"The less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly." So wrote Judge Learned Hand in his landmark decision in Nichols v. Universal Pictures Corp. (1930), ruling that the author of Abie's Irish Rose could not make the charge of plagiarism stick against the producers of The Cohens and the Kellys. A mere "idea" (the scare quotes are Judge Hand's) may be borrowed by anyone, along with stock figures, characters "so faintly indicated as to be no more than stage properties" and "low comedy of the most conventional sort."
This simple principle has figured nowhere in the press coverage of Kaavya Viswanathan's novel How Opal Mehta Got Kissed, Got Wild, and Got a Life and its similarities to a pair of now canonical texts, Megan McCafferty's Sloppy Firsts and Second Helpings. Within the space of one week, by my count, the New York Times alone devoted seven news articles to this matter--one of them on the front page--plus a wire-service pick-up, brief discussions in two feature pieces and four letters to the editor. The brevity of life prevents me from reading deeply in this controversy (or "controversy," as Judge Hand would perhaps have written); but I can tell you that at the Times, only the letter-writers bothered to remark the obvious. This is a story about clichés and stereotypes passing from one subliterary commercial product to another.
So what makes the Opal Mehta case such a thirsty blotter for news ink? The word "Harvard" may have something to do with it. I suppose Ms. Viswanathan would not have gotten so much attention as a student at Tufts--or, for that matter, if she were named Carla Nathan. Wild speculation on my part, of course; but maybe newspaper readers take special interest in the affairs of celebrity universities, and in the overreachings of the dark-skinned and ambitious. Maybe--an even wilder speculation--newspaper editors don't mind encouraging such interest.
But then, it isn't as if Ms. Viswanathan had tried to get away with copying The Recognitions. The real scandal, to my mind, is that trade book publishers in the aggregate now commit themselves almost wholeheartedly to the Second Helpings and their equivalent, and that American newspapers don't mind encouraging them. Witness the Times's own bestseller list in hardcover fiction. Out of fifteen titles, you've got The Da Vinci Code (not plagiarized from Holy Blood, Holy Grail!), three other "contributions to the da Vinci industry" (as Publishers Weekly delicately calls them), seven units of suspense by brand-name writers and a couple of happily-ever-after tales by women's authors too venerable for the chick-lit label. The nonfiction list is admittedly more substantive. James Frey has been purged.
So great is the will to evade these tawdry facts that even when the press exposes them--as the Times did, to its credit, in an article on the role of book-packaging firms--the story must end with avowals all around of the blamelessness of publishing companies. The full weight of culpability must fall instead on the author, who has failed to provide sufficient originality for an industry that wants none. By serving as the latest unwilling, moralized distraction from this round of same-old, Ms. Viswanathan has not damaged today's trade publishers but actually done them a service. That, too, ought to be obvious--but I doubt it will be a subject for finger-wagging, until someone's caught plagiarizing a balance sheet.