Essay on defamation and plagiarism
Bryony Lavery’s ‘Frozen’ was first staged at the Birmingham Repertory Theatre in 1998. Had it remained a low-key production performed at a regional English theatre it may have avoided the controversy that accompanied it. However, following the TMA award for Best New Play and a run at the National Theatre in London, ‘Frozen’ transferred to New York, firstly off-Broadway then to the Circle In The Square, where it was nominated for four Tony awards.1 But while the success of the play “ignited Lavery’s career”,2 the controversy moved her, in her own words, “into an area of doubt”.3 So what exactly was she guilty of, and how could she have avoided the charges of defamation and plagiarism?
One of the accusations levelled against Lavery was that she defamed prominent American criminal psychiatrist Dorothy Otnow Lewis, on whom one of the characters in ‘Frozen’ appears to be based. As well as similar educational backgrounds, both Lewis and Agnetha have almost identical areas of research and Lavery had even included some personal details that were so recognisable to Lewis that she commented:
Can you imagine what it is like to find that a character is not just like you; it is you?4
At the centre of Lewis’s accusation of defamation was that towards the end of the play the character of Agnetha reveals an affair with a male collaborator. Lewis believed that people would infer a similar affair had taken place with her collaborator Jonathan Pincus5. However, while Lewis, and those familiar with her work, could see the similarities with Lavery’s character, the playwright herself was insistent that she did not purposely use Lewis as direct inspiration for Agnetha:
These are not real people; they are characters that I have imagined with feelings that I have imagined.6
But does the fact that the character is fictitious and no similarity was intended mean there is no case of defamation to answer? An argument could be made that regardless of her intent, Lavery was still guilty of defamation. The legal basis for this (in English law) is a precedent set in the case of E Hulton & Co v Jones nearly 100 years ago, which established that:
In an action for libel it is no defence to show that the defendant did not intend to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff.7
The question in the case of ‘Frozen’ would therefore be, could a ‘reasonable’ person conclude that the character of Agnetha was ‘absolutely identifiable’ as Lewis?8 Given the wide-scale success of the play (including in Lewis’s homeland), coupled with the fact that Lewis was a prominent figure whose work was widely published and who had had a profile of herself published in the New Yorker, it could be argued that people outside of her family and friends could identify her. However, according to Malcolm Gladwell, on this issue, the playwright has no case to answer, as he states in his article, ‘Something Borrowed’:
Lavery has every right to create an affair for Agnetha, because Agnetha is not Dorothy Lewis. She is a fictional character, drawn from Lewis’s life but endowed with a completely imaginary set of circumstances and actions.9
To avoid claims such as this in the television and film industries, a practice known as ‘negative checking’ is carried out whereby researchers check that fictitious characters cannot be confused with real people. An example occurred with the fictional Inspector Morse; before the television adaptations were filmed, researchers checked with Thames Valley Police that no real life counterpart existed.10 However, this is rarely practised in the theatre.
Had a case of defamation been sustainable against Lavery, one of the legal defences open to her would have been to make an ‘Offer of Amends’, whereby a suitable correction and apology are made along with compensation and costs.11 While this case did not reach the courts and no such correction was made, in a 2007 compilation of Lavery’s plays an acknowledgement does appear in which Lavery recognises “the inspiration of Dorothy Otnow Lewis” and her work, as well as making reference to Malcolm Galdwell’s 1997 New Yorker article ‘Damaged’.12 It is this article and the accusations of plagiarism against both Lewis and Gladwell that form the basis of the chief charge levelled against Bryony Lavery.
In the writing of ‘Frozen’, Lavery claimed she was “immensely naïve and stupid”, and in trying to maintain accuracy in the piece she “wasn’t as careful as [she] should have been”.13 These words refer to the charges of plagiarism that arose after the play’s success on Broadway. Lavery was accused of lifting passages from ‘Damaged’, Gladwell’s profile of Lewis – including forming dialogue from quotes given by the psychiatrist – as well as taking material (some of it of a personal nature) from Lewis’s own book, ‘Guilty by Reason of Insanity’.14
Indeed, a comparison of ‘Damaged’ and ‘Frozen’ reveals a quite extensive use of material from the article, including sections used verbatim. For example, details from ‘Damaged’ about how Lewis’s colleague carried out his medical examination and the various tests applied to the subjects15 are reproduced in ‘Frozen’ as Agnetha tests the character of Ralph in an identical way.16 There is also the duplication of a study referred to in ‘Damaged’ that looked at a group of toddlers and how a particular abused child responded to a classmate in distress.17 Other small details are also taken, such as an encounter Lewis had with Ted Bundy during which he turned off the tape recorder as “he wanted to tell me things he didn’t want recorded”.18 In ‘Frozen’, Ralph turns off the tape recorder in a meeting with Agnetha, telling her, “I’ve been wanting to tell you things I don’t want recorded”.19 Phrases are also taken directly from Gladwell’s own writing, such as when he talks about “the difference between a crime of evil and a crime of illness” being “the difference between a sin and a symptom”, which is reproduced in ‘Frozen’.20
There are numerous other examples of the close similarities, and it is easy to see why both Gladwell and Lewis could feel as though Lavery had stolen their work, and, in Lewis’s case, elements of her life. But how does the arts community view plagiarism and what are the moral dilemmas that Lavery faced?
While it might be expected that writers would take a hard-line view of accusations of plagiarism, in a related instance where a prominent writer was alleged to have lifted material from another source, he found a swell of support amongst his peers. The accusations against Ian McEwan, which originated in a piece in the Daily Mail, alleged that he had stolen sections of his Booker prize-nominated novel (and later film adaptation) ‘Atonement’ from the memoirs of Lucilla Andrews, whose book detailed her experiences as a nurse during the Blitz, and that he had failed to give her sufficient credit.21 In response to the latter charge, McEwan pointed to an acknowledgement printed in ‘Atonement’, as well as the fact he had mentioned her “countless times from a public platform”.22 However, the agent for the late Lucilla Andrews said that although “she wasn’t approached for permission to use her autobiography – I think she would have been very happy to have been consulted.”23
In terms of the accusations of plagiarism, it is striking to note that, just as a comparison of ‘Frozen’ and ‘Damaged’ highlighted a number of glaring similarities, so too does a comparison of ‘Atonement’ and ‘No Time for Romance’, with passages of identical phrasing and historical detail.24 However, McEwan defended his actions by saying that “when you write a historical novel you do depend on other writers”, a view echoed in the wider writing community.25 In response to the charges against him, a number of leading writers, including Martin Amis and Margaret Atwood, signed up to a campaign to support McEwan.26 According to a literary agent, the writers were keen to defend the author because “it sets off alarm bells for them if genuine research is interpreted as plagiarism.”27 This comment brings up an interesting point and one that is equally applicable to Lavery concerning the line between plagiarism and research. Lavery’s defence of her actions was that she believed much of the material she used to be ‘news’ and therefore felt as though it was acceptable to use it.28
This is, according to a publishing lawyer who was interviewed for a story on the McEwan case, a “huge grey area” and, interestingly, one that is more of a moral issue than one of copyright infringement.29 While she was referring to the use of historical detail in fiction it seems equally applicable to Lavery who used certain medical details gleaned from Gladwell’s article and Lewis’s book. The lawyer also draws the distinction between the use of material in fiction and non-fiction.30 In the case of Gladwell, as a journalist, the medical information he included in his article was originally gleaned from another source. Referring to one of the passages Lavery was accused of plagiarising from ‘Damaged’, Gladwell admits that it might well have been “a reworked version of something I read in a textbook”.31 So does this mean Gladwell himself is guilty of plagiarism?
Maybe this fine line is the rationale behind Gladwell’s response to the plagiarism accusations against ‘Frozen’. While Lewis commented that she felt she had been “robbed” and that Lavery had “lifted” her life, Gladwell’s response was more philosophical.32 Even though he initially transferred his rights to ‘Damaged’ to Lewis in lieu of any lawsuit she might bring against Lavery, Gladwell said of the situation:
I would have been happy to let her quote whatever she wanted had she asked. But I wish she would have asked.33
Arguably, of the two, Lewis had more of a right to object to her treatment than Gladwell. After all, Lavery had included details about Lewis’s life in the play and invented potential libellous detail, as discussed above – although it could be suggested that the factual detail had already been disclosed to Gladwell for publication in his article, putting it somewhat in the ‘public domain’ – while from Gladwell she had stolen merely words and phrasing. It is clear that, as a journalist, Gladwell had a more realistic view of the creative process, commenting in ‘Something Borrowed’:
…by the time ideas pass into their third and fourth lives, we lose track of where they came from, and we lose control of where they are going.34
As previously mentioned, Lavery believed the information contained in the article to be ‘news’, and while this may not be a satisfactory explanation of her actions, it is clear that in writing ‘Frozen’, Lavery drew from a variety of sources.35 These included the personal experience of her mother’s unexpected death, footage of the relatives of children murdered by Ian Brady and Myra Hindley, as well as several books and articles based on real life events.36 By the time ‘Frozen’ came to life there was much source material from which she could develop the story and characters.
Given this wealth of material she gathered while researching her play’s subject matter, it could even be argued that any similarities to real life figures might not have been made consciously. Indeed, the idea of ‘subconscious infringement’ is something that has even been accepted, at least in part, by the courts. In a US case from the music world, Bright Tunes Music Corp v Harrisongs Music Ltd,37 the judge was convinced that musician George Harrison had not deliberately copied an earlier song in one of his compositions, which bore a striking resemblance in structure, melody and lyrics. While Harrison was ordered to pay damages, the case cemented the principle of ‘subconscious infringement’ in copyright law.38 The defence being that the combination of sounds was already in his mind when he composed his song. In effect he was unaware of the influence that the existing song had had on his own composition.39
However, this would appear to be unsustainable in this case, as Lavery was well aware of the real life influences on her work. She admits that the character of Ralph was “a fusion of Fred West and [child murderer] Robert Black”, while the character of Nancy has elements of the experiences of Marian Partington, whose sister was killed by Fred and Rosemary West.40 Indeed, she even goes as far as acknowledging the “enormous debt” she owed to a piece written by Partington that appeared in The Guardian, and contacted her before the play’s first production. On the use of Partington’s experiences she commented:
…you have to be hugely careful when writing something like this, because it touches on people’s shattered lives and you wouldn’t want them to come across it unawares.41
This statement suggests that Lavery was very much aware of the sensitivity of using real life influences, but from the point of view of those who had been personally touched by the issues in the play rather than from the point of view of those who supplied the factual detail.
One additional point to consider is that it may have been possible that Lavery did not believe she was solely responsible for identifying any copyright infringement. However, from a legal point of view it appears that the responsibility lies with Lavery. The first clause in one US playwright’s contract states clearly that the author should be “the sole owner” of the play and it should not have “been copied in whole or in part from any other work” and this is also the case in Great Britain.42 It should also be noted that, even prior to ‘Frozen’, Lavery was a prolific and experienced playwright with 40 plays to her credit, so should have been aware of her responsibility.
Given the issues discussed in the preceding sections, the question remains, what could Bryony Lavery have done differently?
There is no doubt that ‘Frozen’ stands as a powerful piece of theatre that was a success, both commercially and critically.43 But there is also no doubt that the way in which Lavery went about collecting, collating and utilising her research for the play was flawed.
An obvious way in which she could have avoided this controversy would have been simply to seek permission from Gladwell and Lewis before using their source material. However, the major problem that remains is the way in which Lavery used the material. In copyright law there is the notion of ‘non-literal copying’, which applies to works of fiction and is permissible as a (usually successful) defence as long as the defendant applies a sufficient ‘level of abstraction’; in other words the finished work uses elements of the original in a markedly different way.44 A recent case that demonstrated this defence concerned the book ‘The Da Vinci Code’. Here, it was alleged that the author, Dan Brown, had taken material, including the central theme of the book, from an earlier work, ‘The Holy Blood and the Holy Grail’.45 In rejecting the claim, the judge asserted that what Brown had taken from ‘The Holy Blood and the Holy Grail’ was at too high a level of abstraction; copyright did not subsist in ideas, rather it protected the expression of ideas, not the ideas themselves.46 Had Lavery adapted the material and changed some of the salient detail to make its source less recognisable, the charges of plagiarism may not have arisen at all. As Lewis remarked:
I wouldn’t have cared if she did a play about a shrink who’s interested in the frontal lobe…That’s out there to do47
She added that it was “wonderful” that popular television shows, such as CSI, used material that she and her collaborator “brought to light”.48 But, in Lewis’s opinion:
[Lavery] did more than that. She took things about my own life, and that is the part that made me feel violated.49
So again, it is the fine line between research and copying and the skill applied by the writer to create something original.
So taking everything into account, why did Lavery believe she could use the material in the way she did? As noted at the beginning, ‘Frozen’ was the work that put Lavery on the map, at least internationally, as a major playwright. Prior to its successes she worked for, in the words of one journalist, “the Cinderella sectors of theatre” where her career “never looked as if it would set the world alight”50 It is therefore reasonable to believe that she was unprepared for the play to attain the success that it did and for it to be the focus of so much attention.
Speaking after the controversy had taken place, Lavery commented on how it had affected her and changed the way she worked:
I make sure that I’ve left any research that I’ve done a very long way behind. What happened has made me much more careful.51
She also remarked on the fact that she “hadn’t taken care of other writers’ words well enough”, but Gladwell took a slightly different view.52 He recognised the importance of the play in a wider context, commenting that his words “had become part of some grander cause” and suggesting that this is the very essence of creativity.53 In a piece for the New York Times, Charles Isherwood asks where a shift he perceives has taken place “in cultural attitudes toward the meaning and uses of personal experience” leaves artists, whose job it is to translate “the unruly dross of daily experience…into narratives that…give us insight into our lives”.54 While Lavery undoubtedly crossed a line in using the material the way that she did, surely in ‘Frozen’ she also created an original narrative that brought some difficult and thought-provoking themes to a wide audience, to people who may not read the New Yorker or familiarise themselves with the work of criminal psychiatrists. For that achievement she deserves to be recognised as more than just “the playwright who was accused of plagiarism”.55
50Taken from Gardner, ‘I was naïve and stupid’. While the plagiarism controversy plagued Lavery for a while, it certainly did not end her burgeoning career or appear to have a lasting impact. Indeed, her follow-up to ‘Frozen’, ‘Last Easter’, opened on Broadway, something that is rare for a British playwright. See Thorpe, ‘Author ‘stole my life’, says psychiatrist’.
Bainbridge, David I, Intellectual Property (2009)
Hull, Geoffrey P, The Recording Industry (New York and London, 2004)
Lavery, Bryony, Plays 1 (London, 2007)
Lunney, Mark and Oliphant, Ken, Tort Law: Text and Materials (Oxford University Press, 2003)
Lessig, Lawrence, Free Culture (New York, 2004)
Neipris, Janet, To be a Playwright (New York and London, 2005)
Gladwell, Malcolm, ‘Damaged’, New Yorker, 24 February 1997
Gladwell, Malcolm, ‘Something Borrowed’, New Yorker, 22 November 2004
New York Times
LA Playwrights [http://www.laplaywrights.org]
United Agents [http://unitedagents.co.uk]
1Source: United Artists, http://unitedagents.co.uk/film/bryony-lavery/
2Taken from Lyn Gardner, ‘I was naïve and stupid’, The Guardian, 6 April 2006.
3Quoted in Gardner, ‘I was naïve and stupid’.
4Quoted in Vanessa Thorpe, ‘Author ‘stole my life’, says psychiatrist’, The Observer, 26 September 2004.
5Malcolm Gladwell, ‘Something Borrowed’, New Yorker, 22 November 2004.
6Quoted in Lyn Gardner, ‘In cold blood’, The Guardian, 26 June 2002.
7E Hulton & Co v Jones  AC 20, HL; Source: LexisNexis.
8Dorothy Lewis, quoted in Gladwell, ‘Something Borrowed’.
9Gladwell, ‘Something Borrowed, New Yorker, 22 November 2004.
10See Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 2003), second edition, p. 674
11Lunney and Oliphant, Tort Law: Text and Materials, p. 681.
12Bryony Lavery, Plays 1 (London, 2007), p. 96.
13Quoted in Gardner, ‘I was naïve and stupid’.
14Gladwell, ‘Something Borrowed’.
15Malcolm Gladwell, ‘Damaged’, New Yorker, 24 February 1997.
16Lavery, Plays 1, pp. 134–137; p. 146.
17Gladwell, ‘Damaged’; Lavery, Plays 1, p. 152.
19Lavery, Plays1, p. 188.
20Gladwell, ‘Damaged’; Lavery, Plays 1, p. 176.
21Taken from Ben Hoyle, ‘Literary lions roar in plagiarism row’, Times Online, 9 December 2006.
22Quoted in Ben Hoyle, ‘McEwan hits back at call for atonement’, Times Online, 27 November 2006.
23Quoted in Hoyle, ‘McEwan hits back at call for atonement’.
24See Hoyle, ‘McEwan hits back at call for atonement’.
25Quoted in Hoyle, ‘McEwan hits back at call for atonement’.
26See Julia Langdon, ‘It’s a matter of good manners, Mr McEwan’, Mail Online, 9 December 2006.
27Quoted in Hoyle, ‘Literary lions roar in plagiarism row’.
28Quoted in Gladwell, ‘Something Borrowed’.
29Quoted in Hoyle, ‘McEwan hits back at call for atonement’.
30See Hoyle, ‘McEwan hits back at call for atonement’.
31Quoted in Gladwell, ‘Something Borrowed’.
32Quoted in Jesse McKinley, ‘Playwright created a psychiatrist by plagiarizing one, accusers say’, New York Times 25 September 2005.
33McKinley, ‘Playwright created a psychiatrist by plagiarizing one, accusers say’.
34Gladwell, ‘Something Borrowed’.
35Quoted in Gladwell, ‘Something Borrowed’.
36Taken from Matt Wolf, ‘Breaking Ice in an Arctic Sea’, New York Times, 14 March 2004.
37Bright Tunes Music Corp v Harrisongs Music Ltd 420 F. Supp. 177 (S.D.N.Y. 1976).
38Taken from Geoffrey P Hull, The Recording Industry (New York and London 2004), second edition, pp. 64–65.
39A similar English case dealing with the issue of subconscious copying was that of Francis, Day and Hunter Ltd v Bron  Ch 587,  2 All ER 16. Source: LexisNexis.
40Quoted in Gardner, ‘In cold blood’.
41Quoted in Gardner, ‘In cold blood’.
42Source: LA Playwrights, http://www.laplaywrights.org
43In the 2005–2006 season, it was the fourth most produced play in the United States (outside of Dickens and Shakespeare). Source: Catherine Foster, ‘For ‘Frozen’, success and controversy’, Boston Globe, 22 June 2006.
44See David I Bainbridge, Intellectual Property (2009), p. 155.
45Baigent v Random House Group Ltd  EWCA Civ 247,  FSR 579.
46Taken from LexisNexis.
47Quoted in Gladwell, ‘Something Borrowed’.
48Quoted in Gladwell, ‘Something Borrowed’.
49Quoted in Gladwell, ‘Something Borrowed’.
51Quoted in Gardner, ‘I was naïve and stupid’.
52Quoted in Gardner, ‘I was naïve and stupid’.
53Quoted in Gardner, ‘I was naïve and stupid’.
54Taken from Charles Isherwood, ‘Her life, his art, your call’, New York Times, 3 December 2006.
55Bryony Lavery quoted in Gardner, ‘I was naïve and stupid’.