It was quite an event when William Gaddis published a new novel. It
did not happen very often. A Frolic of His Own from 1994 was
Gaddis's fourth novel in an almost forty-year career. His first novel,
The Recognitions, came in 1955. It was followed by JR (1975)
and Carpenter's Gothic (1985). Unlike many of his fellow writers,
Gaddis had "never been in a rush to get into print," as
he put it in a recent interview.(1)
In preparation for each of his novels he did careful research
into the area of American society or culture that would form the background
for the plot. In his first novel, the plot is shaped around the American
art world. JR takes place within the world of business, and
A Frolic of His Own takes us through the complexities of American
law. "The law is an immense attempt to establish order or to
rescue it-I'm not sure which," Gaddis said when the book was
published. "And yet, it's led to a carnival of disorderly conduct
on all sides. This kind of paradox fascinates me."(2)
The opening sentence of the novel announces its theme: "Justice?You
get justice in the next world, in this world you have the law."(3)
The law is everywhere in A Frolic of His Own. To begin with,
the novel's title is a legal phrase used in cases of imputed negligence.
It describes the activities of an employee that, though resulting
in job-related injuries, do not entitle the employee to compensation.
The main character of the novel, Oscar Crease, is the failed offspring
of a famous legal family. His grandfather sat on the US. Supreme Court
together with Oliver Wendell Holmes, and his ninety-seven-year-old
father is a distinguished judge in Virginia. A middle-aged community-college
history teacher and would-be playwright, Oscar has managed to write
a play based on his grandfather's Civil War experiences. The play,
entitled Once at Antie-tam, has never been published, nor has it ever
been produced on stage.(4) It
is not a particularly good play, but it constitutes Oscar's last hope
for fame, respect, and recognition-especially from his father, who
has always paid more attention to his legal career than to his son.
When a Civil War movie is released whose plot is suspiciously close
to that of his play, Oscar does not hesitate to bring a copyright
infringement suit against the movie's producer.(5)
The plagiarism suit is not the only legal matter in which Oscar is
involved. When we first meet him, he is in the hospital, recuperating
from injuries inflicted by his own car, which ran over him while he
was trying to jump-start it. His injuries ate by no means severe-within
days he is perfectly able to walk again-but that does not prevent
him from embarking on a million-dollar suit for pain and disfigurement.
As both owner of the car and victim of the accident, Oscar is suing
himself, thus becoming the ultimately litigious American. This suit
is neither more nor less absurd or pathetic -- or hilariously funny,
for that matter -- than the various suits in which the other characters
of A Frolic of His Own are engaged. Take for example the $700
million trademark infringement suit brought by the Episcopal Church
against Pepsi-Cola on the grounds that the anagrammatic relationship
of their names is no accident. Or the two suits involving the socialite
Trish, who gets herself pregnant by a young man and proceeds to have
an abortion without consulting him. Trish hires one set of lawyers
to bring damages for "fetal endangerment" and another to
defend her abortion.
There are suits everywhere. And for every suit there is a countersuit
or an appeal, all of which run up enormous costs. Scattered throughout
the novel are legal opinions, complaints, answers to complaints, and
depositions, many of which at first seem ludicrous but eventually
turn out to serve some purpose. Gaddis's characters all seem convinced
that-the place to turn in search of answers, definitions of right
and wrong, is the country's justice system. A Frolic of His Own
reflects how "the civil complaint [has become] ... the sonnet
of our times," as Robert Weisberg puts it. Oscar and his fellow
characters are "not so much aberrant in [their] mental condition
as representative of us all in [their] belief that the civil justice
system is the best medium for all desperate hopes for recognition,
respect, and solace."(6)
Gaddis ridicules law-permeated America; he exposes the obsession with
law and lawyers that he sees all around him. But his satirical attacks
never obscure his affection for the law and for the people for whom
it has developed into an ideology. In this, as well as in the levels
of complexity and subtlety that he succeeds in creating as the plot
unfolds, A Frolic of His Own differs from other "lawyerly"
novels on the contemporary American cultural scene. But there is one
other thing that makes A Frolic of His Own stand out, and that
is the sincerity with which Gaddis attempts to reopen discussions
that have been declared dead or at least obsolete by deconstructionist
and postmodernist critics. The novel is about old-fashioned themes
such as divided selves, the originality of art (or lack thereof),
the corruption of the ideal and the aspirational by the vulgar; at
the same time it concerns more contemporary themes such as the impact
of multiculturalism on national and personal identity. It will not
do to dismiss Gaddis curtly as an elitist snob. Old and new, the questions
he raises truly matter, and readers find refreshing the honesty with
which, leaving them acutely, painfully aware of the contradictions
and absurdities of the legal system, the author tacitly admits that
he, too, can only guess at possible answers.
A Frolic of His Own touches upon a myriad of themes and aspects
within American history and culture. One chapter cannot do justice
to them all. In what follows, the focus will be on Gaddis's discussion
of law as an engine for cultural redemption. When Gaddis describes
how his fellow Americans grasp at the machinery of law to lend their
lives some dignified order, it will be argued, he puts his finger
on an important contemporary phenomenon. While the country's legal
system may once have been able to supply redemptive justice, it has
become too wordy and bureaucratic to do so today, he implies, thereby
wisely advising his readers not to ask too much of the country's judges
and other legal servants. I shall take as my point of departure the
copyright infringement suit in which Oscar Crease is involved, and
around which most of the plot revolves. My discussion of this lawsuit
will be preceded by an analysis of law as a powerful form of expressing
and defining meanings in American public life.
Law and the Expression of Public Values
In an important discussion of Gaddis's first novel, The
Recognitions, Tony Tanner relates "the notion that the ordinary
individual and the artist alike may be living their lives within an
intricate system or pattern of fictions" to the "search
for some recognition of non-fictional reality." Together, he
says, these "form a recurrent American theme which no one has
explored at greater length than William Gaddis in his novel The
Recognitions. " The relationship between recognition and
invention is worth examining, Tanner continues, since a true act of
recognition for Gaddis "is more profound than any act of invention,
and ... the greatest achievement of any invention or art work is when
it frees you into a recognition of reality."(7)
Tanner's insight is as pertinent to A Frolic of His Own as
it was to Gaddiss first novel. Gaddis remained preoccupied with the
recognition of reality and possible ways in which to facilitate it.
It will be argued here that Gaddis sought a contemporary American
reality-transcendental or material-in the law.
He did not make it easy for his readers. As in his other novels, in
A Frolic of His Own he used the technique of nearly continuous,
minimally punctuated speech. Dashes indicate dialogue, and it takes
a real effort on the reader's part to sort out the various voices-to
figure out who says what. Language is obviously important; it is through
language that we get to know the characters and their feelings and
problems. In Gaddis's work, as Jonathan Raban points out in his review
of A Frolic of His Own, "language is where we live and
what we are. It's all we have."(8)
At first sight, the world of words that Gaddis elaborates merely seems
pointless and chaotic. The characters ramble on in a manic and selfcentered
way. They constantly interrupt each other, making it impossible for
anyone to express a coherent line of thought. In addition, their author
keeps interrupting the narrative, such as it is, by inserting a variety
of texts, chiefly legal documents, but also Oscar's play "Once
at Antietam," of which we get close to seventy pages. In the
first of these legal documents, Oscar's father's opinion in Szyrk
v. Village of Tatamount et al., old Judge Crease addresses the problem
of language. The Szyrk case, which is one of the most ridiculously
funny in the novel, involves a dog belonging to a small black boy
in Tatamount, Virginia, which runs into a massive free-standing sculpture,
Cyclone Seven, and cannot get out. When the creator of Cyclone Seven,
Mr. Szyrk, "a sculptor of some wide reputation in artistic circles,"
learns that the fire brigade is all set to help the dog get out with
the aid of acetylene torches, he seeks an injunction to prevent the
village and its fire brigade from tampering with his masterpiece.
It is Mr. Szyrk's claim "to act as an instrument of higher authority,
namely `art"' that gives rise to the following observations on
Judge Crease's part:
... we may first cite [the] dictionary definition [of
"art"] as "(1) Human effort to imitate, supplement,
alter or counteract the work of nature." Notwithstanding that
Cyclone Seven clearly answers this description especially in its last
emphasis, there remain certain fine distinctions posing some little
difficulty for the average lay observer persuaded from habit and even
education to regard sculptural art as beauty synonymous with truth
in expressing harmony ... obliging us for the purpose of this proceeding
to confront the theory that in having become self-referential art
is in itself theory without which it has no more substance than Sir
Arthur Eddington's famous step "on a swarm of flies," here
present in further exhibits by plaintiff drawn from prestigious art
publications ... serving only a corresponding self-referential confrontation
oflanguage with language and thereby, in reducing itself f to theory,
rendering it a mere plaything, which exhibits the court finds frivolous.(9)
Judge Crease is basically making fun here of contemporary postmodern
attempts to textualize everything. Yet his mandarin discourse is itself
in danger of slipping into wholesale reflexivity, so that Harry, Oscar's
stepsister Christina's lawyer-husband, presently understands him to
be saying precisely the opposite of what he is in fact saying. When
Christina complains to Harry that it is only lawyers who can understand
legal language, and that it is all a conspiracy anyway, Harry defiantly
shoots back, echoing Judge Crease,
But, but damn it Christina that's what we're talking
about! What do you think the law is, that's all it is, language ...
it all evaporates into language confronted by language turning language
itself into theory till it's not about what it's about it's only about
itself turning into a mere plaything the Judge says it right there
in this new opinion.... (10)
'Precisely because of the tendency of Gaddis's characters to ramble
on at the most frantic pace without seemingly getting anywhere, we
are tempted to take such outbursts as an invitation to see the fictional
world Gaddis creates for us as a postmodern one full of plurality
and indeterminacy. As we move further into the novel, however, we
realize that "the confrontation of language with language"
exposed by Gaddis does not so much reduce language to theory as it
simply constitutes an attempt on the part of his characters to make
the most of it, to do the best they can in their daily late-twentieth-century
struggle to communicate. "Gaddis' nasty exposes of legal language
do not really purport to show," as Robert Weisberg explains,
"that law is ultimately about language, but that law is, unpostmodernistly
speaking, about injustice or at least the visceral human feel of injustice."(11)
The various documents interleaved throughout Gaddis's massive tome
may strike the reader as annoying and unnecessarily tedious interruptions
of the narrative, but they are full of shrewd observations and common
sense. They have a peculiar power of their own and "provide the
novel's only moments of stability, illusory flickers of presence,
agency, closure, respite, justice even."(12)
When Christina wonders why it is that her stepfather "spends
his precious time on this piece of junk sculpture and some dead dog,"
her husband Harry answers: "Trying to rescue the language, Christina.
Wait and see."(13) The
implication is that judges such as judge Crease may help rescue language
from postmodern attempts to textualize everythingthe kind of textualization
that the old judge pokes fun at in his opinion quoted above. It is
not that lawyers and judges are better or more lovable persons than
anybody else. There are in fact a number of highly unflattering portraits
of jurists in the novel, Judge Crease himself being one of them. It
is just that in the 1990s it is to the law that people look for order
and discipline. "The point is," says Robert Weisberg,
that even though the legal system is a "jerrybuilt
evasion" of reality, there is a reality to evade. Though the
characters are fools to believe that the legal system they have made
or inherited will bring them justice-or even that they deserve justice-they
are not fools to believe that something like justice could exist and
perhaps has existed. For Gaddis, justice is not quite so distant as
Utopia ... It is a "real ideal" and one which this species
should be capable of achieving, but which, in Gaddis' almost vindictively
angry view, this species has idiotically botched.
In addition to being the area of contemporary American culture that
may further what Tony Tanner calls "the pilgrimage" toward
reality,(15) the law has increasingly
come to be seen over the past few years as a form of expression that
is extremely powerful "in defining meanings in our public life."(16)
In his most recent book, Law's Promise, Law's Expression, Kenneth
L. Karst argues that the United States is presently witnessing a "cultural
counterrevolution," a "profound disquiet" felt by a
number of Americans who have felt left out, even threatened by the
successes of the civil rights movement, the women's movement, and
the gay rights movement. This cultural counterrevolution evokes visions
of an earlier social order, a traditional rank-ordering of groups,
and it is inextricably bound up in law.
Because the political aspect of a clash of cultures is a contest over
public meanings, the law is a natural focus of contention, as the
community's definitive expression of those meanings. It is this function
that makes law, in Thurman Arnold's words, "a great reservoir
of emotionally important social symbols." (17)
To the counterrevolutionaries, according to their hostile critics,
the promise of law is first of all to impose order on a chaotic society
and to have that order "embodied in a formal public acknowledgment
of the dominance of their values." Second, and not unrelated,
law's promise is to uphold an ideology of masculinity that treats
power as its own justification and equates the proof of manhood with
the expression of dominance.
The heart of the ideology of masculinity is the belief that power
rightfully belongs to the masculine-that is, to those who display
the traits traditionally called masculine. This belief has two corollaries.
The first is that the gender line must be clearly drawn, and the second
is that power is rightfully distributed among the masculine in proportion
to their masculinity-as determined not merely by their physical stature
or aggressiveness, but more generally by their ability to dominate
and to avoid being dominated.
What the counterrevolutionaries are asking for, in other words, is
"the political and cultural equivalent of a copyright or a trademark.
"(18) They want the country
at large not only to acknowledge that their cultural and political
points of view are the "correct" ones, but also to elevate
these views into official public policy and law.
With A Frolic of His Own, William Gaddis enlisted in the ranks
of the counterrevolutionaries. His is an unusually sophisticated contribution
to the cultural debates presently ravaging the United States, to be
sure. Unlike the mainly southern, lower income, evangelical or fundamentalist
Protestants and practicing Catholics with limited formal education
that make up the largest number of the constituency for cultural counterrevolution,
(19) Gaddis did not act out
of status anxiety, out of fear that he is losing out politically and
economically. What he did share with the average counterrevolutionary,
however, was a profound confusion as to what the effects have been
on traditional American values of the inclusion of a number of new
groups of Americans as full participants. Are the nation's subcultures
correct when they claim that legal and cultural universalism threaten
to undermine them? And if so, does this mean that the kinds of things
Americans used to believe in, such as American exceptionalism and
civic culture, solidly anchored within Western philosophy and culture
and aspiring to embrace everyone, have now become obsolete and ought
to be discarded altogether? These are some of the questions that preoccupy
Oscar Crease-and his author-as he embarks on a quixotic defense of
originality that may or may not become a crusade for that "cultural
copyright" Karst speaks of.
Intellectual Property and Anxieties of Manhood: Oscar
Crease"s Copyright Infringement Suit
Copyright Law: History and Current Definitions
The Congress shall have power ... to promote the progress of science
and useful arts by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries.
Article I, Section 8, Clause 8 of the United States Constitution does
not use the terms copyrights and patents, but it has been understood
from its very beginning to cover both .(20)
The clause is simple and direct, but not entirely clear. Is copyright,
for example, a form of property, a personal right of the author, or
a combination of personal and property rights? Was it conceived by
the framers for the benefit of the author or the public? And what
does "useful arts" mean-is a soap opera as useful as a novel
by William Faulkner? These are just some of the questions upon which
scholars have been unable to agree over the years.
The Copyright Act of 1909 states:
The enactment of copyright legislation by Congress
under the terms of the Constitution is not based upon any natural
right that the author has in his writings ... but upon the ground
that the welfare of the public will be served and progress of science
and useful arts will be promoted by securing to authors for limited
periods the exclusive rights to their writings ... Not primarily for
the benefit of the author, but primarily for the benefit of the public,
such rights are given.
As some legal scholars have since seen it, however, copyright ought
not so much to foster the creation and dissemination of intellectual
works for the public welfare as to benefit the individual author.
Here is Harvard law professor Nathaniel Shaler commenting, in 1936,
on the special kind of rights an author has to his work.
When we come to weigh the rights of the several sorts
of property which can be held by man ... it will be clearly seen that
intellectual property is, after all, the only absolute possession
in the world ... The man who brings out of the nothingness some child
of his thought has rights therein which cannot belong to any other
sort of property.
The interpretation of the words "useful arts" has been linked
over the years to the issue of whose benefit is more important, that
of the general public or that of the author. Those who have been chiefly
concerned with the public good have attempted to answer questions
that look very familiar to students of American studies. Do the words
"promote" and "useful" indicate an assessment
of a work of art in terms of its educational value, and if this is
indeed the case what is and is not educational? Is there a qualitative
difference between a highbrow and a lowbrow piece of art, and if so
who is qualified to say so? In a famous case from 1903, Bleistein
v. Donaldson Lithographing Co., Justices Holmes and Harlan discussed
precisely these issues. The case concerned the copying in reduced
form of three chromolithographs prepared as advertisements for a circus.
Holmes delivered the opinion of the court:
It would be a dangerous undertaking for persons trained
only to the law to constitute themselves final judges of the worth
of pictorial illustrations, outside of the narrowest and most obvious
limits. At the one extreme some works of genius would be sure to miss
appreciation. Their very novelty would make them repulsive until the
public had learned the new language in which their author spoke ...
At the other end, copyright would be denied to pictures which appealed
to a public less educated than the judge. Yet if they command the
interest of any public, they have a commercial value-it would be bold
to say that they have not an aesthetic and educational value-and the
taste of any public is not to be treated with contempt.
To this, Holmes's colleague on the Court, Justice Harlan, countered
in his dissent that "if a chromo, lithograph, or other print,
engraving, or picture has no other use than that of a mere advertisement,
and no value aside from this function, it would not be promotive of
the useful arts, within the meaning of the constitutional provision,
to protect the 'author' in the exclusive use thereof. . . ."
More recently, the issue of copyright has also been connected to First
Amendment debates involving freedom of speech. Thus, in Harper &
Row Publishers, Inc. v. Nation Enters (1985), Justice O'Connor invoked
the potentially beneficial interdependence of copyright and the First
Amendment by emphasizing that "it should not be forgotten that
the Framers intended copyright itself to be the engine of free expression.
By establishing a marketable right to the use of one's expression,
copyright supplies the economic incentive to create and disseminate
ideas ." (21) Intellectual
property and patent rights have furthermore become hot issues in relation
to current genome and other genetic engineering research as well as
to computer technology. Gaddis's choice of copyright law as the framework
for his critical analysis of the current state of American culture
is therefore an excellent one. Before we turn to Oscar's copyright
infringement suit, however, we need to take a quick look at the nature
and the subject matter of copyright as currently defined.
A copyright is a set of exclusive rights in literary, musical, choreographic,
dramatic, and artistic works. The rights under copyright pertain to
the reproduction, adaptation, public distribution, and public display
or performance of the work. For copyright to be available, the work
of authorship in question must be original and fixed in a tangible
medium. As to what the first of the two fundamental criteria of copyright
protection, originality, means, the Supreme Court recently explained
The sine qua non of copyright is originality. To qualify
for copyright protection, a work must be original to the author ...
Original, as the term is used in copyright, means only that the work
was independently created by the author (as opposed to copied from
other works), and that it possesses at least some minimal degree of
creativity ... To be sure, the requisite level of creativity is extremely
low; even a slight amount will suffice ... Originality does not signify
novelty; a work may be original even though it closely resembles other
works so long as the similarity is fortuitous, not the result of copying.(22)
The copyright owner's exclusive rights are limited in two important
ways. First of all, because a copyright protects only against copying
(or paraphrasing) the copyrighted work, a copyright does not prohibit
anothet author from independently producing the same or a similar
work. Second, neither ideas nor discrete facts from a copyrighted
work are protected; copyright protects only the particular expression
of ideas and facts. The latter limitation has been the subject of
much discussion, the distinction between an idea and its expression
not always being immediately apparent. As we shall see, this very
elusiveness of the idea/expression dichotomy gives rise to some interesting
points of contention during Oscar's plagiarism suit.
Crease v. Erebus Entertainment, Inc.
Discussing with Christina how Oscar will react if he loses the copyright
infringement suit he has brought against the producers of the Civil
War movie "The Blood in the Red White and Blue," Harry suggests
that Oscar has been "going on a frolic of his own." Christina
wants to know where on earth he has dug up that phrase. Going on a
frolic of one's own, Harry explains, is
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 an office worker puts out an
eye shooting paper clips with a rubberband...
"Isn't that really what the law is all about?" Christina
then asks Harry, "where it's all laws, and laws, and everything's
laws and [Oscar'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? " (23)
The next time somebody refers to this legal technicality, it is old
judge Crease in his instructions to the jury in the case of Fickert
v. Ude. The Reverend Elton Ude of Mississippi is accused of negligence
in the baptismal drowning of a small boy called Wayne Fickert in the
Pee Dee River. "In bringing a new soul into the fold through
the baptismal ceremony," writes Judge Crease, the Reverend Ude
was "engaged on his master's business... and not, in the words
of a later English jurist, `going on a frolic of his own."' The
Reverend Ude's master is, of course, God, and what Judge Crease is
suggesting in his instruction to the jury is that the drowning is
God's fault rather than the Reverend Ude's, especially since in this
particular case, "the instrument of imminent catastrophe is the
master's control, as must the crest and current of the Pee Dee River
The connection made throughout the novel between the artist and God
in relation to the legal phrase "a frolic of his own" is
an interesting one. In the Fickert case, God is literally "indicted
for negligence-is absent, elusive, unstable." (25)
Like a number of Gaddis's other fictional creations, Oscar is engaged
in a search for his father, human and divine. His real reason for
embarking on the plagiarism suit is to win his father's approval by
showing him that he has been capable of producing a valuable and important
play about the Crease family. As already mentioned, the old judge
does not show too much interest in his offspring; he is always too
busy thinking and writing about legal matters to get in touch with
Oscar. The ultimate irony of the novel is that when his father finally
exerts himself on Oscar's behalf by writing the appeal in his plagiarism
case, he merely does it for "love of the law," as his old
law clerk informs Oscar and Christina upon the judge's death.(26)
This is devastating news to Oscar, who thought that his father really
wanted to help him out.
Though most of his family came from the South, Oscar has lived all
his life as "a wealthy recluse" (or, as his somewhat silly
girlfriend Lily thinks the papers have called him, "a wealthy
excuse") on Long Islan .(27)
The silent pond beyond the window of his by now somewhat rundown mansion,
to which the characters turn their attention when everything gets
to be too much in and around the house, recalls Walden Pond, and scattered
throughout the book are passages from Walden itself as well as from
Longfellow's Song ofHiawatha. Oscar Crease, that is, is an American
historian and playwright with a New England background and frame of
mind. Traditionally, as Tony Tanner reminds us, in New England human
creativity was somewhat problematic. Creating something out of nothing
was perceived to be God's prerogative, and if a human being engaged
in creative activity he or she risked being accused of blasphemy.
Oscar does not seem to suffer from precisely this kind of guilt. Instead,
"his reverence is now directed to the creative acts of the Old
Masters." (28) Again,
Tony Tanner is speaking here about Wyatt from The Recognitions,
but his observation is just as relevant in regard to Oscar Crease.
In A Frolic of His Own, Gaddis is as much preoccupied with
the theme of the American artist as copyist as he was in his earlier
work. For Oscar as well as for his author, remembering is more important
than inventing-"notions of originality give way to copying,"
as Tanner puts it. The general feeling in The Recognitions
-- and, we may add, also in the later novel-Tanner goes on, seems
to be that in their quest for originality, contemporary artists merely
synthesize products to vaunt their own egos. Such art works obscure
reality. Great art forgets self altogether and contains a recognition
of reality. Copying such works to re-experience that recognition may
thus become an authentic, selfless mode of access to reality. Gaddis's
book keeps returning to the difference between the fictions or fabrications
which hinder, and those which facilitate, that recognition of reality
which, truly understood, is the most original act of which man is
American copyright law, as we saw above, specifically concerns itself
with notions of originality, novelty, ideas and their expressions
or, to put it in a different way, with the American artist as copyist.
By focusing the plot of A Frolic of His Own on a copyright
infringement suit, Gaddis has thus succeeded in creating a piece of
work that speaks both to his own key concerns as a writer and to the
key cultural concerns of this country.
It is when Oscar is recuperating in the hospital from the injuries
inflicted by his own car that he first reads about the production
-- and enormous success -- of "The Blood in the Red White and
Blue." He is greatly upset and exclaims to his brother-in-law,
"no, but [that man Kiester who made it] stole my idea, the same
story all of it, it's even the same battle it's not a, just a nuisance
it really happened, it was my own grandfather wasn't it?" Always
the lawyer, Harry immediately tries to warn Oscar about taking this
any further: "Oscar you can't just, you can't own the Civil War.
You can't copyright history, you can't copyright an idea. . . ."(30)
Oscar does not heed -Harry's advice, of course. He proceeds to hire
a lawyer, Harold Basie. Basie, who is black and later turns out to
be a complete fraud, encourages Oscar to go ahead with his plagiarism
suit. When the producers of the Civil War epic offer to settle for
$200,000, it is Basie who persuades Oscar to turn the offer down and
instead try his luck in court. Because of his injuries Oscar is unable
to attend the regular court meetings. Kiester's lawyers therefore
have to pay a visit to his Long Island home to take his deposition.
Enter the attorney for the defendants, Mr. Jawaharlal Madhar Pai,
Esq., of the firm of Swyne & Dour. Madhar Pai, we learn through
Harry, is "real red brick university product all English tailoring
really full of himself, Swyne & Dour's token ethnic they came
up with when they got a look at Mister Basie." Before long this
"token ethnic," who, as it soon turns out, is every bit
as clever and knowledgeable about cultural issues as Oscar, engages
his opponent in a fascinating discussion about art and culture. Pai
starts out by asking Oscar about the title of his play -- where it
comes from and what Oscar intended it to convey. The title "Once
at Antietam," Oscar answers, echoes a line in Shakespeare's Othello
and is intended to evoke the dramatic death scene in which Othello
stabs himself. Would this kind of sophisticated reference make sense
to a mass audience, Pai wants to know next.
A. To anyone who's read Shakespeare.
Q. Would you characterize that as a general audience? Or a rather
A. As a theater going audience.
Q. As a relatively narrow audience, then, a traditionally elite audience?
In other words you wouldn't have expected a mass audience to make
this Shakespeare connection?(31)
Having successfully exposed Oscar's highbrow leanings, Pai pursues
the topic of possible sources of inspiration for "Once at Antietam."
Certain passages of the play remind him of Eugene O'Neill's Civil
War trilogy "Mourning Becomes Electra," for example. Are
these similarities accidental, he asks. Appalled that Pai may think
he has taken his material and his characters from O'Neill's play,
Oscar hastens to say that this is most "certainly not" the
case. He would never dream of taking anything from "that sham
thing" of O'Neill's -- 'I mean you wouldn't see me writing `Does
it pain dreadfully? You poor darling, how you must have suffered!'"(32)
In addition to emphasizing the fact that Oscar prefers his play to
be associated in people's mind with Shakespeare rather than with O'Neill,
the O'Neill comparison allows Pai to drive home the point that similarities
may indeed occur without copying-a point of which he intends later
to remind Oscar in relation to the movie "The Blood in the Red
White and Blue."
When Pai next directs Oscar's attention to Book One of Plato's Republic
and to the striking similarities between this classic and his own
work, Oscar's reaction is entirely different. Plato, Oscar readily
acknowledges, is a chief source of inspiration for his play. He would
certainly expect people not only to recognize this, but also to recognize
the fact that his play is meant as a kind of homage to Plato, one
of the greatest Western thinkers of all times.
A. . . . I obviously expected people to recognize these passages,
these pieces of Socratic dialogue, any civilized person would recognize
them from the Republic. It's all simply, it was all simply meant as
a kind of homage, that's obvious isn't it?
Q. Please let me ask the questions. When you say any civilized person,
are we back to that somewhat narrow, rather exclusive audience envisioned
in connection with your play's title's slightly remote echo of Shakespeare?
A. I answered that didn't I? That he played to both the stalls and
Q. We are speaking now of Plato. Are you saying, then, that this very
broad audience, which you have characterized as the pits, would be
expected to recognize these random passages from his Republic?
A. It doesn't matter, no. No not the specific passages but it doesn't
matter, that's the ...
Q. Not the specific passages, then, but the approach, the Socratic
method as it's known. What Dale Carnegie called the `Yes yes' response?
Q. Dale Carnegie, the author of How to Win Friends and Influence
A. God! Yes, speaking of the pits but that's the point, it doesn't
matter. They don't have to know it's the Republic, they may never
have heard of Plato but they're carried away by it, by the dialogue,
by the wit and the timeliness of it, and the timelessness of it. That's
the greatness of Plato, finding a wider audience, that's the point.
That's what I mean by homage.(33)
It is this "timeless" quality of Plato's work, according
to Oscar, as well as the fact that "any civilized person"
would recognize the similarities between his own work and that of
Plato, which makes it acceptable for him to lift whole passages from
Plato. It is this timeless quality, moreover, that he aspires to in
his own writing. What he has attempted to capture in his play are
"the voices of men a hundred years ago swept by the tide of events
toward the end of innocence? to bring them to life caught up in the
toils of history, struggling vainly with the great riddles of human
existence, justice and slavery, war, destiny." When a work of
art succeeds in touching upon the great timeless themes of Western
civilization, idea and expression become one, and copying such a work
becomes a means of gaining access to an authentic recognition of reality.
The legal distinction between idea and expression no longer applies
except in cases where a timeless idea is copied in a vulgar and demeaning
way. This is for example the case, Oscar claims, with the blockbuster
movie "The Blood in the Red White and Blue," which is full
of sex scenes and gory special effects. What he seeks to have redressed
in this lawsuit, he explains to Pai, is "on the one hand ...
the theft of my play without giving me credit and on the other what
offends me is when my work is, when vulgarity and grossness and stupidity
debase my work."(34)
The difference between his copying from Plato and Kiester's copying
from him lies not in the act of copying itself, but in the end product.
Whereas his play has preserved the timeless quality and essence of
the Republic, "The Blood in the Red White and Blue" is a
piece of popular junk that caters to all the worst in human beings.
Or, as Tanner would have defended Oscar had he been his attorney,
whereas "Once at Antietam" facilitates, Kiester's movie
hinders "that recognition of reality which, truly understood,
is the most original act of which man is capable. "(31)
As intriguing as he may find his views on copyright, Pai subsequently
informs Oscar, he feels obliged to point out that they will not hold
up in a court of law. Copyright law makes a clear distinction between
an idea and its expression, and anybody involved in a copyright infringement
suit must do likewise. But Oscar is not only wrong in a legal sense,
Pai says; culturally speaking his theories about copyright and art
are erroneous too. His elitist preferences blind him to the real issues
in contemporary America. The so-called timeless problems of the so-called
civilized person with which Oscar deals in his play are luxury problems.
To the large majority of Oscar's fellow Americans, "the portrayal
of man the microcosm of his nation's history, of man against himself,
of self delusion and self betrayal" is by and large irrelevant.
What chiefly interests the average American are the poverty, the drug
problems, the ethnic fights going on in the streets of multicultural
America, and of these there is precious little in Oscar's play. The
important division is not that within a person, but that between ethnic
groups. When Oscar tries to defend himself by saying that his Civil
War play is really "not about these quarrels between black people
and Jews that burst out on the front page is it?" Pai, warming
to his subject, indignantly retorts:
"Drugs, gunfire, let them fight it out, turn off the news and
go in to dinner, not our fight is it? like your wounded pheasant burrowing
for refuge in the stone wall, trying to flee from what was happening?
the hollow essence of this Christian hypocrisy? ... John Israel and
Kane out there, both sides of your equation manipulating your hero's
profoundly hypocritical capacity for guilt, the black and the Jew
parading their real grievances they're not appealing to his conscience,
they're not even fighting each other to seize hold of his conscience
Oscar they're fighting for which one will fill this yawning sentimental
churchgoing flag waving vacant remnant of the founding fathers, which
one will finally be the conscience of this exhausted morally bankrupt
corpse of the white Protestant establishment and that! ... that's
the heart of it, the heart of the American dilemma." (36)
Pai does not stop here. Having dealt Oscar's already shaky self-esteem
a heavy blow by showing him how obsolete the concerns of his play
are and how his preoccupation with those elitist concerns prevents
him from noticing-and taking responsibility for-what is happening
around him, Pai proceeds to attack the very foundation on which Oscar
builds his notions of great and timeless art. "I don't really
trust your Plato," he tells Oscar.
" Look at his record on slavery, subjugation of women and the
welcome mat out on Queer Street you get the feeling in this Cratylus
that it's all really just a game he's playing, cardboard characters
and their arguments so full of holes the whole thing ends in confusion
and the flaws in his method show right through, your plea in your
deposition back there as homage? as timely and timeless? In the end
he's pretty much a dictator isn't he, a censor, can't trust him .
Oscar is shocked and genuinely confused by these devastating attacks
on everything he has always believed in. He never really recovers.
Toward the end of the novel, he regresses back into childhood. In
the last glimpse we get of him, he bursts out from behind a door and
starts tickling Christina until she can hardly breathe -- an act oddly
enough presaged by Christina herself at the beginning of the novel.
She and Oscar, she tells her husband, used to talk about one of us
buying the other one out when we grew up, but if something happened
to him and the whole place would come to me he'd get violent because
it had belonged to his mother when Father married her and he'd say
he'd come back and haunt me, he'd jump out from behind doors to show
me what he'd do, grabbing me and tickling me till I screamed, till
I couldn't breathe. (38)
Oscar's, or rather his author's, "revenge" is to "feminize"
Madhar Pai in ways that recall Kenneth Karst's theories about current
counterrevolutionary attempts to uphold an ideology of masculinity.
Pai is portrayed not only as an effeminate product of the British
private school system, who throws in an "old sport" or "old
fellow" at regular intervals, but also as an opportunistic intruder,
who only has an affair with socialite Trish in order to gain access
to the America of the rich and famous. "He's quick all right,"
Harry says to Christina after Pai has helped Trish defraud a devoted
family servant by breaking Trish's mother's will, "sometimes
he's a little too quick ... one of these men who has to show that
he's smarter than you are even when nothing's at stake ... He'd rather
win than be right. "(39)
Politically correct or not, it is not to Madhar Pai or "Mudpye,"
as Harry and Christina nickname him, that our sympathy flows. In the
end, all his obvious flaws and snobbishness notwithstanding, Oscar
is the one whose plight mostly touches us.
Oscar's confrontation with Pai mainly concerns the concept of culture.
Throughout A Frolic of His Own, however, the discussion of
high culture versus low culture is closely paralleled by a no less
interesting and significant discussion about justice versus law. In
both his lawsuits, Oscar wants more than just victory from the law.
He wants vindication, or justice -- "that's why I'm suing and
it's not just the money, loss of earning capacity, career in jeopardy
no, it's the principle of the thing," as he informs us from the
very beginning.(40) For Pai,
on the other hand, the issue of justice-or rather, the dream of justice
-- is just as obsolete and ridiculous as the issue of timeless values
and great themes within Western civilization. Winning is what counts,
not being right-just as the fight in the street is more important
than old-fashioned WASP philosophical inquiries into the depth of
In being more interested in winning than in being right, Pai recalls
Anthony Kronman's lawyer-technician. He is precisely the sort of lawyer,
described by Kronman in The Lost Lawyer, for whom the law is
nothing more than a technical means to an end, and for whom the ideals
of the common-law lawyer-statesman -- practical wisdom, excellence
of judgment, and a devotion to the public good-have become obsolete,
even embarrassing.(41) It
is interesting to note in this connection, also, that Gaddis has Oscar
-- and later on also Harry -- reflect on the justice-versus-law issue
by comparing Oscar's grandfather (the hero of Oscar's play) to his
colleague on the Court, Justice Oliver Wendell Holmes. Trying to explain
to Harold Basie "what it was between them," Oscar notes
at some point that
for Holmes everything was the law and when somebody held forth about
justice like my grandfather did Holmes argued that he was refusing
to think in terms of the evidence, to think in legal terms that's
what it was all about between them right to the end, these clashes
and passionate opinions he was as obsessed with justice as Holmes
was with the law." (42)
Later on, during a conversation between Harry and Christina about
old Judge Crease's opinion in the Tatamount case, the contrast between
Justice Thomas_ Crease and Justice Holmes is again brought up.
"A story you hear in first year law school, same argument Oscar's
grandfather got into with Holmes ... Justice Learned Hand exhorting
Holmes `Do justice, sir, do justice!' and Holmes stops their carriage.
`That is not my job,' he says. `It's my job to apply the law.'"
Applying the law is precisely what Pai and most of his fellow lawyers
and judges do in today's legal system. Justice Holmes and his followers
have prevailed. (44) This
does not prevent Oscar and his fellow Americans from dreaming about
justice, however. And though they are foolish to expect to be rescued
by the legal system they have made or inherited, Gaddis implies, "they
are not fools to believe that something like justice could exist and
perhaps has existed." (45)
Oscar Crease, the protagonist of William Gaddis's A Frolic ofHis
Own, sees himself as "the gentleman poet, the last civilized
man." The themes that he deals with in his play "Once at
Antietam" are the great themes of Western civilization. The play
is based on the experiences during the Civil War of Oscar's grandfather,
Thomas Crease, who hired substitutes to take his place in the army.
For various reasons, one substitute ended up serving on the Confederate
side whereas the other joined the Union army, and as fate would have
it they met at the bloody battle of Antietam. As he grew older, Thomas
Crease became "increasingly haunted by the conviction that the
two had killed each other and that he was thus in some fanciful way
a walking suicide." (46}
When Oscar brings suit against the producer Constantine Kiester and
his film company for having created with the Civil War epic "The
Blood in the Red White and Blue" a vulgar travesty of his own
play, he is ostensibly doing so out of a wish to vindicate his family.
What he is really after, though, claims his stepsister Christina,
is recognition and attention. Christina is right in more than one
way. Oscar wants to be taken seriously by his father, who has never
had any time for him. But he also wants the world at large to recognize
that the great themes of Western civilization around which his play
revolves are still valid -- even in today's multicultural America
where the various subcultures are claiming that all talk of absolute,
timeless values merely serves to undermine them. In this endeavor,
Oscar ultimately fails. He wins his suit only to discover that all
he gets out of it is one-fifth of the movie's net profits. He gets
his father enlisted in his cause only to find out that his father's
interest stems from love of the law rather than love of his son. He
learns upon his father's death that he had been lied to by his father
about what really happened to his grandfather during the Civil War
-- what he believed to be historical facts are not facts at all. And
on top of it all he has to suffer the embarrassment of being told
by Kiester's attorney, a "token ethnic" at the prestigious
law firm of Swyne & Dour, that the philosophical concerns of his
play not only are old-fashioned and irrelevant to a contemporary American
audience, but also make a convenient excuse for not dealing with the
real problems. Utterly confused and disillusioned, Oscar tells his
brother-in-law Harry that "it doesn't really matter does it,
just a lot of, it's all those ideas I had that got in the way it's
all sort of stiff and old fashioned, characters making speeches and
those ideas that just got in the way that's what happened, it doesn't
If Oscar's play is full of "characters making speeches,"
so is A Frolic of His Own itself. The novel is crowded with
voices and dialogue. There is a constant need for words as if putting
words on certain key problems will help keep those problems at bay.
The one theme that preoccupies everyone is the law. That is no wonder
-- one way or the other, every character in the novel is involved
in at least one lawsuit. Oscar himself is involved in two. In addition
to the copyright infringement suit concerning his play, around which
most of the plot revolves, there is the personal injury suit that
derives from his getting run over by his own car while trying to jump-start
it. This latter suit becomes more and more complex-chiefly due to
the fact that Oscar is basically suing himselfand Oscar never really
seems to know what is going on. "You're suing the hit and run
driver who ran over you aren't you?" asks Christina at some point.
"No," Oscar answers, "I'm suing his, I mean my, I'm
suing the insurance company for the owner of the car who are suing
the, I think they're suing the dealer, the original dealer who's suing
the car's maker it's all in the letter I got . . ." (48)
It may be exaggerated to call Oscar a walking legal suicide, but his
legal predicament clearly echoes the moral problem of divided selves
that haunted his grandfather. "To put it in plain language you
might almost say that this is a suit between who you are and who you
think you are, the question being which one is the plaintiff and which
one is the defendant," as one of his lawyers explains the situation.
(49) In the latter part of
the nineteenth century, it was "the great riddles of human existence"
with which human beings struggled. A hundred years later, it is the
law. The legal arena is where the action is in late-twentieth-century
America, Gaddis indicates. He is right. In contemporary law-permeated
America, every major problem-be it of a political, moral, or social
nature-eventually turns into a legal one.
"Questions that do have answers," Harry says to Oscar at
one point, "that's what the whole of law's all about."
(50) In the world of words created by Gaddis,
the legal vernacular serves to make things concrete and thereby manageable.
When problems are framed as legal problems, the law does have the
answer. But there is more to it than that. The longing for lost values
and cultural unity that is so pronounced throughout A Frolic of
His Own is similar to the visions of an earlier social and cultural
order evoked by what Kenneth Karst has called the cultural counterrevolution.
As the cultural counterrevolutionaries see it, law is the most powerful
form of expressing and defining meanings in public life. They have
consequently waged their war for cultural copyright in the legal arena.
For the right side of the American political spectrum no less than
for the left, that is, the social issues agenda has been an agenda
that is heavily focused on law and its promise. (51)
1. William Gaddis, telephone
interview with Laurel Graeber, The New York Times Book Review,
Jan. 9,1994, 22, Gaddis died in December 1998.
3. William Gaddis, A Frolic
of His Own (New York: Simon & Schuster, 1994),13.
4. In his review of A Frolic
of His Own ("Jarndyce U S.A.," Times Literary Supplement,
no. 4757, June 3, 1994), Zachary Leader mentions that like Oscar,
Gaddis himself wrote an unpublished play in the 1950s entitled "Once
at Antietam." This may indicate that Gaddis saw himself in Oscar-at
least to a certain extent. There is not much to like about Oscar.
He is so pretentious and so pathetic that the reader cannot help wondering
whether he constitutes an exercise of autobiographical self-criticism
on Gaddis's part. "Projections of this type," writes David
Cowart, "constitute the examined life of the artist, at once
an exorcism of unworthy versions of the self and a rhetorically effective
shielding of the vulnerable ego, whose pretensions might otherwise
be dismissed by captious readers" ("Heritage and Deracination
in Walker's 'Everyday Use,'" Studies in Short Fiction
33: 3 [Summer 1996], graciously supplied to me by David Cowart).
5. The ten-million-dollar lawsuit
brought in October 1997 against Steven Spielberg's company, Dream
Works SKG, by Barbara Chase-Riboud, the author of the 1989 novel Echo
of Lions, claiming that Spielberg has ripped off her book for
his film "Amistad," makes one wonder whether Chase-Riboud
has read A Frolic of His Own!
6. Robert Weisberg, "Taking
Law Seriously," Yale Journal of Law and the Humanities
7.2 (1995): 446.
7. Tony Tanner, City of Words:
A Study of American Fiction in the Mid-Twentieth Century (London:
Jonathan Cape, I97I), 395-96.
8. Jonathan Raban, "At
Home in Babel," New York Review of Books, Feb. 17, 1994,
9. Gaddis, A Frolic of His
Own, 29, 33.
10. Ibid., 251.
11. Weisberg, "Taking
Law Seriously," 452.
12. Leader, "Jarndyce
13. Gaddis, A Frolic of
His Own, 251.
14. Weisberg, "Taking
Law Seriously," 452.
15. Tanner, City of Words,
16. Kenneth L. Karst, Law's
Promise, Law's Expression: Visions of Power in the Politics of Race,
Gender, and Religion (New Haven, Conn.: Yale University Press,
17. Ibid., x, 8.
18. Ibid., 43, 33-34, 59.
19. Ibid., 7.
20. The following pages are
based upon Robert A. Gorman and Jane C. Ginsburg, Copyright for
the Nineties, 4th ed. (Charlottesville, Va.: The Michie Company,
1993), 183. The Shaler, Holmes, and Harlan quotes may be found on
29, 37, and 37, respectively.
21. Sandra Day O'Connor, quoted
in Gorman and Ginsburg, Copyright for the Nineties, 30.
22. Feist Publications, Inc.
v. Rural Telephone Service, 499 U.S. 340 (1991), as quoted in Gorman
and Ginsburg, Copyright for the Nineties, 86.
23. Gaddis, A Frolic of
His Own, 348, 349. Here, it would seem, Gaddis, qua artist, somehow
sees himself in his pathetic protagonist.
24. Ibid., 376.
25. Leader, "Jarndyce
26. Gaddis, A Frolic of
His Own, 487.
27. Ibid., 266, 267.
28. Tanner, City of Words,
30. Gaddis, A Frolic ofHis
31. Ibid., 171.
32. Ibid., 18q.
33. Ibid., 195-96.
34. Ibid., 300, 207.
35. See note 29.
36. Gaddis, A Frolic of
His Own, 50, 325-26.
37. Ibid., 330.
38. Ibid., 15.
39. Ibid., 339.
40. Ibid., 85.
41. Please see chap. 3 for
a discussion of Anthony Kronman's theories.
42. Gaddis, A Frolic ofHis
43. Ibid., 251.
44. It is interesting to note
in this connection that what Duncan Kennedy calls the "critical
strategy," or "the left/mpm (modern/ postmodern) project,"
started with Oliver Wendell Holmes: "My view is that there is
an actual, dramatic historical moment when this critical strategy
was first formulated. It occurred in 1894, when Oliver Wendell Holmes
published his article, "Privilege, Malice, and Intent."
In discussing recent English and American labor and common law anti-trust
cases, he wrote this sentence: `The ground of decision really comes
down to a proposition of policy of rather a delicate nature concerning
the merit of the particular benefit to themselves intended by the
defendant, and suggests a doubt whether judges with different economic
sympathies might not decide such a case differently when brought face
to face with the issue.' The rest is history" (Duncan Kennedy,
A Critique of Adjudication (fin de siecle [Cambridge, Mass.:
Harvard University Press, 19971, 85). See chap. 9 for a longer discussion
of Duncan Kennedy and his legal theories.
45. Weisberg, "Taking
Law Seriously," 452.
46. Gaddis, A Frolic of
His Own, 348, 350.
47. Ibid., 110, 427.
48. Ibid., 385
49. Ibid., 474.
50. Ibid., 398.
51. The special investigation
into President Bill Clinton's credibility -- personal as well as professional
-- led by Independent Council Kenneth Starr, which led to the second
impeachment trial in the history of the United States, is one recent
example of a rightwing attempt to use the law for a particular political