Subject
Lo's Diary/NYTBR (fwd)
Date
Body
Lolita and the Lawyers
Is it good or bad for literature that ''Lo's Diary'' will
finally see the light of day? A
reimagining of Vladimir Nabokov's ''Lolita'' from
Lolita's point of view, the novel, by Pia
Pera, comes out next month after narrowly avoiding an
expensive and divisive lawsuit.
''Lo's Diary'' was originally published in Italy in 1995,
but it was not until Farrar, Straus &
Giroux announced plans for an English-language translation
last year that Dmitri Nabokov,
the author's son, sued. He claimed copyright infringement,
maintaining that Pera's novel
borrowed unacceptably from ''Lolita,'' that fewer people
would buy Nabokov's masterpiece as
a result, and thus that the new novel would ''inflict
immeasurable losses'' on one of the
''towering literary works of this century.'' Farrar, Straus
backed down, and there the matter
stood until Barney Rosset, head of Foxrock Inc., stepped in.
As the attorney representing
Foxrock, I argued that Pera's work was transformative in
nature, and thus encouraged under
the law. In the end, we worked out an agreement that allowed
Pera to publish her novel in the
United States and Britain, with a preface by Dmitri Nabokov
and half the author's share of
royalties to be donated to PEN. Both sides wanted more, but
each got enough.
What of the issues raised, however? Because the case
never went to court, some troublesome questions of free
speech and property rights remain unresolved. This was
a unique case, and could potentially have ended up
before the Supreme Court, setting a precedent in the
increasingly contentious arena of copyright law. ''Lo's
Diary'' simply doesn't fall into any traditional category
that the law, or literature, is used to dealing with: it's
not
parody or criticism, which don't require permission; it's
not a prequel or a sequel, which do. About half the novel
tells much the same story as Nabokov's work, with the
same characters. But when the story opens, Lolita is
married and living in Paris, and the 85-year-old
''Humbert Guibert'' is retired on the Riviera with a young
wife (''the mulatto daughter of his cook''), where he
plays tennis and correspondence chess. Most
significant, in ''Lo's Diary,'' it is not Humbert but Lolita
who is the seducer; the novel is a first-person narrative
giving her side of the story.
Literature is full of such borrowings; the extent of the
''taking'' varies. In ''Agamemnon,'' Aeschylus took
characters and incidents (but not the whole story) from
Homer, who took the incidents from history. The legend
of Pygmalion became a play by George Bernard Shaw,
which became the show ''My Fair Lady.'' If Homer's
estate sued Aeschylus, or if Pygmalion's author sued
Shaw, I would hope the ancient courts would allow the
works. To take a modern example, Michael
Cunningham's novel ''The Hours'' -- this year's Pulitzer
Prize winner for fiction and a work of unquestioned
originality -- pays homage to Virginia Woolf's ''Mrs.
Dalloway'' and clearly refers to characters and incidents
from that novel.
Yet the analogy that is perhaps most compelling is a musical
one. ''Lo's Diary'' is really a
variation on a theme, defined by Baker's Biographical
Dictionary of Musicians as ''one of a
series of transformations . . . by means of harmonic,
rhythmic and melodic changes and
embellishments.'' Music is replete with examples: Mozart's
variations on Salieri, Gluck and
dozens of others; Beethoven on Diabelli, Paganini on Haydn,
John Corigliano on Beethoven.
In contemporary music, the practice of using words and
melodies from original songs has
been upheld by the Supreme Court, as in the 1994 case of 2
Live Crew's hip-hop parody of
the Roy Orbison song ''Oh, Pretty Woman.''
The question of influence and attribution has also
frequently been dealt with in the art world.
Forgery is not allowable; nearly any other interpretation
is. To mention only a handful of
New York painters, James Rosenquist borrows a section of
Picasso's ''Guernica'' and
incorporates it into his very large canvas ''The Swimmer and
the Economist''; Roy
Lichtenstein's paintings feature his renderings of Matisse,
Picasso and Leger along with the
comic strip artists he admired, and Milton Glaser has done
his own interpretations of Piero
della Francesca's work.
Yet in 1992 a Federal appeals court in New York dealt the
art world an unusual setback, ruling
that one of Jeff Koons's ceramic sculptures was a rip-off
(the legal term is copyright
infringement). Koons had based the sculpture, painted in his
garishly colored style, on a
greeting card photograph by Art Rogers of a smiling American
husband-and-wife team
holding eight puppies. All the courts saw as evidence were
two pictures: one, the
black-and-white photograph on the card, and two, a
photograph of the sculpture exactly the
same size.
The appeals court, in describing the Rogers photograph, saw
what it wanted to see: ''a typical
American scene -- a smiling husband and wife holding a
litter of charming puppies.'' But what
Koons saw was totally different. He saw sentimentality,
inanity and kitsch. When he blew up
the image to larger than life size, stuck daisies in the
hair of the sickly sweet smiling couple
(the flowers were not in the photograph) and painted the
finished ceramic, the sculpture
acquired a horrific quality quite distinct from the
original.
Should the courts make judgments on the basis of the quality
of the art or the legitimacy of
the artist, as I think they did in the Koons case (though
they would deny it)? It's a dangerous
business. The decision might well have gone the other way if
the artist had been someone
other than Koons, who graduated from hawking securities on
Wall Street to peddling
sculptures depicting himself and his wife, a former porn
star turned member of the Italian
Parliament, engaged in explicit sex acts. In the case of Pia
Pera, who has a doctorate in
Russian and has written extensively on Russian literature
and translated Pushkin, Herzen and
Lermontov, should her background make a legal difference?
What if her novel gets bad
reviews? In my opinion, none of these matters are relevant.
The courts decide issues of creative license only because
someone must. Yet many judges
with whom I am acquainted know very little about new forms
of art, music and literature --
and still less about where creativity comes from. Most have
traditional rather than
experimental tastes; they generally do not go to the Venice
Biennale, film festivals in
Amsterdam or to theater in Chelsea or the Lower East Side.
Yet in an era of corporate consolidation and the growth of
commerce on the Internet, the
conflict between ownership and free speech will no doubt
increasingly bedevil the courts.
Media giants often believe their interest is more on the
side of protecting copyright than
granting permission for unrestrained creativity, for these
are substantial financial assets we are
talking about. In a world of media clutter, the use of
symbols, images and icons -- the
phenomenon of ''brand-naming'' -- means instant recognition.
Issues of who owns what
image will become increasingly fraught. To take just one
example, we all agree that
duplicating a copyrighted picture is not a creative act, and
the copyright holder can object to
the sale of the copy. But what if a photograph is digitized
and slightly altered in the process?
Does that mean the digitized photo, created with a totally
different technology, is a new
creative work? In the Koons case, the court found it
significant that Jeff Koons contracted out
the actual making of the ceramic -- his hands never touched
the work -- and that the Rogers
photograph was not ''iconic.'' Andy Warhol, on the other
hand, colored his Marilyn Monroe
series himself; the original image was taken from the
newspaper. Does that make his work
more original than Koons's?
The ''Lo's Diary'' dispute is a tiny part of a much larger
debate. How do you balance free
speech against property rights? How do you encourage the
artist to feel free to be fully
creative? Marsilio, Pia Pera's Italian publisher, and Dmitri
Nabokov settled because the law is
unclear. Neither side could safely predict it would win, and
the costs could be extraordinary.
But the law needs further clarity for authors, publishers,
readers and the First Amendment.
My views are very much informed by two conversations I had,
a decade and two continents
apart -- first with Andrei Sakharov, the scientist and
dissident, in Moscow, and the second
with James D. Watson, one of the discoverers of DNA (and the
author of the acclaimed
''Double Helix''), in Cold Spring Harbor, N.Y. They both
talked about the pre-eminence of
American creativity in science and technology, and they both
tied it to the First Amendment;
in this country, you can think anything, you can imagine
anything, and you can say
everything. There are not many limits to our creativity, in
any field, and we are less rule-bound
and freer to create our own world than any other nation.
This is not only the atmosphere we
choose; it's the cornerstone of our democracy.
It is not without irony that the 45-year-old ''Lolita'' was
one of the most banned novels of its
time when Nabokov's publisher in the United States argued,
on First Amendment grounds,
that the book should be published. The settlement over
''Lo's Diary'' is a good outcome.
Dmitri Nabokov won because he feels he helped protect his
father's reputation and memory.
Pia Pera won the right to have her book, previously stopped
in England, France and the
United States, finally available here. And, most important,
readers win because they can read
''Lo's Diary'' and decide the issue for themselves.
Martin Garbus, a lawyer with the firm of Frankfurt, Garbus,
Klein & Selz, is the author of
a memoir, ''Tough Talk.''
Is it good or bad for literature that ''Lo's Diary'' will
finally see the light of day? A
reimagining of Vladimir Nabokov's ''Lolita'' from
Lolita's point of view, the novel, by Pia
Pera, comes out next month after narrowly avoiding an
expensive and divisive lawsuit.
''Lo's Diary'' was originally published in Italy in 1995,
but it was not until Farrar, Straus &
Giroux announced plans for an English-language translation
last year that Dmitri Nabokov,
the author's son, sued. He claimed copyright infringement,
maintaining that Pera's novel
borrowed unacceptably from ''Lolita,'' that fewer people
would buy Nabokov's masterpiece as
a result, and thus that the new novel would ''inflict
immeasurable losses'' on one of the
''towering literary works of this century.'' Farrar, Straus
backed down, and there the matter
stood until Barney Rosset, head of Foxrock Inc., stepped in.
As the attorney representing
Foxrock, I argued that Pera's work was transformative in
nature, and thus encouraged under
the law. In the end, we worked out an agreement that allowed
Pera to publish her novel in the
United States and Britain, with a preface by Dmitri Nabokov
and half the author's share of
royalties to be donated to PEN. Both sides wanted more, but
each got enough.
What of the issues raised, however? Because the case
never went to court, some troublesome questions of free
speech and property rights remain unresolved. This was
a unique case, and could potentially have ended up
before the Supreme Court, setting a precedent in the
increasingly contentious arena of copyright law. ''Lo's
Diary'' simply doesn't fall into any traditional category
that the law, or literature, is used to dealing with: it's
not
parody or criticism, which don't require permission; it's
not a prequel or a sequel, which do. About half the novel
tells much the same story as Nabokov's work, with the
same characters. But when the story opens, Lolita is
married and living in Paris, and the 85-year-old
''Humbert Guibert'' is retired on the Riviera with a young
wife (''the mulatto daughter of his cook''), where he
plays tennis and correspondence chess. Most
significant, in ''Lo's Diary,'' it is not Humbert but Lolita
who is the seducer; the novel is a first-person narrative
giving her side of the story.
Literature is full of such borrowings; the extent of the
''taking'' varies. In ''Agamemnon,'' Aeschylus took
characters and incidents (but not the whole story) from
Homer, who took the incidents from history. The legend
of Pygmalion became a play by George Bernard Shaw,
which became the show ''My Fair Lady.'' If Homer's
estate sued Aeschylus, or if Pygmalion's author sued
Shaw, I would hope the ancient courts would allow the
works. To take a modern example, Michael
Cunningham's novel ''The Hours'' -- this year's Pulitzer
Prize winner for fiction and a work of unquestioned
originality -- pays homage to Virginia Woolf's ''Mrs.
Dalloway'' and clearly refers to characters and incidents
from that novel.
Yet the analogy that is perhaps most compelling is a musical
one. ''Lo's Diary'' is really a
variation on a theme, defined by Baker's Biographical
Dictionary of Musicians as ''one of a
series of transformations . . . by means of harmonic,
rhythmic and melodic changes and
embellishments.'' Music is replete with examples: Mozart's
variations on Salieri, Gluck and
dozens of others; Beethoven on Diabelli, Paganini on Haydn,
John Corigliano on Beethoven.
In contemporary music, the practice of using words and
melodies from original songs has
been upheld by the Supreme Court, as in the 1994 case of 2
Live Crew's hip-hop parody of
the Roy Orbison song ''Oh, Pretty Woman.''
The question of influence and attribution has also
frequently been dealt with in the art world.
Forgery is not allowable; nearly any other interpretation
is. To mention only a handful of
New York painters, James Rosenquist borrows a section of
Picasso's ''Guernica'' and
incorporates it into his very large canvas ''The Swimmer and
the Economist''; Roy
Lichtenstein's paintings feature his renderings of Matisse,
Picasso and Leger along with the
comic strip artists he admired, and Milton Glaser has done
his own interpretations of Piero
della Francesca's work.
Yet in 1992 a Federal appeals court in New York dealt the
art world an unusual setback, ruling
that one of Jeff Koons's ceramic sculptures was a rip-off
(the legal term is copyright
infringement). Koons had based the sculpture, painted in his
garishly colored style, on a
greeting card photograph by Art Rogers of a smiling American
husband-and-wife team
holding eight puppies. All the courts saw as evidence were
two pictures: one, the
black-and-white photograph on the card, and two, a
photograph of the sculpture exactly the
same size.
The appeals court, in describing the Rogers photograph, saw
what it wanted to see: ''a typical
American scene -- a smiling husband and wife holding a
litter of charming puppies.'' But what
Koons saw was totally different. He saw sentimentality,
inanity and kitsch. When he blew up
the image to larger than life size, stuck daisies in the
hair of the sickly sweet smiling couple
(the flowers were not in the photograph) and painted the
finished ceramic, the sculpture
acquired a horrific quality quite distinct from the
original.
Should the courts make judgments on the basis of the quality
of the art or the legitimacy of
the artist, as I think they did in the Koons case (though
they would deny it)? It's a dangerous
business. The decision might well have gone the other way if
the artist had been someone
other than Koons, who graduated from hawking securities on
Wall Street to peddling
sculptures depicting himself and his wife, a former porn
star turned member of the Italian
Parliament, engaged in explicit sex acts. In the case of Pia
Pera, who has a doctorate in
Russian and has written extensively on Russian literature
and translated Pushkin, Herzen and
Lermontov, should her background make a legal difference?
What if her novel gets bad
reviews? In my opinion, none of these matters are relevant.
The courts decide issues of creative license only because
someone must. Yet many judges
with whom I am acquainted know very little about new forms
of art, music and literature --
and still less about where creativity comes from. Most have
traditional rather than
experimental tastes; they generally do not go to the Venice
Biennale, film festivals in
Amsterdam or to theater in Chelsea or the Lower East Side.
Yet in an era of corporate consolidation and the growth of
commerce on the Internet, the
conflict between ownership and free speech will no doubt
increasingly bedevil the courts.
Media giants often believe their interest is more on the
side of protecting copyright than
granting permission for unrestrained creativity, for these
are substantial financial assets we are
talking about. In a world of media clutter, the use of
symbols, images and icons -- the
phenomenon of ''brand-naming'' -- means instant recognition.
Issues of who owns what
image will become increasingly fraught. To take just one
example, we all agree that
duplicating a copyrighted picture is not a creative act, and
the copyright holder can object to
the sale of the copy. But what if a photograph is digitized
and slightly altered in the process?
Does that mean the digitized photo, created with a totally
different technology, is a new
creative work? In the Koons case, the court found it
significant that Jeff Koons contracted out
the actual making of the ceramic -- his hands never touched
the work -- and that the Rogers
photograph was not ''iconic.'' Andy Warhol, on the other
hand, colored his Marilyn Monroe
series himself; the original image was taken from the
newspaper. Does that make his work
more original than Koons's?
The ''Lo's Diary'' dispute is a tiny part of a much larger
debate. How do you balance free
speech against property rights? How do you encourage the
artist to feel free to be fully
creative? Marsilio, Pia Pera's Italian publisher, and Dmitri
Nabokov settled because the law is
unclear. Neither side could safely predict it would win, and
the costs could be extraordinary.
But the law needs further clarity for authors, publishers,
readers and the First Amendment.
My views are very much informed by two conversations I had,
a decade and two continents
apart -- first with Andrei Sakharov, the scientist and
dissident, in Moscow, and the second
with James D. Watson, one of the discoverers of DNA (and the
author of the acclaimed
''Double Helix''), in Cold Spring Harbor, N.Y. They both
talked about the pre-eminence of
American creativity in science and technology, and they both
tied it to the First Amendment;
in this country, you can think anything, you can imagine
anything, and you can say
everything. There are not many limits to our creativity, in
any field, and we are less rule-bound
and freer to create our own world than any other nation.
This is not only the atmosphere we
choose; it's the cornerstone of our democracy.
It is not without irony that the 45-year-old ''Lolita'' was
one of the most banned novels of its
time when Nabokov's publisher in the United States argued,
on First Amendment grounds,
that the book should be published. The settlement over
''Lo's Diary'' is a good outcome.
Dmitri Nabokov won because he feels he helped protect his
father's reputation and memory.
Pia Pera won the right to have her book, previously stopped
in England, France and the
United States, finally available here. And, most important,
readers win because they can read
''Lo's Diary'' and decide the issue for themselves.
Martin Garbus, a lawyer with the firm of Frankfurt, Garbus,
Klein & Selz, is the author of
a memoir, ''Tough Talk.''