William Gaddis - A Folic Of His Own

— But there already is a novel, you said they buy the rights to a novel and…

— Not what's up there on the screen is it? Get through the squabbles between the writers the director the stars and what you end up with's probably miles away from where it started, just confuse the man at the airport who's looking for Anga Frika's tits and…

— But the book they, what happens to the novel they bought in the first place to…

— Dead in the water. You think any studio's going to sign a contract with a droit morale clause in it? Point here is they're trying to cut their losses, get back on track with their tie-ins and spinoffs start their cash flow moving again that's what I've come out here to talk to you about, now…

— Yes, yes good I'm glad to hear it I was getting worried I even, that new car out there you saw it, I just made the first payment and…

— No new car out there Oscar, all I saw when I drove in was an old brown…

— No it's out there, it's just like yours it's a new, wait, they took it. They took it! They took it shopping they didn't even ask me, I haven't even driven it myself yet and she took it without even asking.

— A little reckless Oscar, a car in that price range you…

— No she'll drive carefully but, but she could have asked me couldn't she?

— I mean getting it in the first place, talked to your friend Lily there when I called and told her you'd better show a little restraint until the…

— Yes! Yes that's why I'm relieved but the main thing, listen. My play, I'll be able to produce it myself now, isn't that the marvelous irony in the whole thing? This piece of, sitting here tonight eating popcorn watching this piece of trash on television paying to put my play up there on the stage where it should have been in the first place yes the worse the movie is the better, the more tawdry, vulgar, bloody it is the better, that's justice isn't it? if you want poetic justice?

— Oscar look, that's what I came out to…

— No but the point of it, the whole point of it Harry listen. All this trouble and pain and years of misunderstanding with Father it's been mainly my fault, it's all been my fault for having no faith in him because I thought he didn't have any in me and this play and all of it when he was standing behind me all the time because that's true isn't it? that he wrote the appeal?

— Had to be, it had his handprints all over it that's what had Mudpye climbing the walls, little bastard expected to get up there with his long fancy oral argument and give those shrewd old hands on the bench a lesson in State law preempting the Federal statutes I don't think they gave him three minutes. One look at that appeal brief they didn't doubt for a second it had come from a colleague, never prove it of course but I think they knew where it came from, turned Mudpye's performance upside down on its face and left him out in the cold that's why he's out for blood in the second round here. I could have called you but I thought I'd better wait till I could come out and run through it with you in case you've got any questions, afraid you won't be too pleased with what they've come up with here reviewing the master's decree on your damages. — Who. All the profits yes, they who.

— The appeals court Oscar, look. You understand how this whole legal proceeding works don't you? He had out a folder, snapping the case closed on his lap — what you've got here, this is your final decree from the Second Circuit entered on the accounting they directed when they reversed the district court and it went to the master to determine your award, mind if I turn this thing off? and he was up again in the flickering light of the silent screen where a lively fellow fled the torments of diarrhea in what appeared to be an international airport, — told you they'd come back trying to get your award reduced didn't I? and he sat down again, now at the foot of the sofa opening the folder — now, you see here. You were awarded all the profits they made from exhibiting the picture The Blood in the Red White and Blue and the question is whether that was correct.

— Well of course it was, they stole my work and have to give me all their profits in damages it's that simple, isn't it?

— No. They insist that the profits should have been apportioned. Here, that the recovery of the author of a copyrighted work ought to be limited to those profits which result from its exploitation; and that since the value of the picture here depended only in very small measure upon those parts which the defendants have been found to have lifted, they should be accountable for only a correspondingly small part of the…

— Well that's, they can't do that no that's ridiculous, they stole it didn't they?

— Point is Oscar, all right look. Write a poem, somebody lifts it, publishes it elsewhere with his name on it simple case of plagiary, same words printed on a piece of paper, a movie's something else, the profits come from the people who pay to see it with the hope of enjoyment don't they? He thrust the stapled pages at the quavering hand on the quilt, — here, look. That enjoyment, which is one source of its further popularity, is made up of many factors: the actors, the work of the producer and director, the story, the scenery and costumes. The attraction and the hope which first draws them are principally aroused by advertisements, and the reputation of the stars and the producing company. These factors have no unit common to all, and are therefore incommensurable; in that, the situation is not different from the usual case of copyright infringement where the pirated material has been mixed with matter in the public domain. They've usually just tried to get the net profits down as low as possible, what the court's saying this time is that no matter how little the defendants say the value of the picture depends on what they stole, it's right here, the infringer carries the burden of disentangling the contributions of the several factors which he has confused. Your appeal didn't bring up that point and here, the court undertook sua sponte to declare that the plaintiff should recover all the profits and they moved to modify that so they could prove the value of their own contribution, move over a little so I can get my jacket off will you?

— Their own contribution! gone in a spasm of coughing, — nothing but a lot of, of…

— Gets into patent accountings here where the infringer has to separate the profits from his own contribution where it's just as unfair here to cast the infringer for all the profits as it would be to deny the patentee or the author any recovery because he can't separate his own contribution so the court puts the burden on them, you see? riffling through the pages, — what this whole thing is all about?

— No.

— All right, look. They claim everything they can and throw in the kitchen sink, some of it's allowed some of it isn't. Down here for instance, whether the profits from showing it outside the United States should be included, the court holds that the plaintiff, you the plaintiff, had an equitable interest in the negatives the minute they were made in this country where it was a tort so the law impresses them with a constructive trust. Here the master has used the cost of production as the basis for figuring the distribution cost the defendants have put in under overhead expenses they've tried to spread over their other pictures and the court holds for the master, same thing here where they've disallowed a five million dollar studio overhead item for stories or screenplays they bought that were failures or weren't made at all I, just let me get up for a minute? drawing away from the seething breath mingling with his own, — little early for a drink but that's a long drive out here, just give me a minute while you run through the rest of this?