Michael Kaufman of the New York Times wrote a wonderful obituary of Polish journalist Ryszard Kapuscinski on January 24th. Kapuscinski, who was 74 when he died, had a day job (of over 40 years), of gathering information about conflicts throughout the world and reporting them for a Polish news agency. His reports, for which he never took notes using instead his memory "to stimulate his poetic imagination," were, not surprisingly, "often tinged with magical realism." Kapuscinski himself wrote: "Its what surrounds the story. The climate, the atmosphere of the street, the feeling of the people, the gossip of the town; the smell; the thousands and thousands of elements that are part of the events you read about in 600 words of your morning paper."
In copyright cases involving new reporting, one frequently encounters the claim that "news" is not copyrightable. Of course, the facts of an event -- The Emperor Haile Selassie (born Tafari Makonnen) death on August 27, 1975 -- aren't protectible, but descriptions of the event and life at Selassie's court are. (See Kapuscinki's great 1978 book "The Emperor"). The issue arose in Harper & Row, Publisher, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), where the late President Gerald Ford sought to protect his "word portraits" of the Nixon pardon and other historical events.
Historians have gone even further, being quite skeptical about the idea that facts are merely discovered. Carl Becker, writing in 1910, quipped: “The witty remark of Dumas, that Lamartine had raised history to the dignity of romance, would have appealed to Thomas Buckley who was much occupied with reducing it to the level of a science.” History as literature was the dominant view until this time, and the “scientific” view of history was short-lived. Some historians were quite blunt about their disdain for objectivity. George Macaulay Trevelyan (1876-1962), great-nephew of the great Whig historian Thomas Macaulay, wrote in an essay called “Bias in History” that his own three books on the Italian leader Garibaldi, (written 1907-1911), were “reeking with bias,” and that “Without bias, I should never have written them at all. For I was moved to write them by a poetical sympathy with the passions of the Italian patriots of the period, which I retrospectively shared.”
Kapuscinki's writings were less about political sympathy and more about the use of metaphor and allegory to cut to the soul of the matter. This point is illustrated in a oft-told story about his winning of Poland's Golden Cross of Merit. Kapuscinki had written an article about the poor treatment of steel workers at a plant near Krakow that had been extolled as showpiece of protelarian culture. His account caused his firing under government pressure. After a blue-ribbon panel was appointed to look into the matter, Kapuscinki's story was vindicated, and he received the aforementioned award. Now that's magical realism.
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The issue arose in Harper & Row, Publisher, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), where the late President Gerald Ford sought to protect his "word portraits" of the Nixon pardon and other historical events.
But didn't the Nation case involve a very special situation in which the magazine scooped the publisher, quoting what might otherwise be a fair portion in the context of, say, a critical review, of a yet unpublished work about which Ford and the publisher had a confidentiality agreement? The discussion of "word portraits" occurs in the context of the Court's preliminary account of the rationale of copyright, namely, "The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors." Ford's labor, fostered by the statutory scheme, so claims the Court, included this verbal portraiture. The Court wasn't directly concerned with the idea (or fact)/expression dichotomy at that stage. Later, the opinion makes the larger point of the present post, namely, "Creation of a nonfiction work, even a compilation of pure fact, entails originality."
Despite appearances, I'm not picking nits here over a casual remark in a post obviously aimed at celebrating the literary legacy of a vastly imaginative journalist. I'm interested in the idea/expression dichotomy in the context of a matter involving, say, journalism and fictionalized journalism (or historical fiction). I wonder whether the Nation case has any bearing on more run-of-the-mill disputes, outside of those involving unpublished works and confidentiality agreements.
Dean, Here is a relevant passage from Harper & Row (471 U.S. at 546):
"In preparing the book, Mr. Ford drafted essays and word portraits of public figures and participated in hundreds of taped interviews that were later distilled to chronicle his personal viewpoint. It is evident that the monopoly granted by copyright actively served its intended purpose of including the creation of new material of potential historical value."
Defendant in Harper & Row argued it had only taken news or facts; Ford countered it had taken his personal intepretation of history. If you look at the appendix to the Coourt’s opinion, which contains defendant’s article with highlights of the words copied, I lean toward defendant.
“Historical interpretation” has been used far more broadly by historians to encompass the meaning ascribed to facts, as well as a larger (and from a copyright perspective) protectible narrative. For example, whether there is a neat separation between facts and interpretation is subject to dispute. Robert Berkhofer in Beyond the Great Story: History as Text and Discourse 53 (1995) wrote that “The problem with historical facts, as with histories themselves, is that they are constructions and interpretations of the past. Evidence is not fact until given meaning in accordance with some framework or perspective.”
Berkhofer’s point is that interpretation is based on facts but facts get their meaning through being interpreted, raising the problem of the hermeneutical circle: The plausibility of the general interpretation depends upon the very events it purports to interpret. Similarly, Noël Carroll has written in Interpretation, History and Narrative,” in The History and Narrative Reader 249 (Geoffrey Roberts ed. 2001)that “events, as lived, do not have meanings. They only get meanings by being invested with a function in a narrative.”
The traditional legal view of interpretation is that it only comes into play at the analytical stage: As if marked off by a box labeled “opinion,” the historian’s “interpretation” of the events can be clearly separated out, and in a copyright sense, denied protection.
The theory behind this view of narrative-as-inherent-interpretation is that historians do not find or discover their narrative, but instead construct it. This process of construction involves the deliberate, “imaginative” creation of a coherence that exists only by virtue of the historian. As Judge Posner put it, in Law and Literature 360 (Rev. ed. 1998). “narrative, including the narrative of a life, turns chronology into a story, with a beginning, middle, and end causally related to each other. By doing so it imposes coherence on a sequence of events that may have no coherence.” To the extent that such coherence is original, it is protectible and I think that applies to new stories too.
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