Steal a Character, Pay the Piper
Interesting story in the New York Times today: "The Strange Case of the Spoofer Captured by a Spoof"
"As a comedian, actor and satirist, Chris Elliott has made a career out of blurring the line between truth and absurdity. As a novelist, he has unintentionally fuzzied things further by falling for an online spoof and incorporating a fictional robot into his book as a historical figure.
"Now, Mr. Elliott finds himself in a comic nightmare, bending over backward to avoid being accused of a comedian's cardinal sin - lifting someone else's joke - and agreeing to a financial settlement with the robot's creator to head off potential litigation."
Read the rest (free registration required)
Here's the issue: the book in question, "The Shroud of the Thwacker," (Miramax Books, Oct. 2005) is a spoof on period mysteries, but it incorporates a supposedly historical character called "Boilerplate."
Unfortunately for Elliott, Boilerplate is a fictional character created by illustrator and graphic novelist Paul Guinan.
Does this sound familiar?
To readers of this blog it should. It's part of the grounds for my beef with Random House and Sony. How many hundreds of similarities must there be between two characters before infringement can be found?
Certainly the HBHG folks will be looking at this one as well.
"As a comedian, actor and satirist, Chris Elliott has made a career out of blurring the line between truth and absurdity. As a novelist, he has unintentionally fuzzied things further by falling for an online spoof and incorporating a fictional robot into his book as a historical figure.
"Now, Mr. Elliott finds himself in a comic nightmare, bending over backward to avoid being accused of a comedian's cardinal sin - lifting someone else's joke - and agreeing to a financial settlement with the robot's creator to head off potential litigation."
Read the rest (free registration required)
Here's the issue: the book in question, "The Shroud of the Thwacker," (Miramax Books, Oct. 2005) is a spoof on period mysteries, but it incorporates a supposedly historical character called "Boilerplate."
Unfortunately for Elliott, Boilerplate is a fictional character created by illustrator and graphic novelist Paul Guinan.
Does this sound familiar?
To readers of this blog it should. It's part of the grounds for my beef with Random House and Sony. How many hundreds of similarities must there be between two characters before infringement can be found?
Certainly the HBHG folks will be looking at this one as well.
posted by Lewis Perdue at 8:10 AM
12 Comments:
Interesting but still no direct parallel. Brown would have had to use the same names instead of anagrams.
Actually, the direct parallel would be the "facts" in HBHG that were really NOT facts ... the history that was fiction (as expressed by the authors of HBHG) that turned up in Code.
Lot's of splog hitting you Lew. Once they create the theory, that's not the same as a character such as Boilerplate. That's the real hitch in all of this as I see it. It seems they need identical copying including the name, much like fanfiction does, (which is why they're vulnerable at the whim of the author and owner) to make the charge stick. It may be possible to get past this.
At least HBHG gets a trial to sort it out.
The Boilerplate affair also shows what two reasonable people can do to work things out rather than going nuclear as Random House did by calling out the legal sharks as their first move.
Had Brown actually created his own secret society for the story, it would be different. There are twists he could have pulled, like use the name of the Priory of Scion but give it a slightly different history (after all, this was supposed to be a "fiction" novel) than the HBHG authors did. Names and titles can't be CR'd so he was safe there, but it's the entire structure that's the key, and he put name and structure together and tried to call it his own.
I can lay out a somewhat parallel scenario but unfortunately can't give names for knowing at least one of the parties involved:
Historical author and producer writes a book in which he uncovers new research and presents a theory previously unaccepted by history on a certain figure. He later becomes a consultant to another producer for a TV series. Producer number 2 is intrigued by the new information, but decides not to use it even though it's probably closer to the truth than the story history accepts. Instead he goes with the old history so that he doesn't have to pay more to the consultant for using his expression in the series.
That's basically what's going on here with Brown and HBHG, only Brown took the info and ran with it. Had he contacted the authors to begin with and consulted them, or reached a previous agreement with permission to use their architechture, the HBHG trial wouldn't be happening now. Instead, he figured the "wink-wink-nudge-nudge" method with the anagrams giving a nod to the authors would be acceptable, but it sounds now like they were rather insulted.
Yes ... you have it well described.
Oddly, all I wanted was a wink-wink, nudge-nudge or some sort of acknowledgement like that.
If random House had had the decency, good manners or just good sense to have a conversation, all of thids would have ended more than two years ago.
Sure he just novelized their theory, but I predict it will be thrown out. The anagrams alone will be enough to make it original.
"No plagiarist can excuse the wrong by showing how much of his work he did not pirate." -- Mr. Justice Learned Hand
The anagrams were never really an issue. It's the structure primarily based around the Priory theme, not the names involved.
Also, on the situation with the UK courts. . . the majority of the HBHG authors being Brits, their whole thesis was not anything new to UK audiences when Code came out; Brown's book was hardly a shocking "revelation" across the pond, so the courts there may look at it differently.
I'm afraid there's just no evidence to date of this being the case although there may be at some point. Without actual text copying, infringment is never successful. That's what everyone is up against here.
And then you have Opus Dei, also real and the rest of it thrown into the soup. Borrowing nonfictional themes even if incorrect is still allowable. You don't have to cite sources in a novel. Using others fictional ones will get you every time, but they have to be exactly the same as I see it based on the research.
None of this may be fair, but as someone told me when I bitched about my book being preempted by an author who just happened to have had the chance to see my manuscript and research, a key element with an unpublished book, this wouldn't be the first time someone else harvested an already plowed field.
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