BIOGRAFIENDS AND THE LAW

Book Marks

Will J. D. Salinger's successful suit against Random House bowdlerize the biography boom?

JAMES ATLAS

For thirty-four years, J. D. Salinger has been hunkered down in his New Hampshire bunker, hiding out in a hilltop chalet surrounded by a high fence designed to put off even the most intrepid literary pilgrim. But suddenly late last year he came down from the mountain. Spurred on by the imminent appearance of a biography by Ian Hamilton, the reclusive novelist showed up in his lawyer's midtown offices: at last he was ready to talk. Not only was the book unauthorized, he declared in an affidavit, it was illegal. Hamilton had quoted and paraphrased letters that were Salinger's property, infringing his copyright. Salinger sued to enjoin publication, and in January the Second Circuit Court of Appeals, reversing a decision by Judge Pierre Leval of the U.S. District Court in Manhattan, upheld his claim. If you don't happen to possess one of the sixty bound galleys sent to reviewers before the law stepped in, you're out of luck.

It may look like a minor squabble, a paranoid going to any lengths to protect his privacy, but Salinger's action has managed to change the practice of literary biography. Executives at Random House, Hamilton's would-be publishers, have been huddled for months over the manuscript of Scott Donaldson's forthcoming biography of John Cheever, going over it line by line with in-house lawyers. "The Salinger case is going to have a more detrimental effect than anyone realizes," says Robert Loomis, the editor of the Cheever book. "It's a remedy for which there was no disease."

At issue is a murky area of copyright law, the concept of "fair use," which is intended to ensure the public's right to know while at the same time protecting writers from excessive quotation of their words. How much can you quote from someone else's work? Within reasonable limits, according to the law. It depends on the context, the intended use, and a lot of other factors. Just what the limits are—the precise number of words—has never been determined; and when you're dealing with unpublished letters, the whole thing is even less clear. The letters themselves— "the tangible physical property"—belong to the recipient, who is free to dispose of them as he wishes. But the contents of the letters, the actual words, belong to the author. Can he forbid quotation? And what about paraphrasing? How does the doctrine of fair use apply? That's what the courts try to decide.

In the case of the Salinger biography, Judge Leval's original ruling, later reversed by the higher court, was that Hamilton's text did not violate the law, that it did not appropriate "the author's original image, choice of words, and turn of phrase by direct quotation or by paraphrase." Leval noted that Salinger's letters were "predictably vibrant and full of originality of image." To paraphrase and, in some cases, quote from them was vital to the "free public dissemination of ideas and matters of historical fact."

"Vibrant" Salinger's letters are—or at least the glimpses of them we get from the version of the text that first provoked Salinger's objections (the "May galleys," as they were known to the court). In one memorable fulmination, Salinger, jealous over Oona O'Neill after she spurned him for Charlie Chaplin, envisaged the newlyweds at home, Chaplin "squatting grey and nude, atop his chiffonier, swinging his thyroid round his head by his bamboo cane, like a dead rat." Now, that's hard to paraphrase. But Hamilton gave it a try, deleting and "writing around" offending passages. In the "October galleys," Chaplin, "ancient and unclothed, is brandishing his walking stick—attached to the stick, and horribly resembling a lifeless rodent, is one of Chaplin's vital organs." Nothing doing. Salinger didn't put too fine a point on it in his affidavit to the court: "I refuse to believe that an author such as Hamilton, with a clever lawyer at his side, can rob me of [my] right by using the guts of what I wrote so many years ago, with a few cosmetic changes, to flesh out an otherwise lifeless and uninteresting biography."

Salinger's right about one thing. It is a lifeless and uninteresting biography, Compared with his robust Robert Lowell, Hamilton's Salinger is a thin book, cobbled together from materials readily available elsewhere. It trails off disconsolately in 1965 with the meek disclaimer that Salinger's self-exile "effectively forbid(s) biographical intrusion"—hardly the declaration of a muckraker. But Salinger's litigious bullying didn't help matters. As Judge Leval succinctly put it: "To the extent [the biographer] quotes (or closely paraphrases), he risks a finding of infringement and an injunction effectively destroying his biographical work. To the extent he departs from the words of the letters, he distorts, sacrificing both accuracy and vividness of description." Either way you lose.

Judicious quotation is the essence of biography. Letters, journals, manuscripts all conjoin to create the texture and resonance essential to a literary work. But the court of appeals, which reversed Leval, was unconcerned with such niceties. " What is protected is the manner of expression," argued the judges, "the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments." In every case, Hamilton's "paraphrasing tracks the original so closely as to constitute infringement." In other words, even indirect quotation is out.

Of course, famous literary figures have always been touchy about these things. Their suspicion of "biografiends," as Joyce called them, is legendary. The art of literary biography, Leon Edel has observed, is a skirmish between "the hunter and the hunted"—and the prey can be pretty elusive. Henry James burned thousands of letters in the garden of his Sussex home. Eliot wanted no biography of him written; Auden urged friends to destroy his letters. Salinger isn't the first guy to try ducking his biographer.

Consider the case of Sylvia Plath. Ever since her suicide in 1963, her husband, Ted Hughes, and his sister, Olwyn, Plath's literary executor, have been thwarting a biography. There have been memoirs, collections of essays and letters, the journals, but no biography (unless you count Edward Butscher's erratic Sylvia Plath: Method and Madness). Now Simon and Schuster has brought out Linda Wagner-Martin's Sylvia Plath—a bowdlerized biography if ever there was one.

Wagner-Martin's Plath is a brisk— too brisk—account of the familiar story: Plath's early childhood near Boston; the death of her father, a virtual suicide, from diabetes that he had willfully refused to treat; her obsessive quest for distinction at Smith and her stormy marriage to Hughes; and her suicide at the age of thirty, the culmination of a creative fever during which she produced the poems she'll be remembered for. "I am a genius of a writer; I have it in me," she declared to her mother only months before she sealed off the kitchen of her London flat and put her head in the oven while her two children slept upstairs. "I am writing the best poems of my life; they will make my name." And so they did.

It's a potentially moving story, and Wagner-Martin did her best with the available data, of which there's plenty. Plath was memorable even before she was famous, and many of those who knew her in college, at Cambridge, and in the difficult year when she vegetated in Devon while Hughes hung out in London have supplied vivid testimony about her character. But Wagner-Martin's Plath fails to live on the page; it's a book deadened by paraphrase. At Smith, "she took lovers." "From Sylvia's journal, it is clear that she and Dick [Norton, a boyfriend] had become as physically intimate as they could be." And so on. Even her work is paraphrased; "the haunting poem ' Pheasant, ' '' we're told, is about "Sylvia's fears that her husband is instrumental in death of some kind."

This obliqueness is hardly Wagner-Martin's fault. The book's death warrant is written in the preface. In the beginning, she explains, she proceeded with the encouragement of Olwyn Hughes, but after Hughes read an early draft of the manuscript, "her cooperation diminished substantially." Ted Hughes himself demanded the deletion of "more than 15,000 words." By the end, their objections were so vociferous that negotiations broke down altogether. "When I realized that this tactic would continue indefinitely," Wagner-Martin writes plaintively, "I had to end my attempt to gain permission to quote at length if I was ever to publish this book."

I'm not surprised. Even while she was alive, Plath and Hughes were busy obstructing biographers. After Ted dawdled over an interview with a woman from the BBC, Wagner-Martin reports, Plath burned his notes and drafts of new work. A few months later, she carried batches of his papers out to the yard and "fed an eager fire with the tom pages of manuscript and correspondence"—including a novel of her own "about her great love for Ted." Hughes retaliated in kind. After her death, he confesses in the preface to her journals, "two more notebooks survived for a while, maroonbacked ledgers like the '57-'59 volume, and continued the record from late '59 to within three days of her death. The last of these contained entries for several months, and I destroyed it because I did not want her children to have to read it (in those days I regarded forgetfulness as an essential part of survival). The other disappeared." Then there was the matter of Plath's novel, Double Exposure. "That manuscript," Hughes notes laconically in his introduction to Johnny Panic and the Bible of Dreams, "disappeared somewhere around 1970." With writers like these at large, who needs copyright laws?

Still, biographers are a stubborn constituency. Paul Alexander, who edited a collection of memoirs about Plath, is at work on a biography for Viking, supported by a $150,000 advance, and claims to have the cooperation of the estate. (We'll see.) But the Salinger case has made everyone nervous. Random House is out of pocket the $100,000 advance it paid Hamilton—not to mention legal fees. It has appealed the case to the Supreme Court, which may or may not hear it. Judge Leval, meanwhile, citing infringement of copyright, has granted a preliminary injunction against John Kohler's biography of Stravinsky, under contract to Macmillan. Direct quotation accounted for "approximately 3 percent" of the book, observed Leval in his decision. "Stravinsky's colorful epigrams animate the narrative. I think Kobler might agree that they are the liveliest and most entertaining part of the biography." (Does skillful quotation nullify a good biography? Often it makes for one.) No wonder editors spend their days "lawyering" biographies, and biographers wonder how they ever got into the business. "It's hard to write a biography today, and getting harder," says Alexander. "Each sentence I write, I'm looking over my shoulder."

The art of literary biography, Leon Edel has observed, is a skirmish between "the hunter and the hunted"— and the prey can be pretty elusive.