Frolic of His Own (30 page)

A Yes, all right.

Q In this vein do you recall making the distinction between protection for the expression and for the idea unless the idea is copied in a vulgar and demeaning way, when it becomes an abuse?

A Yes.

Q I am directing the witness's attention to Defendants' Exhibit 29. Will you read it please?

(Document marked Defendants' Exhibit 29 for identification as of this date.)

A Starting where, ‘as he was sitting among them . . . '

Q To yourself please.

A I've read it.

Q Will you identify it for the record?

A Of course, yes. Yes, it's the story Glaucon tells of the shepherd Gyges in the second book of the Republic.

Q And?

A Well he's obviously, Gyges is obviously a rather low ignorant type who stumbles on a dead body in some pretty bizarre circumstances, he takes a gold ring off the dead man's finger and by accident discovers it can make him invisible, and it goes on from there to describe his adventures, his rise to power using this new, this stratagem.

Q And is Plato just telling us a story here? A sort of Arabian Nights Entertainment?

A Of course not, no. He's placing the perfectly unjust man beside the just man in his nobleness and simplicity as Aeschylus says wishing to be and not to seem good. That's Plato quoting Aeschylus and I'm quoting Plato, what's the difference?

Q The difference is exactly why we're here. Plato attributes the idea and the words to Aeschylus whom he names, whereas you have simply lifted them from Plato without ascribing them to anyone the way you've done elsewhere I might add, Camus and Rousseau and I don't know who else, now may we get on with this? Glaucon's story is employed as an expression of this idea, is that correct?

A In expressing it, yes.

Q But you are not claiming property rights in an idea then, are you?

A In certain ideas yes, when I'm talking about ideas I'm talking about art.

Q Let's take that out. We're talking about an actual thing.

A I'm talking about work, you can't divide a work of art, the idea from the technique that expresses it.

Q Well that's exactly what you're going to have to do in a court of law. The idea is an abstract form and that's not what we're here to talk about. We're here to talk about your play and I direct your attention to Defendants' Exhibit 30. Will you identify it please?

(Document marked Defendants' Exhibit 30 for identification as of this date.)

A It's, yes it's from the second act of my play, the third scene. It's a dialogue between Mr. Kane and a character named Bagby. Mr. Bagby.

Q I would like it read into the record please.

B
AGBY

And why not? An't they close enough to doing it now? And do you think they keep from injustice by preference, then?

K
ANE

(VEHEMENTLY)

I do!

B
AGBY

Ah . . . ! And that they practice justice willingly? No, only let both of them do what they like, and you will catch your just man in the act. It's only the law that keeps him to fair dealing.

K
ANE

The law . . .

B
AGBY

Yes and what is the law but a thing got up by them that fear suffering injustice, and not
them that fear doing it. No, I heard a story told once of a man that found a gold ring upon a dead body, and as he wore it one evening with friends he happened to turn it upon his finger, as nervous people may do. And no sooner had he done this, than he was invisible, and his friends spoke of him as if he was gone. He found that when he turned it outward he was visible again, and turned inward no one could see him. So he got a job as the king's messenger, and with this new dodge of his he soon humped the king's wife, and before you know it he'd killed the king and seized the empire . . . There, with a ring such as that, now, who could keep from taking what he liked wherever he found it, walking into anyone's house and humping whoever he found there, and setting free from prison any man he might choose . . . Why, with two such rings, for your just man and the unjust, you could not tell them apart . . .

Q There is no question here of a passage from Plato being copied into your own work in slightly altered form, is that correct?

A Yes, the . . .

Q And as a result of these alterations, the idea has been copied in a vulgar and demeaning way, do you agree?

MR. BASIE: Wait, I'm sorry, but . . .

MR. MADHAR PAI: Do you have an objection?

MR. BASIE: Yes.

MR. MADHAR PAI: I won't have any more of this, Harold. You have made your objection and I am going to proceed with this examination.

Q Do you, or do you not, find the term humping a crude and vulgar term to denote sexual activity?

A I, yes that's what I . . .

Q I'd like you to simply answer my questions without these rambling digressions. In the passage
from Plato which we have just reviewed, the translator has employed such phrases as he seduced the queen, and lie with anyone at his pleasure, to convey these activities, am I correct?

A Yes.

Q Activities which in your own rendering of the passage take the form of humping, am I correct?

A I, yes.

Q Now you stated earlier, did you not, your belief that an idea is protected in its expression against being copied in a vulgar and demeaning way?

A What I meant was . . .

Q Please answer the question. Was that your statement or not?

A Yes.

Q And that you find the word ‘humping' a crude and vulgar term?

A Yes but . . .

Q So on the one hand you would enjoin Joe Blow from presenting what you consider a crude, vulgar, demeaning expression of an idea which you feel you have made your own, exalting it to a protected status through your own unique artistic expression, while on the other hand you have no hesitation at all in offering us a parable from one of the greatest minds in western history dressed in this manifestly crude, vulgar and hence debased version, with the temerity to label it homage into the bargain. Am I correct?

A . . .

Q I didn't hear your answer. Will you repeat it please?

A That's not what I meant.

Q I want an answer to the question.

A It's nearer to parody, this passage.

Q Did you understand the question? I said parable, not parody.

MR. BASIE: He's free to characterize it however he wants to.

MR. MADHAR PAI: Are you objecting? I want an answer to my question.

MR. BASIE: You asking him to characterize it as homage?

MR. MADHAR PAI: I am not asking him to characterize it as anything.

Q If you don't understand the question, say you don't. If you don't know the answer, say I don't know.

A I don't know.

Q Will you explain why it is that you don't know?

A It has to do with the subject matter, with the character. Will you let me explain?

Q I wish you would.

A Well, you see the character Gyges in Plato's story, this story told by Glaucon that is, Gyges is a crude unlettered shepherd, earthy, greedy, sly, fundamentally dishonest like the character Bagby, Mr. Bagby in the play, so he uses vulgar language. It's as if Gyges were telling his story himself instead of Glaucon, he'd use vulgar language, so it's not me using vulgar language, it's Bagby. The character Bagby.

Q Did you understand the question?

A We're talking about characters defined through their dialogue, aren't we? The three levels, from good men to bad, it's all right there in the Poetics. They're either above our level of goodness like the characters of Homer, like my character Mr. Kane, or about our own level, that's the hero the audience identifies with here, or beneath it like Bagby, Mr. Bagby, who's beneath our level of goodness like the characters of Nicochares, who wrote the Iliad . . .

Q We are stopping short of response here. I believe you have strayed into Aristotle, and this is not the lecture hall. We are here to talk about your play, whether it's Defendants' 1 or 6, and the way you have seen it purloined or made substantially similar or even debased in the work of another, and on the point of what you like and don't like, what you find actionable or not actionable, I ask you again, do you understand the question?

A Well it's not the same thing, you talk about debasing someone's work with that one short passage from the Republic, if you look at the play, at the whole last act of the play? The scene with Kane in prison condemned to death when Thomas is trying to talk him into saving himself, it's the Crito isn't it? Right out of the Crito? And there's nothing debased about . . .

Q Did you ever have a discussion with anyone with respect to the subject matter of the lawsuit?

MR. BASIE: What does the subject matter mean?

Q Do you understand my question?

A Well I ask the same question, what does subject matter mean?

Q I am not inclined to answer your questions, Mr. Crease. Do you understand my question?

A I wanted a clarification from you.

MR. BASIE: I think we all know that Mr. Crease has not seen the movie.

MR. MADHAR PAI: I don't think that precludes his answering, but if you do, Mr. Basie, then he doesn't know. I'm sure he has been advised what the movie is about. If he hasn't, and you brought a lawsuit . . .

Q So that before you started the lawsuit, you personally made no investigation of what was actually portrayed in the film itself?

A I read some reviews.

Q Reviews customarily refrain from telling the ending, giving away the story so to speak. Was that the case here?

A I don't know.

Q So accordingly you really have had no way to know whether or not the scene, this last act scene you've just cited, whether it or even some character in your play actually occurs in the film?

MR. BASIE: I don't think you can defend an infringement on the grounds of what was not stolen.

MR. MADHAR PAI: Please don't interrupt. Will you read it back?

(Question is read.)

A No.

Q So that all you claim are certain similarities you have come upon at second hand, is that correct?

A That's what I'm talking about. I haven't finished.

Q I want you to finish.

MR. BASIE: I am sorry, he can't possibly finish. Not in these time limits.

MR. MADHAR PAI: He will have as much time as he likes.

MR. BASIE: He can answer that question only subject to later supplementation.

MR. MADHAR PAI: Is that because you want to talk to him before he goes on or because there isn't enough time, Mr. Basie?

MR. BASIE: Because there are some similarities here that he is . . .

MR. MADHAR PAI: Are you testifying, Mr. Basie?

MR. BASIE: You asked me a question. I am giving you the reason.

MR. MADHAR PAI: No, I didn't.

MR. BASIE: You asked me, is that because, and you were looking straight at me.

MR. MADHAR PAI: I meant the question which preceded it. Settle down.

MR. BASIE: Why should I settle down? You look at me and ask a question, when I start to answer you . . .

MR. MADHAR PAI: Why get excited?

MR. BASIE: It's the truth, though, isn't that exactly what happened?

MR. MADHAR PAI: I did speak to you, the preceding question was to your client.

MR. BASIE: I was objecting to it.

MR. MADHAR PAI: He didn't tell me he didn't have enough time. I thought he was the one under oath here. He said he wasn't finished.

Q I said I would like you to finish. Go ahead.

MR. BASIE: I am saying that he cannot be bound by what he says at this deposition
as to the question of similarities between the play and the movie.

MR. MADHAR PAI: What is the reason for that?

MR. BASIE: Because there are so many that it's very easy for him to miss a few. If you are asking him to tell you every similarity that exists . . .

MR. MADHAR PAI: I am.

MR. BASIE: I will instruct him not to answer. My objection was simply that I believe you used the word ‘claim.'

MR. MADHAR PAI: Your problem was that I stated it in terms of something that had not yet been proven in the case?

MR. BASIE: No, in terms of something that would be his contention, claim.

MR. MADHAR PAI: As opposed to that which is deposited?

MR. BASIE: As opposed to that which merely asks him about what he recalls at present.

Q Would you tell us, then, what . . .

MR. BASIE: In other words, when you use the word ‘claim,' it sounds like an attempt to, or maybe I misinterpreted it as an attempt to limit his further testimony, something which comes later in the litigation.

MR. MADHAR PAI: The record comprehensively reflects our respective positions, in my view. You felt that Mr. Crease should be at liberty until the moment the trial closes to add to his list of similarities, I thought.

MR. BASIE: No, sir.

MR. MADHAR PAI: Then I did misunderstand you.

MR. BASIE: No. There is a later stage. Very often it is pretrial conference.

MR. MADHAR PAI
: Up to that point then?

MR. BASIE: Yes.

MR. MADHAR PAI: I respectfully ask that he turn his attention to the task now and
do it now, and you said to that, you directed him not to answer.

MR. BASIE: Yes. But only so as not to limit his testimony at the trial to what he . . .

A This may be a reason to postpone because I am getting tired.

Q We will stop right now. I would just like to know if there are any other forms of damage that you wish to have redressed in this lawsuit that we haven't heard from you about?

A Well it's both things, I tried to explain, on the one hand it's taking the, it's the theft of my play without giving me credit and on the other what offends me is when my work is, when vulgarity and grossness and stupidity debase my work.

Q What sum of money do you seek for that?