William Gaddis - A Folic Of His Own

He'd reached out to hold her wrist, putting down his glass to say — lap of Judge Bone is more like it Christina, sitting on the Second Circuit bench as long as anyone can remember, cut from the same cloth as old Judge Crease, he doesn't suffer fools gladly I've seen him take a young woman prosecutor right off at the knees, got himself a name over the years for being a sort of misogynist so this wild card Oscar drew on the bench better have had her act together, do you want another? and he was up emptying his glass, taking them both back to the source and pouring it freely, — can't tell he said, handing hers back to her, — you can't tell. Little bit of the old puritan xenophobe too, get Mudpye up there with his secondhand red brick arrogance trying to deliver his oral argument and you can't tell.

— Well if you could have heard him out there Harry, I mean he's certainly got his act together if that's what you…

— May think so, he may think so but I don't think he's ever handled a case before the Second Circuit Appeals Court. Probably march in there with a twenty page brief ready to read every word of his brilliant legal analysis to these three old black robes sitting up there looking down at him and I mean looking down, he's standing at a lectern down in the well and they're up in their highbacked thrones behind this polished mahogany sort of horseshoe courteous, relaxed, really forbidding, almost informal that's what's formidable about it. He starts off with something like in order to fully understand this case one of them cuts him right off. We're familiar with the case, Counsel, is there anything you wish to add to what is contained in your brief? Your honour, if I may be allowed to outline the facts… I believe we understand the facts, Counsel. If it please the court, the public interest in the far reaching cultural implications of this case and Bone comes right in, I remind Counsel that we are here to serve the public interest. Your case is thus and so, goes right to the heart of it, sums up the argument in a couple of sentences and asks counsel to sit down, poor bastard's got himself up for a real performance and the place, the whole atmosphere's like a theatre but they're not there for a matinee and his whole star turn goes out the window, a few more questions and down comes the curtain.

— Well my God Harry don't tell, don't get Oscar's hopes up, I mean this whole brittle shell he's put together for who he thinks he is now but suddenly I look through that mangy beard and cigar smoke and see the face of the little boy down there by the pond that day with the little canoe he'd made, he'd spent days at it stripping the bark off a beautiful white birch that stood there and Father, Father looking at it without a word like some terrible open wound, looking at the canoe sunk in the mud and he had the poor tree cut down the next day without a word, gone without a trace he never mentioned it again but he never let Oscar forget it, just with a look, it was all too heartbreaking and now he's done it again. Oscar's done it again setting himself up with these fantasies of producing his play when he wins this appeal and if he loses, this whole desperate pose as the gentleman poet, the last civilized man I mean he's just really so different from who he thinks he is and God only knows, when he loses…

— Not when he loses, Christina. It's when this who he thinks he is loses, what the whole thing's all about isn't it? He goes off on a frolic of his own writes a play and expects the world to roll out the carpet for…

— A frolic! Where in God's name did you get that, I mean have you ever seen anyone more deadly serious than…

— Just a phrase, comes up sometimes in cases of imputed negligence, the servant gets injured or injures somebody else on the job when he's not doing what he's hired for, not performing any duty owing to the master, voluntarily undertakes some activity outside the scope of his employment like…

— Harry?

— Like an office worker puts out an eye shooting paperclips with a rubberband they say he's on a frolic of his own, no intention of advancing his employer's business his employer's not liable, there may be a case if the employer knew about this horseplay and hadn't tried to…

— Harry! My God I'm not talking about shooting paperclips, I mean can't you say anything without writing a whole legal brief to go with it? and a swallow from her glass broke her off coughing — he, he spent a year, two years writing it and…

— All right, look. Look all I meant was Oscar takes off and writes a longwinded play about his grandfather he wasn't hired to do it, about somebody seeking justice nobody paid him to did they? And it gets him nowhere, does he keep at it? write another play? and another? No, no he splurges this one time and then lets it devour him year after year like this little birch canoe he made because it's safer to blame the world out there for rejecting who he thought he was, for all the work he's put in on a play that's not really about justice in the first place, not about injustice it's about resentment, it's resentment right from the start like his little canoe sunk in the mud and it poisons everything, blaming those faceless ogres out there instead of looking inside at the ogres we don't want to see, don't dare see our own hand in it, who we really are, and if he wins? pausing again to reach for the bottle, — if who he thinks he is wins on this appeal? What you see in the headlines out of Washington every day isn't it? caught redhanded destroying evidence, obstructing justice, committing perjury off on frolics of their own and when they get off on some technicality, everybody knows they're guilty but there's not enough there to prove it so they can proclaim they've been proved innocent, wrap themselves in the flag and they're heroes because now they believe it themselves, because the law has vindicated who they think they are like saying where would Christianity be today if Jesus had been given ten to twenty with time off for good behaviour, and if he wins? If Oscar wins and this whole cockeyed version of who he thinks he is is vindicated because that's what the law allows?

— I mean, but I mean isn't that really what the law is all about? and she straightened up as though to disown the slur in her voice setting her glass down emptied — where it's all laws, and laws, and everything's laws and he's done something nobody's told him to, nobody hired him to and gone off on a frolic of his own I mean think about it Harry. Isn't that really what the artist is finally all about?

— I've thought about it he muttered almost to himself, standing there staring at the drink swirling slowly in his hand like the words lost under his breath — I've thought a lot about it, melting away like the fixed resolve that had always seemed to map the hard features of his face, looking up at her. — Come to bed.

OPINION

Before Wakefield, Schlotz and Bone, Circuit Judges

BONE, C. J.

Oscar L Crease ('Crease') filed his complaint against Erebus Entertainment, Inc. ('Erebus'), its Chief Executive Officer Ben B F Leva OB F') and Jonathan Livingston 5iegal a/k/a Constantine Kiester ('Kiester') et al. in the United States District Court for the Southern District of New York for damages, injunctive and other relief. The action arises out of alleged infringements upon the dramatic presentation Once at Antietam written by plaintiff, a historian and fledgling playwright, for the stage or for television adaptation. The defendants deny infringement but admit production and distribution of the alleged infringing motion picture entitled The Blood in the Red White and Blue.

As provided in 28 U.S.C. 1400 (a), civil actions 'arising under any Act of Congress relating to copyrights… may be instituted in the district in which the defendant or his agent resides or may be found' plaintiffs summons and complaint were served on defendant's general counsel designated as agent for service in New York City in this judicial district where they do business and 'where the claim arose' (U.S.C. 1391 (a)), no claim of lack of venue having been asserted the objection to improper venue was waived. Before the pretrial conference stage in these proceedings was reached, defendant filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or in the alternative for summary judgment under Rule 56, submitting therewith certain affidavits and collateral supporting documents outside the pleadings affirming that no material issues of fact were in dispute and that given these undisputed facts one party was entitled to judgment on the law wherewith the district judge construed defendant's motion as one for summary judgment and so held. The plaintiff appeals.