The Paper Dragon (58 page)

"I'm not troubled, Mr. Willow. I'm merely very interested in what you're saying."

"Very what?" McIntyre asked.

"Interested, your Honor."

"Well, you looked extremely troubled there for a moment," Willow said. "I'll be happy to find the testimony if…"

"He doesn't look at all troubled to me, Mr. Willow," McIntyre said, "but I would like the exact page in the transcript if you have it."

Willow accepted the transcript from his assistant, leafed through it, and said, "It's on page 89, your Honor. This is Mr. Constantine's testimony. 'Question: Do you think they were rarities? Answer: No. Question: They were commonplace? Answer: They were to be found everywhere in the Army.' " Willow looked up from the transcript and said, "You understand, your Honor, that these questions and answers are referring to men using obscene language."

"Yes, I understand that."

"And later, on page 92, I asked Mr. Constantine. 'Yet you still maintain that your character's use of obscenity is unique?' and he replied, 'It is unique, yes.' That's an indication of what we're being asked to accept in this courtroom, your Honor. These clear admissions that the so-called similarities between the two works are really based on common material, and then the stubborn insistence that one work was nonetheless copied from the other. Well, your Honor, that soldier is
not
unique, and we
know
he is not unique. We know, in fact, that a soldier such as this is undoubtedly a commonplace, and it would be very easy to find against the plaintiff on the grounds that the material he claims was copied is not copyrightable material. That would be perfectly reasonable finding, your Honor, except that it would leave a stain on Mr. Driscoll's character, it would leave a stigma on his career. Such a finding would indicate that he
did
copy from another man, but only material that was in the public domain. And that would be a terrible injustice, your Honor. I ask you, therefore, to consider this in your decision, because I believe with all my heart that James Driscoll has done nothing to warrant this charge of plagiarism. James Driscoll is an artist, your Honor, who wrote a fine book in his own manner and using his own resources. For this, your Honor, we owe him only respect and gratitude."

The courtroom was silent. In the silence, Driscoll looked at Willow, and again knew without doubt that the lawyer had been mouthing words he did not believe. Willow returned the look, and then walked slowly back toward the defense table. Genitori, dressed in his customary pinstriped suit, had already risen, prepared text in hand, and was walking toward the bench. He smiled briefly at no one, cleared his throat, and said, "If your Honor please, concerning the first cause of action against Artists-Producers-International, I can say nothing that Mr. Willow has not already said, and I ask that his argument be adopted as my own. With respect to the cause of action claiming independent infringement, however, I would like to call your Honor's attention to page 127 of the transcript, where I moved for dismissal and assumed arguendo…"

Driscoll stopped listening. He was disturbed by what he had detected in Willow's manner, but Ebie's sudden agitation concerned him even more. He knew that she too had sensed the hollowness of Willow's praise — there had never been a time when they both did not react identically and simultaneously to any given stimulus — and he was now troubled to see her fingers working nervously on her handbag, fastening and unfastening — the clasp, a small deadly click punctuating Genitori's words, "spend this Court's time in repeating it now," click, "later called Ralph Knowles to the stand," click, "respected and honored director," click, "inconceivable to imagine he had the slightest need for copying any of the plaintiff's paltry work," click.

He did not know what Ebie would do, or even what she
could
do now that the case was officially closed and the arguments begun. He knew only that she was unpredictable, had always been unpredictable, and that she had openly threatened him only the night before. He knew, moreover, and this was what troubled him most, that she was the kind of woman who moved swiftly and directly once she had decided on a course of action. He had learned that in 1950, had learned it once and for all time, and he watched her nervous hands now as they worked the clasp, knowing that her mind was churning with possibilities, listening to each small click with rising anticipaton, "… the defendant API quite properly replied, Yes, Mr. Edelson and Miss Blake had indeed worked as story editors on those dates," click, "but for the
studio
, you understand," click, "and not in connection with
The Paper Dragon
, which possibility Mr. Knowles put to rout forever when he testified in simple, forceful English that neither Mr. Edelson nor Miss Blake had anything
whatever
to do with the production of his movie," click.

Genitori nodded, and then consulted his text once again, and then said to McIntyre, "I therefore ask you to find, your Honor, that Mr. Ralph Knowles did not see or read the play
Catchpole
before writing his movie, that the motion picture
The Paper Dragon
was written and produced independently of that play, and that the claim against Artists-Producers-International should be dismissed. Thank you, your Honor."

Sidney Brackman took a long while getting up from his chair and then moving past Constantine and around the plaintiff's table and into the aisle, where he walked slowly to the front of the courtroom. He turned to look first at Willow, and then at Genitori, and then he looked up at McIntyre and said, "Your Honor, I have been practicing law for twenty-two years now, but there's always something new to learn, I guess. Mr. Willow pointed out to me today, just a few minutes ago, that it was my duty as a lawyer to prevent a witness from giving testimony while he was on the stand under oath. Mr. Willow seems to feel that I permitted testimony which was at best questionable, but I would like to say that Mr. Constantine was
never
asked about preview performances at any time during the pretrial examinations. I can assure Mr. Willow that had the question been asked, it would have been answered honestly, the same way Mr. Constantine has answered every question put to him since this suit began. If Mr. Willow did not think to ask about any performances other than those on Broadway, I do not see why his oversight should then become a reflection on my integrity."

"I assure you, Mr. Brackman, that your integrity is unquestioned," McIntyre said.

"Thank you, your Honor. Thank you, and forgive me for taking the Court's time to clear up this seemingly insignificant matter, but it was important to me."

"I understand."

"Thank you. Mr. Willow has also commented on the scarcity of claimed similarities between
Catchpole
and
The Paper Dragon
, pointing out to your Honor that most plagiarism cases will have two hundred, or three hundred, or even four hundred claimed similarities. He also stated that most of these cases were lost by the plaintiff, and I would like to suggest that it was the very weight of the similarities that helped to defeat these claims. When there are so many, your Honor, when every word and every comma becomes a matter for debate, well, obviously the plaintiff is stretching the truth, obviously he is predicating much of his case on sheer imagination. We have not done that here, your Honor. We have claimed only similarities that are plain for all to see. Some of them are less important than others, yes, but they are all pertinent. They are all pertinent because they show that there was copying, and without copying there can be no charge of plagiarism."

"Excuse me one moment, Mr. Brackman," McIntyre said, "but is it your belief that Mr. Driscoll
saw
this play?"

"Your Honor, I know that Mr. Driscoll is now a highly respected writer, and I know that he has been acclaimed as a literary phenomenon, and I know that his novel is still being dissected in the literary journals and, for all I know, being taught in colleges and universities all across these United States of ours. But, your Honor, he was
not
highly respected before he wrote
The Paper Dragon
, he was
not
being lionized, he was in fact totally unknown. By his own admission, he had written only a few unpublished short stories before writing the novel, and he has written
nothing
since. The only reason for his reputation now, in fact, is that he stole another man's work."

"Mr. Brackman, do you think he saw the play?"

"I think he was in possession of it."

"Of what? The play?"

"I think he was in possession of the plaintiff's play, yes."

"Before he wrote his novel?"

"Before he wrote his novel, and perhaps while he was writing his novel."

"I see."

"Your Honor, the evidence cannot show otherwise. Mr. Willow took the time and trouble to amass a great deluge of trivia, a landslide of outlines and letters and maps and what-have-you, but what do these prove? If we believe Mr. Driscoll, then indeed all these collected scraps of paper were the result of personal work habits, and show that he was a diligent man with perhaps an eye on future historians, keeping as it were his own personal time capsule for posterity. But if we do
not
believe Mr. Driscoll, then he was only a clever thief seeking to hide his plagiarism by constructing a supporting body of evidence to substantiate a claim of independent creation."

"I don't wish to interrupt your argument further," McIntyre said, "but I would still like to know whether it is your belief that Mr. Driscoll actually
saw
this play. A minute ago—"

"I don't understand, your Honor."

"Well, you said you thought he possessed a copy of it."

"Yes."

"Do you think he
saw
it as well?"

"Do you mean in performance?"

"Yes," McIntyre said. "Do you think he saw the play on the stage?"

"I don't know."

"Very well."

"He says he did not, your Honor, he has testified to that. He has also testified that he never saw a copy of this play until, when was it, several weeks ago, when Mr. Willow gave him one to read. How then can we explain these similarities — and there are, if your Honor please, exactly twenty-six of them, plus of course the six that were found to exist only between the play and the movie. How do we explain twenty-six concrete and specific similarities between the play
Catchpole
and the novel
The Paper Dragon
unless Mr. Driscoll had access to this play, unless—"

"Mr. Brackman," McIntyre interrupted, "you said earlier that some of these similarities were less important than others. I would—"

"But all pertinent, your Honor. We've set them forth in our brief, and I think we've covered them extensively over the past several days. I certainly don't want to weary you with them again, unless you wish me to do so."

"I merely wanted to know which ones you consider important."

"They are
all
important, your Honor, they are
all
pertinent, including those we concede to be minor. For example, your Honor, we claim that there is a similarity of plot, and then we go on to show exactly how and where the plots are similar, even
identical
in some places. Well, Mr. Willow in his summation said that a plot cannot be copyrighted, and yet one of the cases Mr. Genitori cites in his brief—"

"Yes, Mr. Brackman, I don't think we need belabor the point. If two works have identical plots, even though 'plot' per se is not copyrightable, this would certainly be evidence of copying. Don't you agree, Mr. Willow?"

"Yes, your Honor,
if
the plots were identical."

"Or significantly similar," McIntyre said, and then paused. "Or inexplicably so."

"Yes, your Honor," Willow said.

"So let's not belabor the point."

"By the same token, your Honor," Brackman said, "my opponent has gone to great lengths to show that many of the incidents and events and characters, much of the language, the settings and so forth used in the novel are there only because it happens to be a novel about the United States Army. He says, in effect, that
any
novel about the United States Army,
any
play about the United States Army would necessarily have sergeants in it, or obscenity, or barracks, or what have you. All right, we concede this. Where there's an army, there are necessarily men in uniform, and there are rifles, and battlefields, and enemy soldiers, and wounded men, and nurses, all right, let us say
all
of these things are in the public domain. Nonetheless, your Honor, even material in the public domain may be so combined or compiled as to be copyrightable."

"Yes, I know that, Mr. Brackman. But while we're on this point, I'd like to ask another question. Neither you nor Mr. Willow have said a word about the
differences
between the play and the book, but it strikes me that there are tremendous dissimilarities, and I wonder now whether we shouldn't concern ourselves with these as well. I wonder, in fact, whether we are not
dutybound
to study these dissimilarities in trying to determine whether there was indeed any copying here."

"If your Honor please," Brackman said, "the plaintiff's b-b-b-burden would be to prove th-that the similarities, and not the
dis
similarities, are so overwhelming that, your Honor, that there are enough of them to support a claim of plagiarism."

"Yes, but Mr. Willow admitted for the purposes of argument that even if all these alleged similarities were indeed copied, they would still add up to something too insignificant to be called plagiarism. Wasn't that his point?" "I believe that was his point," Brackman said. "Isn't that the point you made, Mr. Willow?" "It was one of my points, yes, your Honor." "Your Honor," Brackman said, "I do not believe
any
of these similarities are insignificant, nor do I believe someone can be guilty of just a little plagiarism, in much the same way a woman cannot possibly be just a little pregnant. How many of these similarities need we show before we recognize they cannot all be accidental? How else can we hope to prove plagiarism except by putting the works side by side and saying this corresponds to this, and that corresponds to that? Will the thief oblige us by admitting his theft? Of course not. So how else can we prove this theft, your Honor, except by comparing the works, by locating these seemingly unimportant and insignificant similarities, these so-called coincidences scattered throughout the work, and appearing far too often to be called coincidental? How else, your Honor? By inspecting what is
dissimilar
, as you have suggested? Would this support our claim? No, your Honor. It would only indicate that the work was not copied in its entirety, and that is
not
what we have claimed, nor is it what we have proved here in this Court. We have only proved that
enough
of it was copied to significantly deprive the plaintiff of his rights.