Kagan, J., dissenting
Ecstasy of Influence, in Harper’s Magazine 61 (Feb. 2007). Or as Mary Shelley once wrote, there is no such thing as “creating out of [a] void.” Frankenstein ix (1831).[1]
Consider, in light of those authorial references, how the majority’s factor 1 analysis might play out in literature. And why not start with the best? Shakespeare borrowed over and over and over. See, e.g., 8 Narrative and Dramatic Sources of Shakespeare 351–352 (G. Bullough ed. 1975) (“Shakespeare was an adapter of other men’s tales and plays; he liked to build a new construction on something given”). I could point to a whole slew of works, but let’s take Romeo and Juliet as an example. Shakespeare’s version copied most directly from Arthur Brooke’s The Tragical History of Romeus and Juliet, written a few decades earlier (though of course Brooke copied from someone, and that person copied from someone, and that person … going back at least to Ovid’s story about Pyramus and Thisbe). Shakespeare took plot, characters, themes, even passages: The friar’s line to Romeo, “Art thou a man? Thy form cries out thou art,” appeared in Brooke as “Art thou a man? The shape saith so thou art.” Bullough 387. (Shakespeare was, among other things, a good editor.) Of course Shakespeare also added loads of genius, and so made the borrowed stories “uniquely Shakespearian.” G. Williams, Shakespeare’s Basic Plot Situation, 2 Shakespeare Quarterly No. 4, p. 313 (Oct. 1951). But on the majority’s analysis? The two works—Shakespeare’s and Brooke’s—are just two stories of star-crossed lovers written for commercial gain. Shakespeare would not qualify for fair use; he would not even
- ↑ OK, one last one: T. S. Eliot made the same point more, shall we say, poetically. We often harp, he wrote, on “the poet’s difference from his predecessors.” The Sacred Wood 43 (1921). “[But] we shall often find that not only the best, but the most individual parts of his work may be those in which the dead poets, his ancestors, assert their immortality most vigorously. … No poet, no artist of any art, has his complete meaning alone.” Id., at 43–44.
