Bookend / September 26, 1999

Lolita and the Lawyers

      Is it good or bad for literature that Lo's Diary will finally see the light of day? A reimagining of Vladimir Nabokov's Lolita from Lolita's point of view, the novel, by Pia Pera, comes out next month after narrowly avoiding an expensive and divisive lawsuit. Lo's Diary was originally published in Italy in 1995, but it was not until Farrar, Straus & Giroux announced plans for an English-language translation last year that Dmitri Nabokov, the author's son, sued. He claimed copyright infringement, maintaining that Pera's novel borrowed unacceptably from Lolita, that fewer people would buy Nabokov's masterpiece as a result, and thus that the new novel would "inflict immeasurable losses" on one of the "towering literary works of this century." Farrar, Straus backed down, and there the matter stood until Barney Rosset, head of Foxrock Inc., stepped in. As the attorney representing Foxrock, I argued that Pera's work was transformative in nature, and thus encouraged under the law. In the end, we worked out an agreement that allowed Pera to publish her novel in the United States and Britain, with a preface by Dmitri Nabokov and half the author's share of royalties to be donated to PEN. Both sides wanted more, but each got enough.

What of the issues raised, however? Because the case never went to court, some troublesome questions of free speech and property rights remain unresolved. This was a unique case, and could potentially have ended up before the Supreme Court, setting a precedent in the increasingly contentious arena of copyright law. Lo's Diary simply doesn't fall into any traditional category that the law, or literature, is used to dealing with: it's not parody or criticism, which don't require permission; it's not a prequel or a sequel, which do. About half the novel tells much the same story as Nabokov's work, with the same characters. But when the story opens, Lolita is married and living in Paris, and the 85-year-old "Humbert Guibert" is retired on the Riviera with a young wife ("the mulatto daughter of his cook"), where he plays tennis and correspondence chess. Most significant, in "Lo's Diary," it is not Humbert but Lolita who is the seducer; the novel is a first-person narrative giving her side of the story.

Literature is full of such borrowings; the extent of the "taking" varies. In "Agamemnon," Aeschylus took characters and incidents (but not the whole story) from Homer, who took the incidents from history. The legend of Pygmalion became a play by George Bernard Shaw, which became the show "My Fair Lady." If Homer's estate sued Aeschylus, or if Pygmalion's author sued Shaw, I would hope the ancient courts would allow the works. To take a modern example, Michael Cunningham's novel "The Hours" -- this year's Pulitzer Prize winner for fiction and a work of unquestioned originality -- pays homage to Virginia Woolf's "Mrs. Dalloway" and clearly refers to characters and incidents from that novel.

Yet the analogy that is perhaps most compelling is a musical one. Lo's Diary is really a variation on a theme, defined by Baker's Biographical Dictionary of Musicians as "one of a series of transformations . . . by means of harmonic, rhythmic and melodic changes and embellishments." Music is replete with examples: Mozart's variations on Salieri, Gluck and dozens of others; Beethoven on Diabelli, Paganini on Haydn, John Corigliano on Beethoven. In contemporary music, the practice of using words and melodies from original songs has been upheld by the Supreme Court, as in the 1994 case of 2 Live Crew's hip-hop parody of the Roy Orbison song "Oh, Pretty Woman."

The question of influence and attribution has also frequently been dealt with in the art world. Forgery is not allowable; nearly any other interpretation is. To mention only a handful of New York painters, James Rosenquist borrows a section of Picasso's "Guernica" and incorporates it into his very large canvas "The Swimmer and the Economist"; Roy Lichtenstein's paintings feature his renderings of Matisse, Picasso and Leger along with the comic strip artists he admired, and Milton Glaser has done his own interpretations of Piero della Francesca's work.

Yet in 1992 a Federal appeals court in New York dealt the art world an unusual setback, ruling that one of Jeff Koons's ceramic sculptures was a rip-off (the legal term is copyright infringement). Koons had based the sculpture, painted in his garishly colored style, on a greeting card photograph by Art Rogers of a smiling American husband-and-wife team holding eight puppies. All the courts saw as evidence were two pictures: one, the black-and-white photograph on the card, and two, a photograph of the sculpture exactly the same size.

The appeals court, in describing the Rogers photograph, saw what it wanted to see: "a typical American scene -- a smiling husband and wife holding a litter of charming puppies." But what Koons saw was totally different. He saw sentimentality, inanity and kitsch. When he blew up the image to larger than life size, stuck daisies in the hair of the sickly sweet smiling couple (the flowers were not in the photograph) and painted the finished ceramic, the sculpture acquired a horrific quality quite distinct from the original.

Should the courts make judgments on the basis of the quality of the art or the legitimacy of the artist, as I think they did in the Koons case (though they would deny it)? It's a dangerous business. The decision might well have gone the other way if the artist had been someone other than Koons, who graduated from hawking securities on Wall Street to peddling sculptures depicting himself and his wife, a former porn star turned member of the Italian Parliament, engaged in explicit sex acts. In the case of Pia Pera, who has a doctorate in Russian and has written extensively on Russian literature and translated Pushkin, Herzen and Lermontov, should her background make a legal difference? What if her novel gets bad reviews? In my opinion, none of these matters are relevant.

The courts decide issues of creative license only because someone must. Yet many judges with whom I am acquainted know very little about new forms of art, music and literature -- and still less about where creativity comes from. Most have traditional rather than experimental tastes; they generally do not go to the Venice Biennale, film festivals in Amsterdam or to theater in Chelsea or the Lower East Side.

Yet in an era of corporate consolidation and the growth of commerce on the Internet, the conflict between ownership and free speech will no doubt increasingly bedevil the courts. Media giants often believe their interest is more on the side of protecting copyright than granting permission for unrestrained creativity, for these are substantial financial assets we are talking about. In a world of media clutter, the use of symbols, images and icons -- the phenomenon of "brand-naming" -- means instant recognition. Issues of who owns what image will become increasingly fraught. To take just one example, we all agree that duplicating a copyrighted picture is not a creative act, and the copyright holder can object to the sale of the copy. But what if a photograph is digitized and slightly altered in the process? Does that mean the digitized photo, created with a totally different technology, is a new creative work? In the Koons case, the court found it significant that Jeff Koons contracted out the actual making of the ceramic -- his hands never touched the work -- and that the Rogers photograph was not "iconic." Andy Warhol, on the other hand, colored his Marilyn Monroe series himself; the original image was taken from the newspaper. Does that make his work more original than Koons's?

The Lo's Diary dispute is a tiny part of a much larger debate. How do you balance free speech against property rights? How do you encourage the artist to feel free to be fully creative? Marsilio, Pia Pera's Italian publisher, and Dmitri Nabokov settled because the law is unclear. Neither side could safely predict it would win, and the costs could be extraordinary. But the law needs further clarity for authors, publishers, readers and the First Amendment.

My views are very much informed by two conversations I had, a decade and two continents apart -- first with Andrei Sakharov, the scientist and dissident, in Moscow, and the second with James D. Watson, one of the discoverers of DNA (and the author of the acclaimed "Double Helix"), in Cold Spring Harbor, N.Y. They both talked about the pre-eminence of American creativity in science and technology, and they both tied it to the First Amendment; in this country, you can think anything, you can imagine anything, and you can say everything. There are not many limits to our creativity, in any field, and we are less rule-bound and freer to create our own world than any other nation. This is not only the atmosphere we choose; it's the cornerstone of our democracy.

It is not without irony that the 45-year-old Lolita was one of the most banned novels of its time when Nabokov's publisher in the United States argued, on First Amendment grounds, that the book should be published. The settlement over Lo's Diary is a good outcome. Dmitri Nabokov won because he feels he helped protect his father's reputation and memory. Pia Pera won the right to have her book, previously stopped in England, France and the United States, finally available here. And, most important, readers win because they can read Lo's Diary and decide the issue for themselves.


Martin Garbus, a lawyer with the firm of Frankfurt, Garbus, Klein & Selz, is the author of a memoir, "Tough Talk."

copyright 1999 Martin Garbus