What is Yours, Ours, and Mine: Authorial Ownership and the Creative Commons

Abstract

OCTOBER 126, Fall 2008, pp. 91–114. © 2008 October Magazine, Ltd. and Massachusetts Institute of Technology. As lawsuits abound throughout the world involving contentions of creativepropert y theft , plagiar ism, and infr ingement s on fair use, the field of intellectual-property rights has become white-hot. Questions that formerly might have seemed frivolous or peripheral to aesthetic theory are increasingly freighted with juridical consequence: who owns your life story? This was a key concern in a lawsuit brought by original cast members of A Chorus Line, who were convinced that producer Michael Bennett had insufficiently remunerated them for a script built on their oral histories of childhood abuse, marital woes, and professional struggles. Should writers be held liable if they lift episodes from the lives of others (at issue in the controversies surrounding Ian McEwan’s 2001 novel Atonement, which is alleged to have been plagiarized from Lucilla Andrews’s 1977 memoir No Time for Romance, and Bryony Lavery’s 2004 play Frozen, reliant on Malcolm Gladwell’s article in The New Yorker that was in turn indebted to a psychiatrist’s account of her work with serial killers)?1 Would literature be possible if writers were proscribed from “translating” into fiction reality-based experiences and reallife human interest stories? The query was answered vehemently in the negative by writers polled on the McEwan case: Zadie Smith, Margaret Atwood, Colm Toibin, Kazuo Ishiguro, Thomas Keneally. Can readers stake a legal claim to an author’s life story? This question animated the controversial case of James Frey when it was revealed that he had fictionalized portions of his drug recovery memoir, A Million Little Pieces (2003). Readers did not stop at outrage over Frey’s violation of what critic Philippe Lejeune has dubbed “the autobiographical pact” (grounded in the presumed credibility of the auto-text and the guaranteed match of proper name