Monday, July 21, 2008

historical fiction and the real people in it

Vancouver writer Steven Galloway recently managed the Canadian version of "hitting it big" when foreign sales for his novel The Cellist of Sarajevo made him way more money in advances than the Canadian market alone could ever provide. As well, being chosen as one of Heather's picks for Indigo shoppers certainly didn't harm the book's appeal to Canadian readers. He's done very well, our Galloway. And good for him. I read the book recently, and it deserves all the continued attention it will get. Galloway handles gruesome subject matter and impossible human choices with emotional precision.

(Disclosure moment: Galloway and I know each other, and have shared a few laughs. He reviewed my novel for the Globe & Mail and once showed up to a reading I did in Vancouver. I wish we could have beers together often, but there's that whole country thing between us.)

I'm sure only those who survived the siege of Sarajevo can fully comprehend its many-layered absurdities, but Galloway's characters convince me they are there. Not that such convincing even matters. Galloway could have set his book in a completely fictional city siege, and it would have been just as effective. The borrowing of actual recent European history is, I think, incidental to how deeply Galloway enters into real human fear and courage. On the other hand, publishers do love their historical fiction, because readers love it as well. They love it with their wallets.

But history has returned to give Galloway a sharp kick in the shins. As has now been widely reported, the actual cellist referred to in Galloway's title, Vedran Smailovic, has given notice he's unhappy about a number of things, most notably that a now bestselling novel is about him. From the CBC.ca report on the controversy:

"It's not fair, it's not on. It's unbelievable," said the musician, who still composes and records music from a small village south of Belfast, in Northern Ireland.

"How can somebody steal your work, my, my sadness, my, my tragedy?"

Smailovic said that if people are making money off tales from his past, he is entitled to a share of it.

"They put my picture, my face, on the front, on the cover with no permission. They don't ask me — they use my name advertising their product. I don't care about fiction, I care about reality."


I haven't talked to Galloway about this controversy at all but I'm guessing, right now, whatever public posture he needs to assume for all sorts of good legal reasons, he probably feels pretty crappy about what Smailovic has said, especially the part about stealing tragedy.

I feel nothing but encouragement and profound happiness at the thought that my fellow Canadian novelist has actually made a bunch of money from something he wrote. Such an occurrence is ridiculously rare. The man has written two other very good, well-reviewed novels that probably made him enough to get some camping gear at Canadian Tire. Anyone who enters into a career as a writer of literary fiction in Canada with a serious plan to make huge money will have his delusion revealed to him on book number one. If he writes book number two, you can bet the money dream has died and the work continues for art's sake. To make a connection between Galloway's use of a well-known historical event and crass commerce may not be entirely inaccurate because of the wonderful accident of the book's success, but I doubt very much profit was the author's motive.

The historical story of Smailovic playing his cello in a mortar crater in Sarajevo is beyond beautiful. The man performed his public grief with a serenity and style every artist aspires to, and he did so within sight and range of deadly snipers and the same folks who made the surrounding rubble in the first place. He is a hero, and is treated as such in the book. Galloway builds his own fictional cellist character into a complex and fragile metaphor for battered redemption.

Should the world reward Smailovic for what he did? Absolutely. Should that reward be monetary? Why not?

Does Steven Galloway owe him money? I don't think so.

Many reports about this controversy have noted that the fictional cellist character is unnamed in the novel, and really only shows up in the first five pages. The rest of the book concentrates on the lives and actions of other Sarajevans with varying degrees of historical precedent. These are accurate points, but I'm not sure they're relevant. Galloway wrote a book of fiction, inspired by real events in our shared history. His product is a literary text, not more history. In other words, he has not claimed any ownership over what happened in Sarajevo. He has simply made art from it, in much the same way Smailovic made art from what was happening around him. And here I think Galloway himself would make a wry comment about Smailovic being the braver of the two artists.

I'm currently finishing up a Henning Mankell murder mystery that takes place partly in South Africa just after Nelson Mandela was released from prison. The novel's characters include then South African President Frederik Willem de Klerk and Foreign Minister Pik Botha, as well as Mandela himself. Mankell's books sell like crazy all over the world. Does he owe money to those who ended Apartheid?

I don't actually know if all the proper rights were cleared for use of the book's cover photo (which features the cellist in the rubble) but of course, if they weren't cleared and paid for, they should have been. As to the text, I believe Galloway's artistic responsibility was completed in his acknowledgments, and I expect he will go further than that and try to privately address any hurt feelings that remain.

Side Note:

I fully anticipate this blog's usual copyleft trollers to make some excited connection between this story and issues of artistic appropriation, or even fan fiction. Have at. But please, before you do, consider the difference between actual people and fictional characters, between actual events and created texts. These differences are kind of crucial to the whole discussion.

18 comments:

Susan Glickman said...

I appreciate--and agree with--your thoughtful analysis of this touchy situation. What I find particularly fascinating is that the issue of "appropriation" only comes up when people and events are addressed in fictional form. Had Galloway written an essay explaining the impact the cellist had upon him, the cellist would never have complained or felt exploited!

Odd, isn't it?

John McFetridge said...

When there's Ondaatje fanfic, the copyleft folks might get interested.

Literature has bumped up against this issue for hundreds of years, the line getting pushed and pulled. As Susan says, it requires thoughtful analysis and there will never be a one-size-fits-all rule.

Art is messy, everything is a work in progress and things will get worked out. In every one of these kinds of things there are underlying personal issues and each one is specific.

You have a novel about a guy watching the Stanley Cup (and even the story of how he got the job, which is very good) and a lot of what happens to the cup in your novel really did happen.

That's art, that's how it works. The 'rules' can be subtle and difficult to understand sometimes but most things worth spending time with are like that.

I'm now convinced there is no real copyright issue going on. It's something else entirely.

Infringer said...

FYI the CBC article I believe you quote from is this one.

Interestingly, you neglected highlight that the book includes a picture of Vedran Smailovic. One of your quotes does mention this but you did not address this important point directly yourself.

In this case I would say that this issue most closely resembles Mike Batt's "One Minute of Silence". In that case Mike Batt included one minute of dead air on his recording and, in jest, said it was 'co-written' by John Cage, who had a performance piece call 4 minutes and 33 seconds in which the entire orchestra did absolutely nothing. It was a sort of tribute to John Cage, as I suppose this piece of art is to Mr. Smailovic. The result however was that John Cage was able to successfully sue for copyright violation of, well, nothing. Given this precedent, Mr Smailovic may well have a case.

Unfortunately "thoughtful analysis" does not always cut it where money is concerned and that is why it is of utmost importance that the next copyright act amendment make a concerted effort to fully spell out fair use/dealings.

Regarding Susan's belief that appropriation is only ever raised as an issue in the case of fiction. She would do well to remember, or learn about, the fantasy sports leagues which caused huge copyright lawsuits in the States. They were based entirely on real events.

John said...

And so it goes...

Susan and McF, thanks for your comments, and let me help you with any potential confusion over the last comment.

Yes, he links to an article I made reference to. No, I'm not sure why.

Yes, he appears to have not read the part of my posting referring to the cover photograph.

Yes, he makes a very strange reference to a fairly obscure copyright case having nothing much of anything to do with what we're talking about.

Yes, he appears to even be wrong about the details of that case. The suit was not successful; it was settled. The song, A One Minute Silence was then re-released and made money.

Yes, he really doesn't seem to get that fantasy and fiction share a commonality.

And finally, no, none of this is out of the ordinary for this commenter.

Infringer said...

... and goes ....

John, the link was simply a courtesy to your readers. Some people like to see the context of the quotes they read. I'll grant that perhaps context is not as important to you as it is to others.

I'll admit sloppiness on my part regarding your comment on the photo. It was a few days ago I read this blog entry, and only today I commented on it. I missed the last paragraph in my skimming of it today. So sue me.

I'm not sure why you call it such a strange reference. Mike Batt mentioned John Cage by name, with regard to a piece of work which was inspired by John Cage, but would not generally be considered a derived work. There is a similar connection between this work and the real life cellist. Think of it as an analogy John. Maybe that would help you.

You may say I'm wrong about the success of the case, but I say you are arguing semantics. Settling for an undisclosed 6 figure amount is as good a success as winning in court. Better because you don't have all those pesky lawyer and court fees, and you don't risk a judge ruling against you.

Sure "fantasy and fiction share a commonality", but they are not the same. The fantasy sports teams are not something that the player can actually control beyond their initial creation. Not at all like a work of fiction. The standings of the teams through the year (the story or plot, if you prefer) are based entirely on the real life performances of the real life players. This is a significant departure from the normal fiction Susan was likely referring too.

And finally your post too, is the normal condescending tripe I've come to expect in reply to anything I've written. Even when I'm not disagreeing with you.

John McFetridge said...

So it goes, yes.

He's talking about the CBC Distribution (Fantasy Sports) vs. Major League Baseball which is essentially a contract dispute. CBC had a contract with MLB and the Players Association to use the players names in their profit-making game and when the contract expired, they just kept using them. So, at first they knew they needed an agreement then when they saw this copyright fighting coming along they thought they could jump on a bandwagon and get something for free they previously had to pay (a tiny percentage) for. It didn't work.

That's pretty much the story we see over and over in all these very rare instances it makes the news.

The thing is, in the fantasy sports issue and in the John Cage thing the people using the names want to use those specific names. They don't create their own players and that guy could have left out the, "Co-written by John Cage," except that was his point - he was trying to hang on the coat tails of something someone else already created and directly profit from it. And, as JohnD points out, he did in fact profit from having himself associated with the far more famous John Cage.

The Cellist of Sarajevo doesn't resemble this at all. Stephen Galloway didn't write a book about Vedran Smailovic, using his name and events from his life; he wrote a book of fiction, containing fictional characters and events and included a widely reported historical event. As tens of thousands of novels have. In fact, it might be tough to find a novel in which you CAN'T trace the events it's based on.

That this isn't clear to people is what I mean by art being messy and every once in a while (a very, very rare once in a while) the parties involved fight like my kids and need Daddy to break it up and decide what to do. Here we call it the court.

To imagine a single law that can, "fully spell out fair use/dealings," of things that have yet to be created is asking a lot.

Unless by fair/use dealings you just mean no copyright at all. But of course, if that's what you mean, you'd come right out and say it, wouldn't you?

John said...

McF,

As I've tried to suggest to you before, the patient explanation is commendable, but don't expect it to take.

BTW, I'm writing a fictional story right now in which the Toronto crime writer John McFetridge attends the MLS All Star Game tonight and buys a fellow author one of those gigantic BMO beers.

It's gripping.

Infringer said...

That's interesting. I thought it did work

"that guy could have left out the, "Co-written by John Cage," except that was his point - he was trying to hang on the coat tails of something someone else already created and directly profit from it" ... "The Cellist of Sarajevo doesn't resemble this at all. Stephen Galloway didn't write a book about Vedran Smailovic,"

Yes, while I agree the book isn't about Smailovic, I'm not sure I'd buy that Galloway wasn't "trying to hang on the coat tails of something someone else already created". As you say it was a widely reported event, and including the fellow's picture certainly suggests that he figured it would sell more books.

I agree that no law can spell out fair use completely. But some effort in this regard would go a long way. And no, I do support copyright, Just less then what creators have enjoyed in the past. Who is to say what is the optimum amount of copyright to have? Or is more always better?

JohnD? There is certainly no stopping you from expressing your opinion, but I think the record of this blog would show I am a lot more understanding and accepting of other people's opinion then you are.

John said...

Hey McF,

Apparently there's no stopping me from expressing my opinion... on my own blog.

Anyway, for the actual record all good faith argumentation is welcomed in this house (though there's no guarantee I'll agree with it). Infringer wore out the terms of the welcome in an early visit when he peed on the rug.

And that rug, man, it really tied the room together.

John McFetridge said...

Oh well, I guess it did work. I've lost interest in baseball (though I have to say, that doesn't even seem like a copyright issue to me and I'd side with the fantasy sports guys). Really, since my Expos left Montreal, even though they hung in there longer than I did.

The Impact, though, are shite.

"And no, I do support copyright, Just less then what creators have enjoyed in the past."

Like many things, of course, less than 1% of creators "enjoy" many benefits from their copyrighted work (beyond the pride of having created it and the knowledge that it's theirs forever - oh, right ;) and after that it just seems like you're kicking people while they're down, taking away something of so little value to anyone else. It looks like spite.

It does seem like something that affects so few people do we really need special laws? Let George Lucas take people to court when he feels the need (as he said, he's been sued for every movie he's ever made except Howard the Duck - gee, I wonder what's unique about that one?). The copyfighters are really only worried about blockbusters. Maybe you could have special laws for those.

And, you know, almost every "copyright" fight has been about something else. The Harry Potter one is a geat example. There are dozens of books about Harry Potter and one lawsuit. What was different about that one? (I can tell you if you'd like to know, but let's say it was personal) The famous George Harrison "My Sweet Lord" lawsuit really had nothing to do with the material and copyright - it was also personal, his ex-manager went out and searched and bought the rights to "He's So Fine" with the intention of taking Harrison to court.

If we're upset about anything here it should be how people abuse the court system to settle personal squabbles.

In the case of The Cellist of Sarajevo it's really the cover image that started the kerfuffle not the material in the book. And, I guess, the success of the book brought it to the notice of a lawyer.

And it also seems like a personal issue, not a matter for the courts at all, but of course it will likely end up there.

Now, JohnD, as much as your story about the (I like to think "rising") crime writer at the All-Star Game interests me I'm afraid it'll have to remain fiction. I'm looking like a bit of a wanker here (I haven't been to a game since the Pachuca friendly), but I won't be at this game, either. I may not be able to make a game till the Revs on August 23rd. I'll buy you two of those beers then.

John said...

No worries. It looks like I'll get soaked anyways, and not in beer. But nothing can stop me from going and mocking Beckham. Nothing.

I would also side with the fantasy leagues, of course, since they are using historical facts to create an entirely fictional story about teams of unrelated players. My ongoing confusion here is how this case challenges Susan's initial query about fiction. But that's okay, I'm very used to being confused by Infringer's "aha!" moments.

By the way, I think Michael Geist is defining the word "fair" in public this evening at a gallery in TO. I'd be interested in the performance as an art piece, but I have this far more interesting ticket in my pocket.

Susan Glickman said...

Sorry guys--I know nothing about fantasy leagues; never even heard about them until this moment.So I'll have to leave that particular issue out of consideration.So I'll just stick to the issue at hand, which is still bugging me.

There's a longstanding tradition of "appropriating" real characters in historical fiction; the dead can't complain, obviously. Using living people is much trickier, and all we are entitled to do, I would think, is allude to their public activities; we can't start attributing thoughts or speech or motives to someone without becoming potentially libelous. This is just common sense.

Courtesy would demand, however, that Galloway ask for permission before using a portrait of a living person as the cover of his book. I think that had he not used that image and then called the book what he did, the cellist would have had no grounds for complaint. It's a great title for sure, but it was poor judgment on the part of the publisher to go with it.

John McFetridge said...

I hope the mocking of Beckham went well. And Donovan. Looks like DeRo may have saved the day.

Anyway, the whole using real people is a tricky matter. WP Kinsella has JD Salinger as a character in Shoeless Joe Jackson Comes to Iowa, but in the movie version they made the character a fictional novelist and he was played by James Earl Jones (maybe Darth Vader as JD Salinger would have been even better, who knows).

I'm sure there are thousands more examples and each one has to be considered on its own. There can be no single 'rule' for art.

But it's very, very rare for this kind of thing to end up a copyright issue.

And, the weird thing is, on this all of us here agree, Stephen Galloway was perfectly within his rights as a novelist to have characters in his book talk about a guy playing his cello in the bombed out rubble of Sarajevo.

The cover image is a whole other issue.

Infringer said...

JohnD, alas no, there is no stopping you. We must merely be content with bringing a bit of balance to your postings.

WRT your taste in home decorating and your carpet, may I suggest if you don't want it peed on, you should refrain from upholstering the toilet.


JohnMcF,

"Like many things, of course, less than 1% of creators "enjoy" many benefits from their copyrighted work (beyond the pride of having created it and the knowledge that it's theirs forever - oh, right ;)"


While I can't speak to those specific numbers I would suggest that is largely because most creators create their work as employees. None the less, someone does always enjoy the benefit of copyright, even if it is not the creator. Who in the end owns the copyright is not really a copyright issue, but a contract issue.


" and after that it just seems like you're kicking people while they're down, taking away something of so little value to anyone else. It looks like spite."

That is the problem with copyright. The term and breadth is arbitrary. Copyright owners seem to believe that whatever rights they currently have are in fact natural rights so everytime it comes up for reevaluation the starting point always seems to be the existing copyright law, rather than no copyright, or the original copyright. The result of which is a creeping monopoly which gets ever more broad and long. (This week the EU is set to extend copyright on sound recordings to a ridiculous 95 years.) It is not kicking them while they are down, but perspective is everything.

"It does seem like something that affects so few people do we really need special laws?"

This statement has never been further from the truth than it is now. In this new digital world we live in copyright affects everybody, in ways that it was never intended too. That is why I emphasize a clear understanding of fair use in law, so that everyone knows where we stand and maybe we can avoid the expenses of frivolous lawsuits.

"If we're upset about anything here it should be how people abuse the court system to settle personal squabbles."

Yes, Yes, Yes, which is again why the laws need to be clear and reasonable up front. (Two criteria C-61 fails miserably)

"In the case of The Cellist of Sarajevo it's really the cover image that started the kerfuffle not the material in the book. And, I guess, the success of the book brought it to the notice of a lawyer."

I'm sure this statement is 100% correct as well.


JohnD

"My ongoing confusion here is how this case challenges Susan's initial query about fiction."

Susan proposed that "appropriation only comes up when people and events are addressed in fictional form." and yes while there is a certain fiction component to fantasy leagues, they are very strongly based on real events and real statistics. It is the stats and the player names that were the subject of copyright in this case. I was giving her more information about appropriation which is not fiction. If you don't get it John, that's OK. Just let it slide. Others will connect the dots even if you don't.

John McFetridge said...

"In this new digital world we live in copyright affects everybody, in ways that it was never intended too."

You know, this is true.

There's a very creepy ad running on the radio these days for some database company bragging about how in this new age, "information is the new currency" or something like that and it's quite frightening to think that some people will own the information.

In that case your copyfight is noble.

I still say you have to find a way to seperate that completely from the horde of guys (and they're always guys) making all this noise about DVDs and downloading songs - because art is a completely different issue and it shouldn't dominate this debate the way it does.

(unless I'm right that the vast majority of people involved in this "fight" really don't care about these issues at all and just want to download free movies)

"Copyright owners seem to believe that whatever rights they currently have are in fact natural rights so everytime it comes up for reevaluation the starting point always seems to be the existing copyright law, rather than no copyright, or the original copyright."

Well, that's the way people are about rights. When we talk about civil rights for everyone we don't start over every time with 'no rights for anyone but royalty' or only rights for male property owners. We try to build on what we fought for.

Extending the copyright to 95 years for sound recordings may or may not have a big effect - licensing music in movies got pretty expensive so most filmmakers in Canada stopped using crappy old pop songs and started getting new music written, but Hollywood just paid the bill because they're lazy, risk-averse storytellers and rather than produce a good scene that goes to the heart of the emotion they prefer to just tap into an old song that already does that.

Maybe if too much stuff is too expensive to use (because it's never denied, it's just sometimes too expensive, though even that's pretty rare and deals are usually easy to make with a little effort) we'll get a lot more new art, maybe that would even be better than cannibalizing the old stuff.

For me, I live in fear of a world of nothing but fanfic - not for the copyright abuse but for the crappy, unoriginal that wouuld be produced.

Art takes discipline. Sure, we all stand on the shoulders of giants, but we still have to stand, we can't just piggy-back forever.

John said...

McF,

Fantastic game last night -- I'll be blogging about it (I have pictures!). Brennan and D-Ro got excellent time on the pitch. Even the weather cooperated.

I think what frustrates me most in all of this is how completely the traditional arts argument is ignored or, even worse, consistently restated as something it's not. I'll be listening to my secret recording of Michael Geist's love-in from last night soon, and based on what's been reported by my spies, I expect to hear a lot ill-informed people saying things like "of course artists need to be paid, but..."

It's this quick dismissal of the central issue for artists, and the ridiculous rhetoric and kneejerk angry diatribing against corporations and Americans that brought me into this discussion oh so long ago when I wrote about it on the THIS blog.

And before ifwhinger jumps, let me point out that I don't mean payment for artists is the central issue for artists; I mean that this is how the other side portrays it, then dismisses it. I believe respect is the central issue for artists, and I believe that respect -- a true respect -- has been conveniently discarded for the sake of making cheap rhetorical points. "Why sue your fans?"

There is a "broad social movement" in the works that butters its own bread by ignoring and dismissing an entire professional segment of the population. It's self-serving, blatantly discriminatory and not in the least interested in truly balanced discussion. And it's based, for the most part, on the same kind of cheap, philosophy 101 debate tactics ifwhinger brings to each of my comment streams. Cowardly, passive aggressive, dishonest, uninformed attention-seeking disguised as concern for freedom.

I agree a copyfight is noble -- I've said again and again, in print, that I admire Lawrence Lessig's writing and ideas even as I disagree with much of what his followers do and say. But the play-politics that is going on around this bill is ridiculous and disturbing.

The Canadian copyfighters have made their bed, and they've done it sloppily, lazily and in the spirit of self-promotion. I find nothing to admire in the movement as it has developed to date, and I was one of the first to join the Facebook group, seeking a balanced discussion abut actual fairness.

I was as clear as could be in my invitation to anyone turning this stream into a discussion about the current copyfight. "...consider the difference between actual people and fictional characters, between actual events and created texts." I can't be bothered arguing with anyone who doesn't read. And here let me give notice -- I won't be defining text, again, for those who don't know what it means.

John McFetridge said...

DeRo's going to look pretty good on TFC. As somebody said this morning, he's done far more for the MLS than McBride, so he should also be accomodated to play in his hometown. Mo will make it happen, you'll see.

The anti-corporate and anti-Americanism was a bit of a tip-off for me that people were being duped. There was never any interest in Canadian "freedom," just anger at those evil Americans putting "locks" on their product - product it turns out, these people simply can't live without. If it means getting into a sloppily made bed with some other American corps, they have no problem with that - don't even think about it.

And I say again, it's really too bad because there are some significant changes going on here as to who "owns" information and all this smokescreen media about Hollywood movies and downloading songs is working - the real debate isn't happening.

And I say again, if anyone cares, that the treatment of the artists is the canary in this coalmine and the people involved have shown they don't care what gasses they let loose to get what they want right now.

You can be sure people with some long-term vested interests are paying close attention.

There are a few "writers" involved in this debate that I think of as Paris Hilton - sure, they're job is "writer," but really they get paid to go to parties with their fans.

John McFetridge said...

Oh yeah, one more thing.

"Why sue your fans?"

Right, and the flip side of that would be, "Why acquire stuff you really like in a knowingly dishonest way?"