Fair Use and the Ecstasy of Influence

Posted February 23, 2015

Authors Alliance Co-Founder Molly Van Houweling

In honor of fair use week, we’re taking a look back The Ecstasy of Influence, by award-winning author Jonathan Lethem. (Read more about Lethem’s work in this recent review.)

Lethem, who serves on the Authors Alliance Advisory Board, does not mention fair use in his 2007 essay (which is also one of a collection in his book of the same name). Instead, The Ecstasy of Influence embodies fair use with both its text and technique.

The text is a reflection on the role of inspiration and appropriation in all acts of artistic creation. Its purpose (as Lethem later described in an essay entitled The Afterlife of Ecstasy), was to reveal “the eternal intertextuality of cultural participation—of reading, writing, making things from other things.” In so doing, Lethem implicitly defends fair use, which the U.S. Supreme Court has described in Campbell v. Acuff Rose as a “guarantee of breathing space within the confines of copyright” that often privileges the transformation of copyrighted works into new works that do not supersede the originals but rather add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

The Ecstasy of Influence demonstrates this type of transformation through its technique of respectful re-mix. The 8000-word essay reads as a coherent expression of a singular authorial voice. But Lethem reveals at the end why the subtitle is “A Plagiarism.” He presents a key, in which he “names the source of every line I stole, warped, and cobbled together as I ‘wrote’ (except, alas, those sources I forgot along the way)” and clarifies that “[n]early every sentence I culled I also revised, at least slightly — for necessities of space, in order to produce a more consistent tone, or simply because I felt like it.”

Lethem explains, for example, that the book The Gift (by fellow Authors Alliance Advisory Board member Lewis Hyde) is the source of this powerful passage:

“Most artists are brought to their vocation when their own nascent gifts are awakened by the work of a master. That is to say, most artists are converted to art by art itself. Finding one’s voice isn’t just an emptying and purifying oneself of the words of others but an adopting and embracing of filiations, communities, and discourses. Inspiration could be called inhaling the memory of an act never experienced. Invention, it must be humbly admitted, does not consist in creating out of void but out of chaos. Any artist knows these truths, no matter how deeply he or she submerges that knowing.”

Later in the essay, Lethem weaves together Roland Barthes, Ralph Waldo Emerson, and more in a paragraph that urges us to forgive—as fair use often does—the ways in which creators twist together old and new:

“Any text is woven entirely with citations, references, echoes, cultural languages, which cut across it through and through in a vast stereophony. . . . Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. By necessity, by proclivity, and by delight, we all quote. Neurological study has lately shown that memory, imagination, and consciousness itself is stitched, quilted, pastiched. If we cut-and-paste ourselves, might we not forgive it of our artworks?”

The Ecstasy of Influence is thus both a celebration and a demonstration of fair use. It praises creative transformation through a remarkable act of creative transformation. That is not to say that Lethem’s technique can’t be critiqued—perhaps for bad manners instead of copyright infringement. Lawrence Lessig (also an Authors Alliance Advisory Board member) wrote a letter to Harper’s praising Lethem’s essay for teaching “more about the importance of what I call ‘remix’ than any other work I have read” but reminding us that creativity that celebrates influence need not use the plagiarist’s technique of copying without attribution. Lethem does of course offer attribution in his key, but Lessig suggests that “it is not too much to demand that a beautiful (or ugly) borrowed sentence be wrapped in simple quotation marks.”

As an academic author obsessed with documenting the primary and secondary sources that form the basis for my scholarly conclusions, I am all for quotation marks. But I confess that I was drawn in by Lethem’s alternative technique—uniquely suited to the purposes of his essay—of seamless synthesis followed by post-hoc acknowledgement. I suspect an essay riddled with quotation marks would have seemed esoteric instead of ecstatic.

Judge for yourself. Read (or re-read) the Ecstasy of Influence in honor of fair use week. And read more about fair use in the Authors Alliance Fair Use FAQ, and in these Fair Use Week resources.