative” (which is good), and some are “derivative” (which is bad), but by what measure and to what effect you make such judgments is hardly clear (one might suspect anyway that these judgments are different in Atlanta for Margaret Mitchell).

In this instance, an acceptable parody seems to be something that is a broad, yuk-yuk, slapstick sort of thing – i.e., a bad parody (if Mad magazine did a GWTW parody, that would be tolerated). But if the work is something larger, and subtler, something that might genuinely disturb someone, or undermine the value or position of the original book (in this case, The Wind Done Gone tries to hoist the various bigotries and stupidities of GWTW by its own plot and language), that might be considered derivative, and it would not be allowed.

Which is, of course, the rub: not derivation but value.

“Media companies see themselves as the owners of popular culture, and hence are foes of anyone freely expressing anything that might conceivably interfere with their ability to further exploit the rights they hold.”

Garbus refers often to the “Gone With the Wind property rights”; he is watchful of trespassers “on my land.” Garbus’s partner, Richard Kurnit, talks about the GWTW “franchise” rights.

You could, in fact, recast the case in pure business terms (the issues involved with intellectual property do not really relate to intellect). The Mitchell estate is trying to protect its market and its franchise rights (it labels the offending book “an unauthorized sequel”), while the author of The Wind Done Gone and her publisher, Houghton Mifflin, are, in essence, accusing the estate of trying to monopolize the market.

There is a way in which you can see Garbus as a character in the changing media business. He moves along the time line on which, in a different age, representing intellectuals and artists was prestigious, not to mention honorable, work for a lawyer (it was also good work for a natural publicity hound). But the media business becomes more complicated and pervasive; it subsumes the literary business; everyone has media interests. Such representation of writers and artists evolves into a different legal discipline (prestigious in another way – it’s highly remunerative and you work with celebrities) known as entertainment law.

When I drop by his bookish law office, Garbus in fact paints a regretful picture of a changing profession. Publishers, he says, were once mom-and-pop operations, and they were represented by lone practitioners who were happy to make less than a corporate lawyer because they were doing better work. This lawyer could go to dinner at the publisher’s house, and lawyer and publisher would share common values and interests. But it’s all different now.

Publishers, the traditional defenders of free speech, are now part of media companies that see themselves as the owners of the characters, symbols, references, derivations, images, personalities, language, sounds, and stories of popular culture, and hence are foes of anyone freely expressing anything that might conceivably interfere with their ability to further exploit the rights they hold.

Still, plying his craft, Garbus argues for a certain consistency in his own positions. He is doing what he’s doing not for the Gone With the Wind heirs but for his friend Philip Roth (on whose behalf he once wrote a threatening letter to my friend Susan Braudy, who had written a memoir with a scene unflattering to Roth). “What if someone were to write Portnoy from the point of view of the psychiatrist?” he asks, appalled.

That’s the point, I say – no one is that interested in Portnoy anymore. I argue the extra-legal position that there is a level at which a pop icon gets so big – big enough to invite parodies or, if you will, infringements – that it seems reasonable to judge that the rights holder has already been amply compensated. Parody, or something other than parody – infringement, even – is the price of success, in other words.

Media culture is the culture that writers have to deal with.

Garbus, representing his client of the moment, patiently takes the ham-handed position that there are ways for writers to criticize the culture without “crossing the line” into infringement, and then enumerates the kind of literal-minded books you might write if you were a lawyer instead of a writer.

I find myself thinking about the pathos or comedy of Garbus’s transformation from free-speech advocate to good intellectual-property burgher, the irony of his fiery protestations that he would defend to the death the right of any rights holder to exploit every last penny of his or her holdings.

On the other hand, I do understand a little. If you are a writer (or a rights holder) of any success, if you can afford an attorney at all, if your agents are on the ball, it’s pretty clear that the enemy is us. That even prior restraint, the most absolute of free-speech no-nos (Garbus says blandly and baldly, “Issuing an injunction in this case is not prior restraint”), starts to look only fair when you begin to compute all the sequels and spin-offs and plush toys your heirs might authorize and benefit from.

“Don’t you fear,” I say, “that the modern threat to free speech turns out to be not so much a political issue as a commercial one?”

“It’s still political,” he says.

You wish, I think.

Pride and Property