Citation: 115 Harv. L. Rev.

1988 2001-2002
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ORIGINALITY
This Note is about originality. Lawyers know that originality is the
touchstone of copyright law.' But copyright is not the only arena in
which lawyers encounter originality. Analogical reasoning through
precedent is the mark of the lawyer's trade; this practice necessarily
requires negotiating similarity and difference with prior texts and
ideas.
2
Whatever originality the law demands of works seeking copy-
right protection, we wield a rhetoric of unoriginality in our role as ap-
pliers of legal precedent.
3
Law reviews also have distinctive ways of
disciplining and privileging originality in legal scholarship.
4
Could no-
tions of originality - their uses and abuses - form a thread running
through all of these disparate areas in which lawyers produce and
evaluate texts, argue, cite, distinguish, analogize, and refer to the past?
This Note juxtaposes three contexts in which lawyers grapple with
originality: copyright law, precedent-based legal reasoning, and law re-
view publishing. Beyond any normative implications, the project here
is to compare, through selected examples, the dynamics of originality
in each of these contexts. Part I focuses on the literary genre of rewrit-
ing and its recent encounter with copyright law. Part II examines the
interaction of rewriting and originality in one particular instance of
judicial precedent-following. Part III reflects on the relation between
preemption and citation in legal scholarship. In each of these contexts,
originality and unoriginality form two sides of a double-edged sword: a
paradox that derives from the application of lawyerly habits of mind
to the unstable concept of originality. The aim of this Note is to be
suggestive rather than exhaustive, inquisitive rather than conclusive.
1 See, e.g., Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (ig9i) ("The sine qua
non of copyright is originality.").
2 See, e.g., Cass R. Sunstein, On Analogical Reasoning, io6 HARV. L. REV. 741, 745 ('993)
("For analogical reasoning to operate properly, we have to know that A and B are 'relevantly'
similar, and that there are not 'relevant' differences between them. Two cases are always differ-
ent from each other along some-dimensions.").
3 See, e.g., Felix Frankfurter, John Marshall and the Judicial Function, in GOVERNMENT
UNDER LAW 9 (Arthur E. Sutherland ed., 1956) ("As though one should look among even the
greatest of judges for what Holmes called 'originators of transforming thought,' ... had they the
mind of such originators, the bench is not the place for its employment. Transforming thought
implies too great a break with the past, implies too much discontinuity, to be imposed upon soci-
ety by one who is entrusted with enforcing its law."); Richard A. Posner, Legal Scholarship Today,
15 HARV. L. REV. 1314, 1319 (2002) (noting judges' concealment of originality, "the better to em-
phasize continuity with existing law").
4 Compare, e.g., Charles W. Collier, Precedent and Legal Authority: A Critical History, 1988
WIS. L. REV. 771, 8ii ("[L]egal scholarship is authoritative to the extent that it defers to an origi-
nal and is not itself original."), with Philip C. Kissam, The Evaluation of Legal Scholarship, 63
WASH. L. REV. 221, 228 (1988) ("[A] scholarly work must in some sense be original.").
1988
ORIGINALITY
I. ORIGINALITY AND COPYING
A. Literary Rewriting
Recent years have seen a proliferation of literary works - novels,
poems, plays, and films - that self-consciously repeat and refashion
material from our common literary heritage.
s
These works draw, to
various degrees, on preexisting plots, characters, scenes, and text. Re-
writings of canonical texts have become a popular, well-recognized
genre, a standard subject of study in academic literature departments,
6
and a technique employed by the brightest of literary luminaries.
7
5 Among the myriad instances of rewriting (with the works they rewrite indicated in paren-
theses) are: Kathy Acker, Great Expectations (Charles Dickens, Great Expectations); the film
Apocalypse Now (Joseph Conrad, Heart of Darkness); Margaret Atwood, Alias Grace (Char-
lotte Bronte, Jane Eyre); Robert Calasso, Marriage of Cadmus and Harmony (Greek myths); Pe-
ter Carey, Jack Maggs (Dickens, Great Expectations); Francois Ceresa, Cosette, ou le temps
des illusions (Victor Hugo, Les Misfrables); Aim6 Cosaire, A Tempest (Shakespeare, The
Tempest); the film Clueless (Jane Austen, Emma); J.M. Coetzee, Foe (Daniel Defoe, Robinson
Crusoe); Maryse Condd, I, Tituba, Black Witch of Salem (Nathaniel Hawthorne, The Scarlet
Letter, Arthur Miller, The Crucible, and the Afro-American slave narrative); Cond6, Wind-
ward Heights (Emily Brontie, Wuthering Heights); Michael Crichton, Eaters of the Dead
(Beowulj); the film Cruel Intentions (Choderlos de Laclos, Les liaisons dangereuses); Michael
Cunningham, The Hours (Virginia Woolf, Mrs. Dalloway); Margaret Drabble, The Waterfall
(George Eliot, The Mill on the Floss); John Gardner, Grendel (Beowulf; Anthony Hecht's
poem Dover Bitch (Matthew Arnold's poem Dover Beach); Wilson Harris, Palace of the Pea-
cock (Conrad, Heart of Darkness); David Henry Hwang, M. Butterfly (Giacomo Puccini's
opera Madame Butterfly); Maxine Hong Kingston, The Woman Warrior (the Chinese legend of
Fa Mulan); George Lamming, Water with Berries (Shakespeare, The Tempest); Valerie Mar-
tin, Mary Reilly (Robert Louis Stevenson, Dr. Jekyll and Mr. Hyde); V.S. Naipaul, A Bend in
the River (Conrad, Heart of Darkness); Sena Jeter Naslund, Ahab's Wife (Herman Melville,
Moby Dick); Pia Pera, Lo's Diary (Vladimir Nabokov, Lolita); Caryl Phillips, The Nature of
Blood (Shakespeare, Othello); Manuel Puig, Kiss of the Spider Woman (Madame Butterfly);
the film Ran (Shakespeare, King Lear); the musical Rent (Puccini's opera La Bohdme); Jean
Rhys, Wide Sargasso Sea (Charlotte Bronte, Jane Eyre); John Seelye, The True Adventures
of Huckleberry Finn (Mark Twain, Huckleberry Finn); Anne Sexton, Transformations (the
fairy tales of the Brothers Grimm); the film Shakespeare in Love (Shakespeare, Romeo and
Juliet); the musical Sunday in the Park with George (Georges Seurat's painting Sunday After-
noon on the Island of La Grande Jatte); Muriel Spark, Robinson (Defoe, Robinson Crusoe);
Jane Smiley, A Thousand Acres (Shakespeare, King Lear); Tom Stoppard, Rosencrantz and
Guildenstern are Dead (Shakespeare, Hamlet); Michel Tournier, Friday (Defoe, Robinson
Crusoe); John Updike, Brazil (the story of Tristan and Isolde); Updike, The Centaur (Greek
myths); Updike, Gertude and Claudius (Shakespeare, Hamlet); Updike, A Month of Sundays
(Hawthorne, The Scarlet Letter); Updike, Roger's Version (Hawthorne, The Scarlet Letter);
Updike, S. (Hawthorne, The Scarlet Letter); Derek Walcott, Omeros (Homer, The Iliad and The
Odyssey); Marina Warner, Indigo (Shakespeare, The Tempest); Wendy Wasserstein, The Sisters
Rosensweig (Anton Chekhov, Three Sisters).
6 One such course, "Rewriting the Canon," at the University of California at Berkeley, studies
rewritings by Aimd Cdsaire, J.M. Coetzee, Maryse Condd, and Jean Rhys. See http://ls.berkeley.
edu/dept/complit/falloiundergrad.htrnl (on file with the Harvard Law School Library).
7 Michael Cunningham won the Pulitzer Prize in x9g9 for The Hours, which reworks events
and characters from Virginia Woolf's Mrs. Dalloway, and Jane Smiley won in 1992 for A Thou-
sand Acres, which closely follows Shakespeare's King Lear.
r 989
2002]
HARVARD LAW REVIEW
The idea that "[p]oetry can only be made out of other poems; nov-
els out of other novels" predates this recent proliferation; rewriting is
as old as literature itself. The Book of Genesis rewrote the Mesopota-
mian creation myth.
9
The Book of Chronicles rewrote large sections of
the Book of Kings.'
0
Authors of the myriad rewritings of Shakespeare
probably learned from Shakespeare himself, whose plays often rewrote
prior texts. Milton's Paradise Lost, Joyce's Ulysses, T.S. Eliot's The
Waste Land - all are rewritings in their own ways." Indeed, all writ-
ing is, in some sense, rewriting. But the recent visibility of rewriting
novels shows that rewriting has become a more distinctive, self-
conscious genre in which the ideas of copying, pastiche, quotation, and
citation are themselves developed, played with, and rewritten.
Copyright law has become a fly in the ointment. Alice Randall's
2oo novel, The Wind Done Gone,
12
drew liberally from Margaret
Mitchell's Gone with the Wind
13
to rewrite the American classic from
the perspective of a new slave character, Scarlett's half-sister. Ran-
dall's novel fell squarely within the familiar rewriting genre.'
4
She
had a problem, however: Mitchell's estate still held the copyright to
Gone with the Wind. The estate's infringement suit was resolved
when the Eleventh Circuit held, in Suntrust Bank v. Houghton Mifflin
Co.,'" that The Wind Done Gone constituted fair use as a legitimate
parody.
6
That case has, for better or worse, set the standard for how
courts will evaluate rewriting: they will ask whether a particular re-
writing is a parodic fair use.
The confluence of three ideas in literary theory - the "death of the
8 NORTHROP FRYE, ANATOMY OF CRITICISM 97 (x95 7).
9 See NAHUM M. SARNA, UNDERSTANDING GENESIS 1-36 (1966).
10 See SARA JAPHET, I & H CHRONICLES: A COMMENTARY 37-40 (1993).
11 JOHN MILTON, PARADISE LOST (1667); JAMES JOYCE, ULYSSES (1922); T.S. ELIOT, THE
WASTE LAND (1922). See HAROLD BLOOM, THE WESTERN CANON 70, I8o, 158 (1994). See
generally id. (discussing the Western canon as a perpetual series of revisions).
12 ALICE RANDALL, THE WIND DONE GONE (2001).
13 MARGARET MITCHELL, GONE WITH THE WIND (1936).
14 See Marjorie Garber, The Chapter After "The End," N.Y. TIMES, Apr. 8, 2001, 4, at i5
(putting The Wind Done Gone's "literary recycling" in the broad context of the rewriting activi-
ties of figures like Ovid, Chaucer, Shakespeare, Joyce, and T.S. Eliot).
15 268 F.3d 1257, 1259 (izth Cir. 2001) (vacating the preliminary injunction granted in Sun-
trust Bank v. Houghton Mifflin Co., x36 F. Supp. 2d 1357, 1386 (N.D. Ga. 2oo), and remanding).
The Eleventh Circuit had initially vacated the preliminary injunction as an unconstitutional prior
restraint. Suntrust Bank v. Houghton Mifflin Co., 252 F.
3
d x65, x66 ('ith Cir. 2001).
16 Suntrust Bank, 268 F.3d at 1276.
199o
[Vol. 115:i988
2002]
ORIGINALITY 1991
author,"'
7
the "anxiety of influence,"' and "marginality"'
19
- provides
context for the phenomenon of rewriting. The first two of these ideas
have been discussed in copyright scholarship.
20
The third becomes sa-
ient in Suntrust Bank.
Begin with the death of the author. Poststructuralism has been
skeptical of the idea of the author as an individual, autonomous, uni-
tary figure. Scholars have questioned the foundational notion of au-
thorship in copyright, noting that it depends on the author-originator
idea that poststructuralism has challenged.
2
' Perhaps unsurprisingly,
this critical insight has not found a sympathetic ear in doctrine, and
the author-originator notion remains undisturbed. In copyright, where
originality
is the touchstone,
2 2
the author is far from dead.
23
The anxiety of influence is associated with Harold Bloom, who fa-
mously argued that all poetic texts involve their authors in an agon
with earlier poets.
24
A poet experiences Oedipal anxiety regarding his
17 ROLAND BARTHES, The Death of the Author, in IMAGE-MUSIC-TEXT 142, 146 (Stephen
Heath ed. & trans., 1977) (stating that a text "has no other origin than language itself" and that
"the text is a tissue of quotations drawn from the innumerable centres of culture"). See also
JACQUES DERRIDA, OF GRAMMATOLOGY 8 (Gayatri Chakravorty Spivak trans., T976) (dis-
cussing "the death of the book" and "the death of speech"); Michel Foucault, What Is an Author?,
in TEXTUAL STRATEGIES: PERSPECTIVES IN POST-STRUCTURALIST CRITICISM 141
(Josu6 V. Harari ed., 1979) (discussing the death of the author).
18 HAROLD BLOOM, THE ANXIETY OF INFLUENCE: A THEORY OF POETRY 6 (1973)
(offering "a theory of poetry by way of a description of poetic influence").
19 See HOMI K. BHABHA, THE LOCATION OF CULTURE 1139-70 (1994) (using marginality to
understand modernity and minority discourses).
20 See, e.g., Keith Aoki, Authors, Inventors and Trademark Owners: Private Intellectual Prop-
erty and the Public Domain, Part I, 18 COLUM.-VLA J.L. & ARTS i, 35 (1994); Elton Fukumoto,
Note & Comment, The Author Effect After the "Death of the Author": Copyright in a Postmodern
Age, 72 WASH. L. REV. 903, 9io-6 (1997); Wendy J. Gordon, A Property Right in Self-
Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE
L.J. 1533, 1559 (1993); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copy-
right and the Problem of Private Censorship, 57 U. CHI. L. REV. 100o9, 1030 (i99o) (reviewing
PAUL GOLDSTEIN, COPYRIGH?. PRINCIPLES, LAW AND PRACTICE (1989)); Lynne A. Green-
berg, The Art of Appropriation: Puppies, Piracy, and Post-Modernism, ii CARDOZO ARTS &
ENT. L.J. 1, 6 (1992); Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Author-
ship", 199i DUKE L.J. 455, 458, 485.
21 See, e.g., MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT
(993); Martha Woodmansee, On the Author Effect: Recovering Collectivity, io CARDOZO ARTS
& ENT. L.J. 279 (1992); sources cited supra note 20.
22 Originality in copyright means that the work was "independently created by the author (as
opposed to copied from other works), and that it possesses at least some minimal degree of crea-
tivity." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (199i). This Note engages
this definition of originality. Originality has different meanings in literary criticism. See, e.g.,
BLOOM, supra note i i, at 4 ("One mark of originality ... is a strangeness that we either never
altogether assimilate, or that becomes such a given that we are blinded to its idiosyncrasies.").
23 Aoki, supra note 20, at 35 ("In spite of... the rise of poststructuralist literary theory ... the
'author' concept in contemporary U.S. intellectual property law is very much alive.").
24 BLOOM, supra note 18, at 6.
HARVARD LAW REVIEW
inevitable need simultaneously to imitate and to displace prior poets.
25
All poetic texts are therefore intertextual sites of struggle, products of
misreadings of prior texts. If Roland Barthes proclaimed the death of
the author,
26
Harold Bloom fingered the author as the murderer of his
literary fathers. Copyright scholars have mentioned the anxiety of in-
fluence in finding rewriting integral to the creative process.
27
Finally, theorists in postcolonial and Afro-American literary studies
appropriated deconstruction's abstract idea of the margin to address
the "liminality" and "belatedness" of minority subjectivity.
2
"Margin-
ality" theorizing focuses on characteristic gaps, silences, and omissions
in the Western canon. One idea is that canonical literary texts efface
the presence of colonialism and slavery, yet these perspectives haunt
the margins of those texts, and are, crucially and tacitly, central to
their constructed worlds.
2 9
On this view, the reviled madwoman in
Charlotte BrontE's Jane Eyre
30
- literally hidden in the attic and at
the margins of the story, and ultimately revealed to be from Jamaica
- is a source of unspoken anxiety about colonialism, which in turn is
central to the story of Jane, the madwoman's English counterpart.
There emerged a literary practice running parallel to the critical in-
sight of marginality. Authors consciously "wrote back" to canonical
texts.
31
These countertexts wrote within gaps and omissions, supply-
ing missing voices and reclaiming a past that the colonizer had previ-
2S Id. at iO-ii.
26 See BARTHES, supra note 17.
27 See, e.g., Gordon, A Property Right in Self-Expression, supra note 20, at 1558; Gordon, To-
ward a Jurisprudence of Benefits, supra note 2o, at 1030.
28 See BHABHA, supra note ig, at 139-70 (appropriating deconstruction's notion of supple-
mentarity); DERRIDA, supra note I7, at 141-64 (discussing supplementarity); BHABHA, supra
note ig, at 155 ("Coming 'after' the original, or in 'addition to' it, gives the supplementary ques-
tion the advantage of introducing a sense of 'secondariness' or belatedness into the structure of
the original demand."). See also JEANNIE SUK, POSTCOLONIAL PARADOXES IN FRENCH
CARIBBEAN WRITING: CtSAIRE, GLISSANT, COND9 2 (2oo1) (noting that "the postcolonial has
come to 'represent' the idea of the margin made familiar by post-structuralism").
29 See, e.g., EDWARD W. SAID, CULTURE AND IMPERIALISM 80-97 (1993); see also id. at 96
(characterizing Jane Austen's Mansfield Park as "a novel based in an England relying for its
maintenance of its style on a Caribbean island," and emphasizing the centrality of slavery to the
novel despite its scarce mention in the text); Toni Morrison, Unspeakable Things Unspoken: The
Afro-American Presence in American Literature, 28 MICH. Q. REV. 1, 8 (1989) ("Canon building is
Empire building."); id. at ii (proposing a "re-interpretation of the American canon ... for the
ways in which the presence of Afro-Americans has shaped the choices, the language, the structure
- the meaning of so much American literature").
30 CHARLOTTE BRONTE, JANE EYRE (1848).
31 Cf. BILL ASHCROFT, GARETH GRIFFITHS & HELEN TIFFIN, THE EMPIRE WRITES
BACK: THEORY AND PRACTICE IN POST-COLONIAL LITERATURES 33 (1989) (noting that
postcolonial authors have "written back" to the canon).
[Vol. 115:1988
1992
ously written.
3 2
Thus, for example, Jean Rhys's "prequel" Wide Sar-
gasso Sea rewrote Jane Eyre, telling the story of Bertha, the mad-
woman in the attic.
33
Insofar as the valorization of marginality seeks
to redress silences, it corrodes the notion of unitary authorship less
strongly than the death of the author and the anxiety of influence theo-
ries - it fills in voices, but does not displace authorship.
34
Although scholars have used literary-theoretical insights to critique
copyright law,
35
they have not yet engaged literary rewriting as an im-
portant genre potentially affected by copyright.
36
Nor did courts, until
recently, have occasion to confront literary rewriting directly. Enter
Alice Randall, with her literary training from Harvard's English de-
partment.
37
To the reader of literary fiction, The Wind Done Gone in-
stantiates rewriting. It creates a slave's-eye view of Gone with the
Wind's familiar fictional world. But to Randall's misfortune,
Mitchell's estate refused her a license to create a derivative work.
38
Jane Smiley, Caryl Phillips, Tom Stoppard, Aim6 C~saire, John Up-
dike, and other rewriters had no such copyright infringement problems
with Shakespeare, whose plays were in the public domain.
Nearly all rewritings revise texts that are part of our shared cul-
tural vocabulary. The texts' canonical status makes revising them so
compelling. When certain texts have shaped our means of talking and
thinking about important ideas, riffing on those texts in new literary
works is a powerful way to refashion our language, worldview, and
aesthetic. Such canonical texts are likely to be old, and thus to be in
the public domain. But many famous texts are still under copyright.
Given the popularity of rewriting, it is surprising that The Wind
Done Gone is the first rewriting to have made case law by taking on a
32 The cultural influence of marginality theory can be seen, for example, in the recent film of
Jane Austen's Mansfield Park, which took on board the marginality reading of Edward Said, see
supra note 29, by bringing the plantations in Antigua from the margin to the center of the plot.
33 JEAN RHYS, WIDE SARGASSO SEA (1966).
34 From within the poststructural, postcolonial critique of "presence" and "voice," there is a
deep questioning of the possibility of successfully giving voice to the previously silenced. See gen-
erally Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in MARXISM AND THE
INTERPRETATION OF CULTURE 271 (Cary Nelson & Lawrence Grossberg eds., 1988).
35 See sources cited supra notes 20 & 21.
36 But see Note, Gone with the Wind Done Gone: "Re-writing" and Fair Use, 1x5 HARV. L.
REV. 1193 (2002). Cf. Rebecca Tu~shnet, Legal Fictions: Copyright, Fan Fiction, and a New Com-
mon Law, 17 LOY. L.A. ENT. L.J. 651 (1997) (discussing "fan fiction," in which nonprofessional
fan authors borrow copyrighted material from popular culture for use in their own writings).
37 David D. Kirkpatrick, A Writer's Tough Lesson in Birthin' a Parody, N.Y. TIMES, Apr. 26,
2001, at Ei.
38 A "derivative work" is "a work based upon one or more preexisting works ... in which a
work may be recast, transformed, or adapted." 17 U.S.C. 101 (2ooo). The statute grants the
copyright owner the exclusive right to prepare derivative works. Id. io6(2). Randall was de-
nied the license because plots that involve killing Scarlett, miscegenation, and homosexuality are
all off limits for sequels licensed by the estate. Kirkpatrick, supra note 3 7.
2002]
ORIGINALITY
1993
HARVARD LAW RE VIEW
copyrighted work without authorization.
39
It is of course possible that
the risk of being held an infringer is deterring rewritings of texts that
are still copyrighted and is steering authors to set their revisionary
sights instead on public domain works. With the recent copyright
term extension,
40
one wonders how many more canonical works will
be shielded by long copyright terms, and how many rewritings will not
be produced because authors cannot get permission to create them.
B. Narrowing Originality
The issue of using copyright law to block an artistic genre has al-
ready arisen in a parallel context, that of "appropriation art," a post-
modern movement in the visual arts that grew alongside theory. Ap-
propriation art self-consciously borrows material from culture, mass
media, and other artworks. It blurs the line between originality and
copying and highlights citation and quotation in artistic production.
In so doing, it makes the point that borrowing is inseparable from, and
constitutive of, originality. Given postmodern art's obvious challenge
to copyright's author-originator model, such artworks are vulnerable
to infringement suits, and to losing copyright protection themselves.
41
Some critics saw "an indictment of the whole movement of appro-
priation art
' 42
in the 1992 case of Rogers v. Koons.
43
Artist Jeff Koons
had produced a sculpture, "String of Puppies," based on a copyrighted
photograph.
4 4
Koons claimed to work "within an artistic tradition of
39 In I999, Vladimir Nabokov's estate filed an infringement suit against Pia Pera for Lo's Di-
ary, a rewriting of Lolita from the nymphet's perspective, but the case settled. Peter Applebome,
Pact Reached on U.S. Edition of "Lolita" Retelling, N.Y. TIMES, June 17, 1999, at Et. In 2ooi
in France, Victor Hugo's descendants unsuccessfully sued Francois Ceresa on a "moral right" the-
ory for Cosette, ou le temps des illusions, a rewriting of Les Misorables, which is in the public
domain. Alan Riding, Victor Hugo Can't Rest in Peace, as a Sequel Makes Trouble, N.Y. TIMES,
May 29, 2001, at Ex.
40 The Copyright Term Extension Act of 1998, Pub. L. No. xo5-298, 112 Stat. 2827, extended
the terms of all extant and future copyrights by twenty years. The Supreme Court has granted
certiorari in Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), cert. granted sub noma. Eldred v.
Ashcroft, 70 U.S.L.W. 3292, 70 U.S.L.W. 3324, 70 U.S.L.W. 3514 (U.S. Feb. 1g, 2002) (No. ox-6z8),
amended by 70 U.S.L.W. 3533 (U.S. Feb. 25, 2002) (No. oi-6x8), in which the D.C. Circuit heard
and rejected three challenges to the constitutionality of the term extension, under the First
Amendment, id. at 376, the originality requirement of the Copyright Clause, id. at 377, and the
"limited times" requirement of the Copyright Clause, id. at 378.
41 See 17 U.S.C. 103(a) (2000) ("The subject matter of copyright ... includes ... derivative
works, but protection for a work employing preexisting material in which copyright subsists does
not extend to any part of the work in which such material has been used unlawfully.").
42 Greenberg, supra note 2o, at 2. But see William M. Landes, Copyright, Borrowed Images,
and Appropriation Art: An Economic Approach, 9 GEO. MASON L. REV. x, 17 (2ooo) (arguing
that the artistic community's concern that copyright threatens appropriation art is "greatly exag-
gerated," because the dominant economic approach to copyright "allows unauthorized borrowing
in numerous circumstances that in turn promote artistic innovation").
43 960 F.2d 301 (2d Cir. 1992).
44 Id. at 3o5.
[Vol. 115:x988
1994
ORIGINALITY
commenting on the commonplace,"
45
an appropriative tradition that
"proposes through incorporating
these images into works of art to
comment critically both on the incorporated object and the political
and economic system that created it."
46
The Second Circuit rejected
Koons's fair use defense that the sculpture was a legitimate social criti-
cism of the effect of mass produced commodities and media images on
society.
47
The court held that to be a privileged parody, "the copied
work must be, at least in part, an object of the parody, otherwise there
would be no need to conjure up the original work"; even if Koons's
sculpture were "a satirical critique of our materialistic society, it is dif-
ficult to discern any parody of the photograph ... itself."14 On this
logic, the capacity of the work to comment on art or modern society
was not relevant to fair use analysis. Because much appropriation art
did not have to be understood as directly parodying the work appro-
priated, the genre ran the risk of being suppressed.
The analogy between appropriation art and literary rewriting is
obvious enough: inflected by postmodernist and poststructuralist in-
sights, both cite, quote, copy, and transform in the service of their
original artistic contributions. But appropriative techniques also un-
dermine the notion of originality. In Suntrust Bank, neither the dis-
trict court, which issued a preliminary injunction preventing publica-
tion, nor the Eleventh Circuit, which vacated it, had trouble finding a
prima facie case of copyright infringement.
49
Both courts found that
Randall had copied from Gone with the Wind. The disagreement be-
tween the two courts was whether The Wind Done Gone's copying
constituted fair use as a parody.
5 0
The Eleventh Circuit found that
The Wind Done Gone was indeed a parody, as a "specific criticism of
and rejoinder to the depiction of slavery and the relationships between
blacks and whites in [Gone with the Wind]."'
1
So it would appear that Suntrust Bank, from the perspective of
those who consider literary rewritings valuable, represents a step for-
ward from Rogers. But this appearance is misleading. It is largely co-
incidental that The Wind Done Gone could be perceived as a parody.
4S Id. at 32o. Koons said he was influenced by "the artistic movements of Cubism and Dada-
ism, with particular influence attributed to Marcel Duchamp." Id. at 309.
46 Id.
47 Id.
48 Id. at 3 o. The court stated that parody "closely imitates the style of another artist and
... makes ridiculous the style and expression of the original." Id. at 309-10.
49 See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 2267 (1Ith Cir. 2002); Suntrust
Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357, 1365-70 (N.D. Ga. 2002).
SO A parody finding does not automatically mean the use is fair. See Campbell v. Acuff-Rose
Music, Inc., Sio U.S. 569, 58x (1994) ("[Plarody, like any other use, has to work its way through
the relevant factors, and be judged case by case, in light of the ends of the copyright law.').
S Suntrust Bank, 268 F.
3
d at x269.
2002]
1995
HARVARD LAW REVIEW
The court might plausibly not have reached this conclusion, just as the
district court found that Randall's overall purpose, even taking into ac-
count the transformation and criticism, was to create a sequel and to
comment on the antebellum South rather than to attack the underlying
work.
S2
The concurrence noted that the Eleventh Circuit's treatment
of the novel as a parody "might have been different had we faced a
conflict between two literary worldviews of less perfect polarity."
5 3
The court's perception of a lack of nuance in the book's relation to the
underlying work made it easier to view it as parodic, and thus to allow
publication. Had The Wind Done Gone been more original in trans-
forming Gone with the Wind, it might not have been perceived as a
parody at all and would hence have fallen outside the fair use excep-
tion for parodies. Rewritings like The Nature of Blood, Wide Sargasso
Sea, and A Thousand Acres
54
exhibit more nuanced relationships with
forebear texts. They are complexly, not crudely, transformative, mak-
ing it difficult to perceive the polarity of worldviews that the fair use
exception for parodies may implicitly demand.
Suntrust Bank demonstrated how parody analysis entails a para-
doxical deployment of doctrinal logic. To find that The Wind Done
Gone was a parody of the underlying work, rather than a work that
criticized or commented on subjects outside of the underlying work,
the court downplayed the book's originality and emphasized the extent
to which it simply attacked Gone with the Wind. If the court had em-
phasized the originality of the work's transformative commentary on,
say, slavery, canonicity, or history, it would have been more difficult to
permit the work as parodic fair use. The parody analysis guided the
court into a constricted construal of the work's originality. To insist
that the copying be tailored to parody the underlying work is to under-
state the broader value of borrowing and transformation.
Thus, to permit publication of the original expression in The Wind
Done Gone, the court had to imply that this original expression was in
fact quite limited, confined merely to targeting easily parodied aspects
of Gone with the Wind, such as its racism and stereotypical,
"flat,"
"one-dimensional"
black characters.
55
In other words, which is more
original and valuable to the public: an attack on the famously trite
Gone with the Wind, or a reflection, through transformative engage-
S2 See Suntrust Bank, 136 F. Supp. 2d at 1378.
53 Suntrust Bank, 268 F.
3
d at 1278 (Marcus, J., concurring) (emphasis added). See also id. at
I 279-80 (characterizing the book as "a political, thematic, and stylistic negative").
54 CARYL PHILLIPS, THE NATURE OF BLOOD (r997); RHYS, supra note 33; JANE SMILEY,
A THOUSAND ACRES (1992).
SS In fact, Randall complicitly argued in the district court that some of her own characters
were "flat, one-dimensional characters who are not substantially similar to the characters created
by Margaret Mitchell." Suntrust Bank, 136 F. Supp. 2d at 1368 (quoting and disagreeing with
Randall's argument) (internal quotation marks omitted).
I996
[VOL. 115:1988
ment with the familiar work, on the nature of American slavery, liter-
ary voice, and cultural construction? To ask the question is to answer
it. And yet to characterize the contribution of a work as the latter
would be to risk its suppression for infringing.
Though it proved efficacious in this case, the fair use exception for
parody is no friend to literary rewritings in general. Indeed, most re-
writings do not fit comfortably into the genre of parody as envisioned
by the courts. Rather than take a polar position, most rewritings exist
in agonistic - rather than antagonistic
5 6
- relation to forebear texts
and thus shed light on them through more complex prisms.
5 7
It is per-
verse that copyright law, which seeks to promote public access to
knowledge by providing incentives to create original expression,"
might have the effect, through the fair use parody doctrine, of encour-
aging less original rewritings and suppressing more original ones.
C. Original and Derivative Originality, and Incentives To Originate
Given that fair use doctrine has moved in a less than ideal direc-
tion (demanding parody instead of being open to other transformative
uses),
9
it is worth asking whether courts should classify rewritings as
infringing derivative works, absent a fair use exception.
60
As the stat-
ute itself provides, copyright aims to encourage "original" works of au-
thorship.
61
And copyright should protect the underlying work only to
the extent necessary to encourage optimal investment in its creation.
62
These observations bring us to a deceptively obvious point. Re-
writings almost invariably rewrite canonical works, which, by virtue
of their canonicity, have almost certainly yielded rewards far greater
56 Tellingly, Judge Posner's distinction between parodies that "target" copyrighted work and
those that use copyrighted work as "weapons" employs the metaphor of combat. See Richard A.
Posner, When is Parody Fair Use?, 21 J. LEGAL STUD. 67, 71-74 (1992). The Eleventh Circuit
characterized The Wind Done Gone as "mak[ing] war" on the original text. Suntrust Bank, 268
F.3d at i271. Compare the combat metaphor to the familial metaphors of rewritings as mother-
daughter relationships, see, e.g., CAROLINE RODY, THE DAUGHTER'S RETURN: AFRICAN-
AMERICAN AND CARIBBEAN WOMEN'S FICTIONS OF HISTORY 133-49 (2001) (discussing
Wide Sargasso Sea as a daughter text of Jane Eyre), and as father-son relationships, see BLOOM,
supra note I i.
57 Cf. ASHCROFT, GRIFFITHS & TIFFIN, supra note 31, at 33 (noting a tendency in postcolo-
nial rewritings to challenge "concepts of polarity").
58 See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 545-49 (1985); see also
William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, i8 J. LEGAL
STUD. 325, 326 (z989) ("Striking the balance between access and incentives is the central problem
in copyright law.").
59 Part H below notes that the court could have adopted a different conception of fair use.
60 Scholars have asked the same question about appropriation art. See, e.g., Naomi Abe Voeg-
tli, Rethinking Derivative Rights, 63 BROOK. L. REV. 1213, 1267 (1997) (proposing a redefinition
of "derivative work" that excludes appropriative artistic activities like those at issue in Rogers).
61 7 U.S.C. 02(a) (2000).
62 See Landes & Posner, supra note 58, at 326.
20021 ORIGINALITY
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HARVARD LAW REVIEW
than necessary to motivate their creation. After all, canonicity means
that enough people have heard of, read, and presumably bought the
work for it to have become known. Canonicity is as close to a surefire
test of sufficient reward for the author as one could devise. It follows
that rewriting a canonical work does not discourage the creation of the
underlying work. No aspiring writer would think, "I won't bother to
write my own work, because I'll be losing money to the rewriter of my
book after it becomes famous."
6 3
Also, rather than discourage readers
from buying the underlying work, the rewriting is likely to return the
reader to the underlying work and thereby promote its sale. Who
reads A Thousand Acres and then thinks, "No need to read King Lear;
I already know how the story comes out"?
6 4
If the copyright statute is to be read in accordance with its stated
purpose of promoting original works, then perhaps courts should not
view rewritings as derivative works at all.
6 5
This reading would avoid
fair use analysis altogether and better protect rewritings,- most of
which cannot easily be categorized as parodies. Such an interpretation
would also avoid the perverse doctrinal logic whereby the broader, so-
cially valuable, original contribution of rewriting
66
cuts against rewrit-
ing's permissibility under the parody fair use exception.
Rewriting itself corrodes the idea of originality. It thus may appear
strange to invoke the originality of rewritings to argue that copyright is
not adequately inducing investment in the creation of original expres-
sion. But this appearance, like the appearance that Suntrust Bank
protects rewriting, is deceiving. Rewriting disrupts any binary under-
standing of originality, and puts in relief the ways in which a text can
be original to the very extent that it engages in copying
7
The Elev-
enth Circuit seemed to notice this paradox in analyzing fair use:
63 Cf. Note, supra note 36, at r209-12 (arguing that a fair use inquiry should consider both
how long the original work has been under copyright and how much profit the work has already
earned, and doubting that Mitchell would have been "less likely to write Gone with the Wind had
she known that she would be unable to extract a licensing fee from Alice Randall, or even that
Alice Randall would write a book criticizing her").
64 Although rewritings may be different from sequels, perhaps the same point applies. Schol-
ars have questioned the justification for derivative rights generally. See, e.g., Mark A. Lemley,
The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 1046-72
('997); Glynn S. Lunney, Jr., Reexamining Copyright's Incentives-Access Paradigm, 49 VAND. L.
REV. 483, 628-56 (1996); Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L.
REV. 1197, 1215-17, 1227-28 (z996).
65 Cf Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. COPY-
RIGHT SOC'Y 209, 211 (I983) (noting the paradox that "every infringer of a derivative right is, by
definition, itself the potential copyright owner of a derivative work, with an equal claim on
copyright's system of investment incentives").
66 Cf William W. Fisher HI, Reconstructing the Fair Use Doctrine, xox HARV. L. REV. x659,
1768 (1988) (noting that transformation of texts creates a society in which people flourish).
67 By contrast, the definition in Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340, 345 (1991), posits originality and copying as "opposed." See supra note 22 (quoting
1998 [Vol. mI5:I988
[T]he issue of transformation is a double-edged sword in this case. On the
one hand, .. . [The Wind Done Gone] certainly adds new 'expression,
meaning, [and] message' to [Gone with the Wind]. From another perspec-
tive, however, [The Wind Done Gone's] success as a pure work of fiction
depends heavily on copyrighted elements appropriated from [Gone with
the Wind] to carry its own plot forward.
68
A rewriting's literary "success" depends on the degree to which it is
transformative, because originality lies in transformation. The degree
of transformation depends, in turn, on the amount that is appropriated
- the more that is appropriated, the more potential for transforma-
tion. Appropriation
produces originality while undermining
it.69
The brute fact is that copyright doctrine is about allowing some
expression and disallowing other expression. If we speak the language
of copyright originality, then we can invoke originality to call for per-
mitting more original expression. But even if we remain skeptical of
the stability of originality as a concept, copyright should be open to the
weighing of two works, two originalities, in light of its utilitarian in-
centive-based goals. The instability of originality should lead us to be
wary of automatically accepting the priority of the "original" original
work over the original rewriting under an incentive-based theory.
II. REWRITING PRECEDENT, PARODYING PRECEDENT
A. The Eleventh Circuit Rewrites
Notwithstanding the logical and doctrinal perplex implicit in the
fair use parody analysis, the Eleventh Circuit, with good common
sense, allowed publication of The Wind Done Gone. Even though the
novel appropriated copyrighted material, the court concluded that the
work was entitled to the fair use defense of parody. Reaching this
conclusion through doctrinal logic required some rewriting of prece-
dent and some originality by the court itself.
The Eleventh Circuit's conclusion that The Wind Done Gone was a
parody relied heavily on Campbell v. Acuff-Rose Music, Inc., the Su-
preme Court decision holding that parody constitutes fair use.
70
Campbell did not hold that parody was the only type of transformative
use deserving a fair use exception; it left open the possibility of non-
Feist's definition). While courts have recognized that the two can coexist in a work, see, e.g., Al-
fred Bell & Co. v. Catalda Fine Arts, Inc., 1g1 F.2d 99, 103 (2d Cir. 195 1), copyright conceives co-
existence as divisibility of a work into original or copied parts, see, e.g., x7 U.S.C. I03(b) (2ooo).
68 Suntrust Bank v. Houghton Mifflin Co., 268 F.
3
d 1257, 1269 (2oo1).
69 Cf. BLOOM, supra note 18, at 7 ("[Ploetic influence need not make poets less original; as of-
ten it makes them more original ...
70 516 U.S. 569, 579 (1994).
ORIGINALITY
I999 20021
HARVARD LAW REVIEW
parodic transformative fair use exceptions.
71
And yet the Eleventh
Circuit took on the difficult task of describing The Wind Done Gone as
a parody, rather than holding that The Wind Done Gone fit a different
kind of fair use, comprising, say, transformative, nonparodic rewriting.
The reason for this choice figures significantly in this Part's reading of
the decision: the court did not want to announce a new (original) cate-
gory of fair use, preferring to rely on an established doctrinal category.
The court had reason to know that Randall aimed at a kind of re-
writing that was not necessarily parodic in the sense that the parody
fair use exception appeared to demand. As the district court noted,
only after Randall was sued did she (or her publisher) rewrite the
jacket of her book to advertise it as a "provocative literary parody that
explodes the mythology perpetrated by a Southern classic," and as "al-
luding to events in Mitchell's novel but ingeniously and ironically
transforming them.
' 72
The uncorrected proof had not mentioned par-
ody at all, but described the book as a "brilliant rejoinder" that "sup-
plies the story that has been missing."
73
The words with which an au-
thor advertises her book are obviously not dispositive indications of
the purpose and character of the book itself.
7 4
But the change indi-
cates that Randall rewrote the publicly stated purpose and character of
her literary endeavor to fit the parody precedent on all fours, so that
the book was precisely the type of fair use contemplated in Campbell.
Neither the literary notions of parody nor the parodic aspects of the
work are clear-cut, and one would expect disagreement among literary
critics on both the nature of parody and the question whether Ran-
dall's rewriting is parody. There was indeed sharp disagreement
among the expert witnesses in this case.
75
But particularly notable
was the crisp clarity on the parody question in Henry Louis Gates Jr.'s
testimony, which belied the question's slipperiness:
A parody is a work, belonging to a long literary tradition, which imitates
another work and in doing so comments on that work, usually in order to
ridicule it or suggest its limitations .... The Wind Done Gone is a classic
71 See id. (noting that "the goal of copyright ... is generally furthered by the creation of
transformative works" and stating that "parody, like other comment or criticism, may claim fair
use under [17 U.S.C. 107 (2000)]') (emphasis added).
72 Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357, 1376 (N.D. Ga. 2ooi) (quot-
ing RANDALL, supra note 12 (dust jacket)) (internal quotation marks omitted).
73 Id. (quoting the former cover).
74 Cf. Campbell, 51o U.S. 569, 583 n.17 (Souter, J.) ("Parody serves its goals whether labeled or
not, and there is no reason to require parody to state the obvious (or even the reasonably per-
ceived).").
75 See Suntrust Bank, 136 F. Supp. 2d at 1373-74 & nn.8-12, 2378 (quoting the divergent ex-
pert testimony of literature professors John E. Sitter of Emory University, Henry Louis Gates, Jr.
of Harvard University, Alan Lelchuk of Dartmouth College, Toni Morrison of Princeton Univer-
sity, and Joel Conarroe, president of the Guggenheim Foundation).
2000
[Vol. 115:1988
ORIGINALITY
parody, in a long line of literary creations that ... [can] not exist without
an extensive evocation of the original.
76
Professor Gates's testimony reads like the testimony of a scholar famil-
iar with Campbell.
7 7
As with the book jacket rewriting, the demands
of legal precedent, it seems, had drawn the frame within which the lit-
erary critic rewrote protean literary concepts in legally cognizable
terms to apply them decisively to Randall's book.
7
Professor Gates's
testimony reflected the imperative to follow precedent; it was an in-
stance of a literary professional rewriting literary concepts and judge-
ments, in (dare we say parodic?) engagement with legal concepts.
Campbell's definition of parody, like that offered by Professor
Gates, included an element of ridicule. Justice Souter's initial defini-
tion featured "comic effect or ridicule" as parody's purpose.
79
Camp-
bell stated that the "joinder of reference and ridicule ... marks off
... parody from the other types of comment and criticism that tradi-
tionally have had a claim to fair use protection as transformative
works."
0
But The Wind Done Gone, which does not obviously pro-
ceed as ridicule, presents a problem under this definition.
The Eleventh Circuit responded to this problem by redefining par-
ody so that it did not require ridicule: "For purposes of our fair-use
analysis, we will treat a work as a parody if its aim is to comment
upon or criticize a prior work by appropriating elements of the origi-
nal .. 8.1.s, Although Justice Souter had explicitly marked off "parody
from other types of comment and criticism,"
8 2
the Eleventh Circuit
seamlessly subsumed comment and criticism under the heading of par-
ody, and nudged out ridicule as a requirement. It justified "tak[ing]
the broader view" of parody based on Campbell's "admonition ... that
courts should not judge ... the success of the attempted humor in dis-
76 Id. at 1373 n. (alterations in original) (internal quotation marks omitted).
77 See Campbell, 510 U.S. at 580 (1994) (quoting definitions of parody as a work that "imitates
... for comic effect or ridicule," or in which "characteristic turns of thought and phrase ... are
imitated in such a way as to make them appear ridiculous") (internal quotation marks omitted).
78 In Professor Gates's important work on Afro-American literature, the definition of parody is
much richer and more complex, including, inter alia, pastiche, signifying, repetition, reference,
reversal, intertextual revision, critique, figuration, troping, "rhetorical naming by indirection," re-
semblance and dissemblance, translating, inversion, "hidden polemic," "comment[] both upon the
other narrative and the nature of its writing itself," "multiple substitution," allegory, "play of dou-
bles," and "narrative-within-a-narrative." Not only are literary texts the object of parody, but also
narrative form, black language, the nature of writing and reading, literary conventions, "attempts
to conceal literary antecedents and influence," and the idea of parody itself. See HENRY LOUIS
GATES, JR., FIGURES IN BLACK: WORDS, SIGNS, AND THE "RACIAL" SELF 24o-63 (1987)
(analyzing practices of parody in Harlem Renaissance texts).
79 Campbell, so U.S. at 580 (quoting AMERICAN HERITAGE DICTIONARY 1317 (3d ed.
1992)).
80 Id. at 583.
81 Suntrust Bank v. Houghton Mifflin Co., 268 F.
3
d 1257, 1268-69 (zith Cir. .200).
82 Campbell, 520 U.S. at 583.
2002] 2001
HARVARD LAW REVIEW
cerning its parodic character.
'8 3
By hinting that no humor was as
good as failed humor, the court effected a shift from parody as ridicule
to parody as comment and criticism.
The court made this change by rewriting within the gap of the
Campbell precedent.
8 4
Campbell's definition of parody, the court
noted, was ambiguous, because Justice Souter suggested that parody's
aim was "comic effect or ridicule" but then evaluated the work under
the rubric of "commentary," without mentioning comic effect or ridi-
cule."- Noting that Campbell was "somewhat vague,
' 8 6
the court rede-
fined parody as commentary and criticism, and marginalized humor
and ridicule: "Under this definition, the parodic character of [The
Wind Done Gone] is clear."
87
It was simply a matter of rewriting the
definition of parody.
The Eleventh Circuit effectively created, under the rubric of par-
ody, a new fair use exception covering rewritings that are not necessar-
ily parodic. To do so, the court shifted the meaning of "parody" away
from the meaning it has had in cases and in normal parlance., And
by rewriting in a gap of precedent, the court enabled the publication of
a work that rewrites in a gap of its literary forebear.
Why not directly acknowledge nonparodic rewriting as a fair use?
After all, Campbell left open that possibility. It would have been
equally plausible, and perhaps better for the development of fair use
doctrine, for the court to seize this possibility rather than to subsume
literary fictional comment and criticism under parody.
B. Rewriting the Eleventh Circuit
The relation between literary and legal rewriting may shed light on
why the court did not look beyond parody. In the above discussion of
Suntrust Bank as a legal case, the notion of paradox was a means of
noting incoherence. In this section, however, the perspective shifts:
literary concepts that proved useful for reading the literary text with
which the court was presented become useful for reading the court.
Lawyers understand as well as anyone what is involved in an act
of rewriting; citation of precedent is the mainstay of our work. Law-
83 Suntrust Bank, 268 F.
3
d at 1268 (emphasis added).
84 Cf. Janet E. Halley, Romer v. Hardwick, 68 COLO. L. REV. 429, 430-34 (997) (characteriz-
ing commentators as filling "gaps" in Romer v. Evans, 517 U.S. 620 (1996)).
85 Suntrust Bank, 268 F.
3
d at 1268 (citing Campbell, 5 o U.S. at 58o) (internal quotation marks
omitted).
86 Id.
87 Id. at 1269.
88 See, e.g., Campbell, 5 TO U.S. at 569, 580 (defining parody in terms of ridicule); Leibovitz v.
Paramount Pictures Corp., 137 F.
3
d 109, 114 (2d Cir. 1998) (quoting id.); Dr. Seuss Enters. v. Pen-
guin Books USA, Inc., iog F.3d 1394, 1401 (9th Cir. 1997) (quoting a dictionary definition of par-
ody that includes ridicule).
[Vol. ri5:i988 2002
ORIGINALITY
yers adapt, recast - and yes, transform
8 9
- precedent to speak to a
particular case. If anything, lawyers should appreciate literary rewrit-
ing because we know that applying precedent is not a mechanical act,
but one that involves transformation and even originality.
90
Lawyers
know that in the production of texts, copying and originality coexist,
with each nourishing the other.
Perhaps the Eleventh Circuit acted as it did precisely because law-
yers understand so well the dynamics of originality and unoriginality
in rewriting. Courts are committed to follow precedent - that is, to
be as unoriginal as possible. And the Eleventh Circuit had before it
the Campbell precedent, which held that parody is a fair use. To ap-
pear unoriginal itself, the court relied on precedent - the fair use par-
ody exception - to permit The Wind Done Gone. But the court effec-
tively rewrote precedent in the very act of denying its originality.
Literary rewritings that comment on and criticize (without ridiculing)
underlying works now fall under the parody fair use exception - a
conclusion original to the Eleventh Circuit. However, the parody
precedent remains, in principle, undisturbed.
Because lawyers understand rewriting so intimately, it is incumbent
upon courts to deny that rewriting is an original act. Paradoxically, by
downplaying the originality of rewriting
9
in both the court's own
precedent-following and in Randall's novel, the court both demon-
strated its own originality and enabled the publication of Randall's
rewriting. In rewriting the legal definition of parody to call Randall's
novel a parody, the court masked its own originality by claiming the
unoriginality of following the parody precedent.
92
This repression and
deployment of judicial originality resulted in the publication of a liter-
ary rewriting, which itself was also both original and unoriginal.
Perhaps most intriguingly, the case itself, no less than the literary
artifact with which it was concerned, enacted the three literary-
theoretical ideas sketched in section I.A. The case itself can thus be
illuminated with reference to them.
89 Cf j7 U.S.C. 101 (2000) (defining "derivative work" as a work that "recast[s], transform[s],
or adapts]" a preexisting work).
90 Cf David Cole, Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95
YALE L.J. 857, 858 (x986) ("Just as a complete poetic break from tradition is impossible, so is slav-
ish adherence to judicial precedent unattainable."); Kenji Voshino, Note, What's Past Is Prologue:
Precedent in Law and Literature, 104 YALE L.J. 471, 510 (1994) (using Harold Bloom's "anxiety
of influence" idea to show that "through ... a process [whereby "cases subvert precedent to
achieve meaning"], a text - whether literary or legal, conducts and invites strong misreadings").
91 See supra section I.B.
92 Cf Cole, supra note go, at 859 (stating that "we call judges who follow precedent legitimate,
but those who successfully break from it great," and arguing that "there is a fundamental tension
in the law between legitimacy and greatness").
2002]
2003
HARVARD LAW REVIEW
In her expert testimony in the district court, Nobel laureate Toni
Morrison suggested that the case was about two questions: "Who con-
trols how history is imagined? Who gets to say what slavery was like
for the slaves?"
93
This view reflected the "marginality" idea: Toni
Morrison read The Wind Done Gone as filling in a voice that had been
missing from Southern history and literature.
94
The Eleventh Circuit
may have been sympathetic to the idea of the novel's "supplying miss-
ing stories." Speaking as a court (the least marginal of voices, at least
in a case or a law review note), it did not engage in overt rewriting.
But it did rewrite in gaps of precedential ambiguity.
That rewriting alone would be a sign that a literary event was un-
derway. But there is more. The court also spoke in ways that re-
flected the more corrosive strands of the anxiety of influence and the
death of the author. The court performed the anxiety of influence in at
least two ways: It hewed to precedent by applying Campbell's parody
fair use exception rather than by developing a new fair use exception
for nonparodic literary works. And it rewrote (or "misread') Campbell
to minimize or eliminate the requirement of ridicule in parody.
95
Not only did the court engage in these literary moves in allowing
publication of a literary text; it did so by performing a super-legitimate
death of the author, treating Campbell as a tissue of quotations
96
into
which it wove its own view so skillfully that the two seemed continu-
ous. Obscuring where the Court's view ended and its own began, the
Eleventh Circuit preserved the unoriginality on which precedent-based
reasoning depends. The court wielded a double-edged sword, chipping
away at originality on several planes while simultaneously allowing
publication of a literary text that might be called "original."
III. ORIGINALITY BETWEEN PREEMPTION AND CITATION
One reason to write a law review note or article is to make an
"original contribution" to the legal literature. By the time a piece is
published, it has been put through an originality inquiry. Law reviews
regularly perform "preemption checks" to ensure that what they pub-
93 Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357, 1378 (N.D. Ga. 2001) (inter-
nal quotation marks omitted).
94 Compare Morrison, supra note 29 (discussing the effaced Afro-American presence in litera-
ture), with RANDALL, supra note 12 (dust jacket) (describing the book as one that "gives a voice
to those history has silenced").
95 Cf. Yoshino, supra note go, at 496-506 (reading Planned Parenthood v. Casey, 505 U.S. 833
(1992), through the lens of the anxiety of influence).
96 See BARTHES, supra note 17, at 146.
2004 [Vol. i15:1988
lish contributes something original, whether the work is that of a stu-
dent or an established scholar.
97
At the same time, law review articles conventionally contain a tre-
mendous number of citations, which are meant to ensure that an arti-
cle is "well supported." "Support" presumably means that preceding
legal and scholarly texts substantiate the claims that an article makes.
This practice of extensive citation is peculiar to legal scholarship.
98
Judge Posner notes that until the i960s, legal scholars saw them-
selves as a "shadow judiciary," "identified with the legal profession
rather than with their colleagues in other departments.
'
"
99
Scholars
used the "same assumptions, vocabulary, and methods of argument
and proof as found in judicial opinions."
100
Although this model has
given way to a broader intellectual perspective,
10 1
perhaps the current
convention of extensive citation owes something to the judicial per-
spective of the past. It is as if the judicial model of citing authorities
for legal arguments is expressed in the practice of excessive - indeed
obsessive'
02
- citation in contemporary
legal scholarship.
"Cititis,"
10 3
citation fetish,
10 4
and legal academics' obsession with being cited'
05
are well known (that is, many citations for these propositions exist).
Every idea in an article is subject to the panoptical surveillance of
the law review editor,
0 6
who assiduously inserts citations for even the
97 See Howard A. Denemark, How Valid Is the Often-Repeated Accusation That There Are
Too Many Legal Articles and Too Many Law Reviews?, 30 AKRON L. REV. 215, 224 (1996) ('To-
day, law review editors search the field of literature to see whether the article submitted adds any-
thing to those articles already available to readers. This preemption check is designed to elimi-
nate some duplicative material from the legal literature."); Heather Meeker, Stalking the Golden
Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 UTAH L. REV.
917 app. D (1996) (providing the preemption policy guidelines of eleven legal journals).
98 See Kenneth Lasson, Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103
HARV. L. REV. 926, 933 (199o) (noting that "articles in medical journals, for example, are gener-
ally much shorter and contain fewer footnotes").
99 Posner, supra note 3, at 1315.
100 Id.
101 Id. at 13z6 (noting that around 1970 the legal academy began to incorporate perspectives
from other scholarly fields).
102 See Wendy Gordon, Counter-Manifesto: Student-Edited Reviews and the Intellectual Prop-
erties of Scholarship, 61 U. CHI. L. REV. 541, 542, 547 (x994).
103 K.N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 8 (195x) ("Vic-
tims of [Cititis] hold the delusion that nothing is, except in print; and that even what is in print is
tabu to use unless some print is cited.")
104 See, e.g., Lawrence M. Friedman, Law Reviews and Legal Scholarship: Some Comments, 75
DENV. U. L. REV. 661, 664 (1998); Gordon, supra note 102, at 547.
105 See, e.g., Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 7' CHI.-KENT
L. REV. 751 (1996); Fred R. Shapiro, The Most-Cited Legal Scholars, z9 J. LEGAL STUD. 409
(2000).
106 Cf. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 195-
228 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (,977) (citing Bentham's discussion of the
Panopticon).
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HARVARD LAW REVIEW
most familiar ideas in our intellectual vocabulary. In other academic
journals, by contrast, many facts are considered sufficiently well
known to need no citation. But law reviews give citations for every-
thing under the sun, as if every proposition, and some things that are
not propositional at all, needed "authority." The mere mention of
Homer's Odyssey or Shakespeare's Hamlet would include citations.
10 7
This practice is the judicial model at work. Law reviews have in-
ternalized the need to cite legal authority for propositions of law, and
have transformed it into an expectation that even well-known facts
and statements need authority. Law reviews even give citations for
arguments, a practice that borders on the bizarre. A proposition of
law is authority if a court says it is, purely because of our precedent-
based legal system. But if one author makes a statement or argument,
the fact that it appears in another article is not evidence of its truth.
At best, footnotes offer a comparison with other views, provide a guide
to research, and indicate familiarity with previously published mate-
rial.
Judge Posner notes that when the judicial model of legal scholar-
ship reigned, "there was little emphasis on originality and hence only a
very weak norm of acknowledging previous work covering the same
ground."
08
Like judges, legal scholars concealed originality.') Only
recently have we seen the privileging of "'breakthrough scholarship,"'
which would earlier have been "suspect as unsound."
'
1
0
If there was a nexus between originality - or rather, relative un-
originality - and the precedent model in the legal scholarship of a by-
gone era, this Part explores the ways in which this originaljty-
precedent nexus underlies current law review conventions. There is
now a greater expectation of both originality and citation. Somehow,
when academics identified more with the legal profession, neither
originality nor extensive citation was a norm. Now that academics
speak more to one another than to the courts, originality has under-
standably risen in importance, and the underlying judicial precedent
model has also mutated into a norm of citation excess. Originality and
precedent translate roughly into the law review conventions of pre-
emption and citation. If preemption loosely resembles the paradigm of
originality in copyright, citation loosely resembles the unoriginality
paradigm of precedential authority in legal argument.
But the practices of originality and unoriginality are closer to each
other than surface rhetoric would indicate. As in the contexts of copy-
right originality and the application of precedent, the claim that a
107 HOMER, THE ODYSSEY; WILLIAM SHAKESPEARE, HAMLET.
108 Posner, supra note 3, at 1319.
109 I.
110 Id.
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[Vol. zir5:I988
ORIGINALITY
piece is either preempted or not preempted, or is either supported or
not supported, is somewhat disingenuous. Like copyright's protection
of only original works, and like the lawyer's denial of his originality in
applying precedent, the practice of originality in legal scholarship is
self-falsifying. Scholarship inherently builds on the work of others.
Creative engagement with previous work is very often the stuff of
original contribution in scholarship.
One must further notice a double-edged sword at work, with origi-
nality caught between preemption and citation. An article must simul-
taneously be well supported and not preempted. But the more support
that exists for a particular argument, the more likely it will be consid-
ered preempted. And conversely, the less preempted an idea, the less
support exists for it."' The dynamic in law review publishing thus
risks devolving into a schizoid tendency of extremes. It is as if the law
reviews, which are run by lawyers in training, have magnified and ex-
aggerated two models available to them: the originality ostensibly re-
quired of authors seeking copyright protection, and the unoriginality
ostensibly required of lawyers applying precedent. The insecurity of
students editing their professorial seniors'
1 2
expresses itself in a disci-
plining that double-binds legal scholarship between preemption and
citation.
Some dangers attend this disciplining. Newly initiated law review
editors, often on their way to drafting judicial opinions as law clerks,
tend to be conservative with respect to the perpetuation of rhetoric
that they have only recently learned. There is a risk that the concept
and language of preemption - with its legalistic
1 3
and totalistic con-
notation of "occupying the field" - is not nuanced enough to indicate
that transformative engagement with prior material is an important
contribution to knowledge. Preemption concerns may cause an editor
to mistake engagement with prior material for lack of originality, par-
ticularly if the editor is not familiar with the discourse. Thus, expan-
sive deployment of preemption may have several deleterious effects on
legal scholarship.
III But cf. Gordon, supra note 102, at 549 ("An insistence on knowing where we have come
from will make it more likely that we and our readers will know when we are saying something
new.").
112 The "literature of invective" on the shortcomings of student-edited law reviews is large.
See, e.g., Friedman, supra note 104, at 661 n.a (citing sources); James Lindgren, An Author's
Manifesto, 6x U. CHI. L. REV. 527, 527 (1994) ("Our scholarly journals are in the hands of incom-
petents.... [Law review editors] often select articles without knowing the subject, without know-
ing the scholarly literature, without understanding what the manuscript says.... Then they try to
rewrite every sentence.").
113 Cf, e.g., THE WHITEBOOK: A REFERENCE MANUAL I.D (Harvard Law Review Ass'n
ed., 2000-ox) (providing guidelines for conducting preemption checks and characterizing the
question whether a piece is preempted as "a question of law").
2007 20021
HARVARD LAW REVIEW
First, excessive concern with preemption may systematically disad-
vantage scholarship that engages in shared conversations about a
common set of questions and that deploys common terms. In other
disciplines, such conversations are understood to deepen and refine
knowledge. There is a danger that, in legal scholarship, preemption
may be applied not only to specific arguments and claims, but also to
whole sets of questions and approaches. Preemption may thus work
systematically to disadvantage articles that participate in conversations
in fields where small moves mean a lot. It may, in turn, systematically
advantage maverick ideas.
1 14
How can a sustained and serious prac-
tice of criticism and refinement of ideas build up in the law review lit-
erature, if works that explicitly build on and acknowledge debts to
prior work are most in danger of being considered preempted?
Second, scholarship that speaks to questions in which the courts
are interested may systematically be disfavored. Given the claim of a
"growing disjunction"
between legal academics and practicing law-
yers,
15
the urge to avoid preemption may be one of many complex fac-
tors leading academics away from the discourse of the judiciary and
toward impractical scholarship. Concerns about preemption and the
attendant push toward originality may press scholars to implausible
views that few lawyers share or can engage seriously.
1 6
Of course the
advantage of this pressure is that no intellectual stone, however
strange, goes unturned. The disadvantage is that it denudes legal
scholarship of its unique benefit, that of practical reason, which re-
quires engagement with commonly held beliefs and practices.
Third, the fear of self-preemption may harm individual scholars'
development of ideas over time. The process of building on, refining,
applying, improving, developing, reworking, revisiting, and occasion-
ally undercutting one's previously published ideas is an important
facet of the contribution to knowledge. Yet a preemption checker
could find, for example, that important parts of Ronald Dworkin's
Law's Empire are preempted by his earlier Taking Rights Seriously.
117
In publishing an article, preemption worries may lead an author to
suppress related subsidiary ideas on which she may wish to elaborate
114 Given that so much is published in the legal field, systematic advantaging and disadvantag-
ing may not affect publication, but rather where articles appear in the rank order of prestige.
115 See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal
Profession, 9i MICH. L. REV. 34 (1992).
116 Cf. Suzanna Sherry, Too Clever by Half- The Problem with Novelty in Constitutional Law,
9s Nw. U. L. REv. 921, 926 (2001) (arguing that "[t]he more radically an article departs from con-
ventional wisdom, the more likely it is to be published in a prestigious law review," creating the
"perverse incentive" to write work that is "original, creative, even brilliant, but quite obviously
wrong") (footnote omitted).
117 RONALD DWORKIN, LAW'S EMPIRE (z986); RONALD DWORKIN, TAKING RIGHTS
SERIOUSLY (i977).
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[Vol. 115:1988
in the future, resulting in the conscious parceling of ideas into shrink-
wrapped, unpreempted pieces for publication. Imagine if Shakespeare
had decided to suppress the character of Mark Antony in Julius Cae-
sar, lest he be preempted from later developing the (quite different)
character of Mark Antony in Antony and Cleopatra.
118
CONCLUSION
Imagine Alice Randall writing The Wind Done Gone. Not only
must she negotiate authorial originality in the shadow of literary tradi-
tion; to avoid infringing Mitchell's copyright, she must also not be too
original in her transformation of the canonical text with which she
wrestles. Imagine the court writing the opinion allowing the novel as
a parody. It must follow precedent while rewriting it. Imagine writing
a piece about originality. One must show that the argument - that
originality places a double bind on the author in each of these mo-
ments - is supported but not preempted. Are these really different
moments? No, in the sense that originality's double bind is manifest
in all of them.
The peculiar conception of originality found in the context of law-
yers' own work - arguing through precedent - tends to frame the
treatment of literary works under copyright law, and of legal scholar-
ship in law review publishing. Literary works are expected to be
original to be protected by copyright. Courts are expected to be un-
original. And scholarly articles are expected to be original and un-
original. The centrality of precedent to lawyers' work has allowed the
precedent model to infiltrate beyond the adjudicative realm, in which
originality is suppressed, to areas in which originality is valued. Even
in nonadjudicative textual contexts, lawyers tend to place constraints
on originality that are analogous to those that we feel when producing
legal texts.
The double-edged sword of originality expresses itself across these
three contexts, in a dialectic between antithetical yet compatible im-
pulses. Whether in the relation between literary originality and copy-
ing, between precedent-following and precedent-rewriting, or between
preemption and citation, two seemingly contrasting impulses collapse
upon and sustain each other.
The result is nothing less than the possibility of originality.
118 WILLIAM SHAKESPEARE, JULIUS CAESAR; WILLIAM SHAKESPEARE, ANTONY AND
CLEOPATRA.
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