DARREN HUDSON HICK

Ontology and the Challenge of Literary Appropriation

i. introduction

On May 31, 2008, author Simon Morris typed the following passage:
I first met Neal not long after my father died. . . . I had just gotten over a serious illness that I wont bother to talk about except that it really had something to do with my fathers death and my awful feeling that everything was dead.

Perhaps these words look familiar. Perhaps they should. They were typed fifty-seven years earlier by Jack Kerouac as the opening lines of his manuscript for On the Road. Morris retyped this passage for his blog, Getting Inside Jack Kerouacs Head.1 Each day, Morris would laboriously retype one page from his Original Scroll edition of Kerouacs On the Road, carefully proofread it, and upload it onto his website.2 On March 24, 2009, Morris retyped the final page, and a year later published the collected blog entries together in his book, Getting Inside Jack Kerouacs Head (hereafter GIJKH).3 Following an introduction by Kenneth Goldsmith, the blog entries are reprinted in reverse chronological order, with the most recent entry first, and the earliest lastmuch as one might read the entries on the original blog. Each entry takes up one entire page of the book, and, unlike the original blog entries, each page in the print GIJKH also reproduces the page number for the corresponding text in On the Road: The Original Scroll. So, following Goldsmiths introduction, the book starts on page 408, and runs down to page 109 (being the first page of Kerouacs manuscript in the edition Morris was retyping from).

Aside from the reverse ordering of pages, there are a few minor differences between the texts. For example, Morris does not always underline words as Kerouac does (though Morris does not always fail to underline, either). And on page 317 of GIJKH, what should be a right-handed quotation mark (given how it is printed in the source) is printed as a left-handed mark, reproducing Morriss apparent typo on his blog. These sorts of minor issues and the reverse ordering of pages aside, GIJKH is a faithful retyping of the manuscript for Kerouacs On the Road as it appears in the published text. Appropriation of art by other artists is nothing particularly new. In 1981, Sherrie Levine famously rephotographed photographs by Walker Evans for her series, After Walker Evans, and before her, Elaine Sturtevant reprinted prints by Andy Warhol, sometimes using the original screens. Small-scale appropriationof plots, of phrasing, and so onis rampant in the history of literature. What is new about Morriss project, however, is that not only is he appropriating literature, but he is doing so wholly and completely. Morris did not simply take and repackage the plot or discrete passages of On the Road. Rather, Morris retyped Kerouacs novel in its entirety, without annotation or illustration. Art theorist and historian John C. Welchman declared the sort of straightforward appropriation exemplified in Levines work dead as of 1989.4 Morris clearly considers such a report premature. Morris is what is called a conceptual writer, a term coined by poet Craig Dworkin. Goldsmith, himself a conceptual writer, suggests:
Conceptual writing obstinately makes no claim on originality. On the contrary, it employs intentionally self and

The Journal of Aesthetics and Art Criticism 71:2 Spring 2013 C 2013 The American Society for Aesthetics

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ego effacing tactics using uncreativity, unoriginality, illegibility, appropriation, plagiarism, fraud, theft, and falsification as its precepts.5

The Journal of Aesthetics and Art Criticism raise issues regarding the complexity of authenticity conditionswhat makes something a genuine instance of some work. Literature, however, is traditionally understood to be fairly straightforward, such that a reasonably faithful copy of a literary work just is an instance of that work.

In general, conceptual writers explore methods of copying, reproducing, and reframing to investigate the nature of creativity and originality; one learns a great deal about a thing by seeking to avoid it. As a part of this undertaking, conceptual writers have become interested in the objects and processes of literature. Note, for instance, that GIJKH is not simply a retyping of On the Road; it is a retyping of Kerouacs manuscriptthe words that Kerouac typed, as Kerouac typed them, without editingspecifically as it was printed in the Penguin 2007 edition of On the Road: The Original Scroll, exactly matching the pagination of the edition, and even approximating the typeface. The cover design of GIJKH, meanwhile, mimics the design of another edition of Kerouacs novel the 2000 Penguin Modern Classics Edition. Morris is appropriating the literary object in multiple senses. Given all of this, it seems reasonable to ask, if I wanted to read On the Road, could I not just read GIJKH? Assuming that the Original Scroll edition qualifies as an authentic version of Kerouacs On the Road, is not my copy of GIJKH just a copy of Kerouacs novel?6 The difficulty with the case hangs on the central long-standing problem in the ontology of art: what makes two things instances of the same work? And GIJKH brings to light a number of loopholes and deficiencies in the longstanding answers. Some may point to previous cases of appropriation artto Sturtevants reprinting of prints and to Levines rephotographsas setting a precedent for Morriss project, and in a sense they do. But the matter is a little more difficult than saying, It works for Levine, so why not for Morris? Ontologically speaking, a painting of a painting does not pose any particular difficulties. Traditionally understood, a painting is by its nature a singular art object, and so a copy of ithowever perfect will be a different art object. If it is a work at all, it will be a different work. And this seems equally true for the products of both forgers and appropriation artists. Sturtevants reprints and Levines rephotographs cause something of a difficulty as photographs and prints are normally understood to allow for multiple genuine instances, each as authentic as the other. And so Sturtevant and Levine

ii. ontology and copies

The view of textualists such as Nelson Goodman is that a literary work is identical with some particular series of linguistic or textual characters in some particular order. As Goodman puts it, Any accurate copy of the text of a poem or novel is as much the original work as any other.7 On Goodmans view, a faithful retyping of On the Road just is an instance of the novel, as authentic and genuine as Kerouacs original manuscript. Indeed, textualists admit, it would not matter if the retyping was intentionally undertaken, a complete coincidence, or the product of a computer malfunctionthe end result is the same. As Goodman and Catherine Elgin contend, Questions of the intention or intelligence of the producer of a particular inscription are irrelevant to the identity of the work.8 Indeed, on this view, On the Road is not Kerouacs novel in any stronger a sense than that Kerouac happens to have been the first to have written it down. And while a manuscript that, by sheer coincidence, aligns word-for-word with some preexisting work just is that work, on Goodmans view, a copy with a single typoeven a single, misplaced commawould not be an instance of the work. Even putting aside the reverse ordering of pages, that single misdirected quotation mark on page 317 of GIJKH would disqualify it as an instance of the work. Since hardly a book exists without a typo, many have found the implications of Goodmans view too big to bite. Nicholas Wolterstorff argues that artworks are norm-kinds, such that in creating a work, an artist selects certain criteria for correctness as being normatively associated with that work.9 On this view, an artwork can have correctly formed instances and incorrectly formed ones. A correct instance will be one that adheres strictly to the criteria for correctness associated with that worksay, having those words in that orderwhile an incorrect instance will be an instance that comes fairly close to exemplifying the criteria without fulfilling them completely. Provided it is recognizable, a copy of a

Hick Ontology and the Challenge of Literary Appropriation novel with some typos would still be an instance of the work, just a flawed one. In our case, whether GIJKH qualifies as an instance of On the Road would depend upon whether the reverse ordering of pages and minor differences are enough to make it unrecognizable as an instance. As such, Wolterstorffs view is able to accommodate texts with typos, and so is able to overcome one of the major difficulties with the textualist position. However, like Goodmans, Wolterstoffs view implies that where two literary works are textually indistinguishable, they just are the same work. That textual indistinguishability implies work identity has not sat well with many philosophers of art. The central problematic outcome is that if A and B are both instances of the same work, then anything that is true of one is true of the other, including matters of interpretation and assessment. However, where A and B were written under very different conditions, it seems quite difficult to say that everything true of one is necessarily true of the other, even if they are textually indistinguishable. To illustrate this contention, a number of philosophers have pointed to Borgess Pierre Menard, Author of the Quixote. Menard, so the story goes, sets out to rewrite Cervantess masterpiece, Don Quixotenot to copy it, but to rewrite it, word for word, without reference to the original. Menard endeavors to write the novel from his own experience and his own point of view. And, through some unexplained mechanism, Menard manages to do just thisat least to the sum of two chapters and a fragment of anotherall without copying Cervantes. The result, the narrator tells us, is a work subtler, more ambiguous, and infinitely richer than Cervantess original. The twentiethcentury Menards writing is archaic, we are told, where the seventeenth-century Cervantes writes in the ordinary Spanish of his time. Menard alludes to things Cervantes could not possibly have alluded to, and writes with the benefit of two centuries of history that Cervantes could not possibly have known. On the basis of this and similar thought experiments, contextualists contend that what is true of a literary work depends upon something more than its textual features.10 Perhaps the two most developed views in the ontology of art following what has been called the contextualist turn are those outlined by Jerrold Levinson, in What a Musical Work Is, and Gregory Currie, in An Ontology of Art.11 Levinson centrally discusses the ontology of musical

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works, but I think we can reasonably infer a parallel view regarding literary ontology.12 On Levinsons view, a literary work would be an indicated typea certain linguistic or textual structure discovered, selected, or otherwise indicated by its author in some particular context. Distinguished from an implicit or pure type (the word structure alone), an indicated type is brought into existence by an intentional human actthe act of artistic creationand this, Levinson argues, is critical to understanding and evaluating a work. To see that Menards Quixote is archaic, subtle, and ambiguous, for instance, would require looking not only to the text, but also to who wrote it, and under what conditions. As such, Levinson is able to distinguish between a pure structure and the work, properly speaking. On this view, work-types are distinguished according to the structure indicated and the context of creation, and so where we have a different structure, or a different context in which that structure is indicated, we have a different work. Put simply, two authors producing indistinguishable texts under different conditions invariably produce different works, however similar. On Curries view, what we centrally appreciate when we evaluate artistic achievement is not the final product, but the process that led to it. As such, Currie suggests, we should think of an artwork as an action typea particular structure arrived at via a certain heuristic path. A heuristic path includes all of those factors that contribute to the artists picking out of that structure. These will include, for instance, those preexisting works that influence the artist, the artists choice of genre, the constraints that come with that genre, and the artists choices in solving the artistic problems that arise in the creative process. On this theory, artworks are distinguished according to two identifying elements, a structure and a heuristic, and so where two items differ in either their structures or the heuristic paths leading to those structures, they will be distinct works (if works at all). Where they have precisely the same structures and heuristic paths, they will be precisely the same work. Turning to GIJKH, it is critical first to note that Morris is not Pierre Menard. Menard set out to write Don Quixoteor something indistinguishable from itfrom his own perspective. Morris was not seeking to rewrite Kerouacs novel, but rather to retype it. Morris sought to copy Kerouacs writingto type the words exactly as Kerouac had written them because Kerouac had

158 written them that way. Morriss project was essentially to better understand Kerouac by doing something that Kerouac had done. This, apparently, is why he chose the Scroll edition rather than the more familiar version of the novel: the Scroll is the preedited novel, purportedly exactly in the order that Kerouac wrote it. Allowing that Menard creates a new work when he rewrites Don Quixote, does this tell us anything about Morris? Is Morris like Menard, or is Morris more like the typesetter for the original novel? Presumably, Levinson does not want the context in which a typesetter selects the type for an edition of a novel to constitute a new context of creation, and Currie does not want the same typesetters challenges and choices to constitute a heuristic in the relevant sense. Rather, I think, each would want to say that the typesetter is merely involved in an act of instantiation, and not an act of creation. Otherwise, it would seem, every act of instantiating a work would result in a new work, and no copy of On the Road would be an instance of Kerouacs novel. Strangely, however, this seems to be precisely the claim of conceptual writers. Dworkin contends that a work can never really be duplicated by formal facsimile.13 Morris says, [T]he same piece of writing, typed up in a different context, is an entirely new piece of writing.14 And Goldsmith states, [T]he simple act of retyping a text is enough to constitute a work of literature, thereby raising the craft of the copyist to the same level as the author.15 I suspect that mostif not allof us would find this goes much too far. But incredulity is not an argument. If, as the contextualist contends, ontology depends upon contexts of creation or heuristics, how would we exclude in a non-question-begging way the typesetters typesetting heuristic from the class of art-making heuristics and his context of typesetting from the relevant class of contextsof-creation? And what are we to do with Morris and the other conceptual writers? After all, the conditions under which Morris typed were very different from those under which Kerouac typed. Levinson suggests that whether or not some musical performance is a performance of some particular work, W, depends upon whether the performance conforms to the structure of W and exhibits the required connection to the indicative activity whereby the composer first created W, this required connection being primarily, if not wholly, intentional.16 Extrapolating for literary

The Journal of Aesthetics and Art Criticism cases, we might suggest that some item is an instance of some literary work if it conforms to the structure of that literary work and was intentionally fashioned so as to instantiate the original authors work. On this view, my copy of the Scroll edition of On the Road is an instance of that novel because it conforms to the structure indicated by Kerouac, and the typesetter intended the edition to instantiate the workand this all seems reasonable enough. Now, given its textual conformity to On the Road (putting aside the issue of the reverse ordering of pages, and allowing that the typos are not sufficient by themselves to disqualify it), it would seem the only sticky issue for GIJKH would be whether Morris intended to instantiate On the Road. Unfortunately, this is not a simple question. Certainly, Morris intentionally retyped On the Road, but it is unclear whether he thus intended to instantiate the work. Levinson could contend that this is enough: that Morris intended to copy On the Road, and that even if Morris did not have the formed intention that the resulting object should be an instance of On the Road, the fulfilled intention of copying would be sufficient for instantiation.17 But what if Morris had the specific intention that his act of retyping not result in an instance of On the Road? It seems that either one will have to accept that such an intention will disqualify the resulting object from being an instance of the work (which would seem strange), or one would have to contend that Morriss intention to not instantiate the novel has somehow been overridden by his instantiation of the novel (which would either seem to negate the necessity of intention or else require substantially more explanation). I also do not suspect that Currie wants it to be the case that the typesetter was creating a literary work distinct from Kerouacs, simply insofar as the typesetter was engaged in a typesetting heuristic. So how are we to distinguish those heuristics that result in new artworks from those that do not? Perhaps Currie could contend that the typesetter was not engaged in a project of discovery, and that discovery is essential to art making. At times, Currie discusses the artwork action type as the discovering of [structure] S via heuristic path H.18 As such, Currie might argue, where there is no discovery, there is no action type, and so no new artworkand just so for the typesetting of On the Road. Certainly Currie could say this, but this

Hick Ontology and the Challenge of Literary Appropriation does not seem to represent his considered view. Currie himself raises Marcel Duchamps Fountain as a motivating case for his theory: when we appreciate Fountain, it is largely with regard to Duchamps activity, and not his product.19 This certainly seems true. However, if we want to say that Duchamp discovered the structure for Fountain, it would seem he did not pluck it out of Platos ether, but rather discovered it in a plumbingfixture showroom. If this qualifies as discovery, why cannot a typesetter equally discover a linguistic structure in a manuscript he is handed by an editor? Late in his book, Currie contends that instantiation is in part a causal matter, such that an item, B, is a correct instance of some work, W, just in case it (i) is spelled like and (ii) is a copy (or a copy of a copy, etc.) of some incontestable instance of W, A (for example, the original manuscript). A parallel condition, Currie suggests, applies to the visual arts, except that is spelled like is replaced with looks like, and similarly for the other arts. The claim seems reasonable enough at first glance, and Currie contends that the same copy criterion applies generally across the arts. The problem is that no justification is provided for the criterion. Through several imagined cases, Currie provides substantive reason to suggest that congruence of spelling is not alone sufficient for instantiation, but why should the addition of the copy criterion fill this gap? Why cannot an activity of copying constitute a legitimate art-making heuristic? One wonders how Currie would handle the work of appropriation artists like Sturtevant and Levine. Levines After Walker Evans: 4 (1981, hereafter AWE4), for example, is a photograph of a print of a photograph by Evans: Alabama Tenant Farmer Wife (1936, hereafter ATFW). Levines photograph not only looks like, but is grainfor-grain indistinguishable from an unproblematic instance of Evanss photographspecifically, the plate in Evanss 1978 collection First and Last that Levine photographed. And there seems no question that AWE4 fulfills the copy criterion. On Curries view, then, it would seem that AWE4 just is an instance of ATFW. But is not this precisely the sort of case that we would hope Curries view could deal with? In a review of Levines rephotographs, Roberta Smith suggests that it is the clarity and passion of Evanss images that hold us more than Ms. Levines subversive gesture.20 But to properly appreciate Levines work, one might reason-

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ably say, is to appreciate it as a piece of appropriation art. Put another way, to appreciate the work is to appreciate Levines heuristic pathsomething distinct from Evanss heuristic path. But, it would seem that, on Curries view, the copy criterion trumps the issue of heuristic paths: if AWE4 is an instance of ATFW, then to appreciate it is to appreciate the heuristic that led to that structure, and this would be Evanss heuristic path, not Levines. If, however, Currie drops the copy criterion, we are left to ask how we are to distinguish in kind the heuristic path of someone like Levine (an artmaking heuristic) from the activity of the print lab employee who simply makes a print of Levines photograph for her (not, we want to presume, an art-making heuristic). And all of these same problems apply equally to GIJKHthe only difference being a matter of media, which Currie does not seem to think is a substantive issue. It may be asked, do we get better answers about the individuation of works and their instances if we take into account more aspects of the artists action and context in our identification of a work? Since Levinson and Currie each seek to fold in the whole of an artists action and context in a works individuation, and yet their views cannot answer our central question, it is unclear what further details might do the job. Ultimately, neither Levinson nor Currie gives us a clear answer about GIJKH. And so, it might be suggested, there is reason to give the textualists viewunburdened as it is by anything so obscure as contexts of creation and heuristic pathsanother look. However, as even Goodman notes, authenticity conditions arise as a result of cultural practice with regard to a given art form.21 And as practices shift, so too can what counts as an instance of a given work.
iii. ontology and artistic practice

Amie Thomasson persuasively argues that the background ontological conceptions of competent speakers are what ground the ontology of artworks. As with other ontological commitments, these background conceptions are embodied in our practiceshow we refer to, treat, distinguish, interpret, and evaluate works. Thomasson argues:
[T]he only way to find out the truth about the ontology of the work of art is by way of conceptual analysis that teases out from our practices and things we

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say the tacit underlying ontological conception of those who ground the reference of the term, perhaps making it more explicit, smoothing out any apparent inconsistencies, and showing its place in an overall ontological picture.22

The Journal of Aesthetics and Art Criticism seem a reasonable enough conclusion were it not for the immediate difficulties that the view runs into. Typically, my students scoff at the suggestion that Levines AWE4 is a distinct work from Evanss ATFW. When they argue that the two just are the same work, however, I suggest that their protests come too latethat artistic practice has determined otherwise. As I write this, AWE4 is on display at New Yorks prestigious Whitney Museum of American Art as a part of Levines retrospective show, Mayhem. Other pieces of Levines appropriation art are in the permanent collections of the Museum of Modern Art and the Guggenheim, and her works are the topic of regular discussion in journal articles and art history texts. Any university-level course in contemporary art would be remiss in omitting discussion of appropriation art in general and Levines work in particular. Levine is unquestionably one of the most influential artists of the last thirty years, and AWE4 is probably her most famous work. Levines works of appropriation are, in short, taken very seriously by artists and art experts. To rail against AWE4, it seems, is an exercise in futility. Although the focus of Dodds discussion is on musical works, there seems nothing about his reasoning that restricts its application to musical cases. On Dodds view, the background assumptions of the general public should win out, but at least in this case, they have not. Pace Dodd, the conceptions and practice of the ordinary public have simply been outweighed by those of artists and art experts. Although there are surely more members of the general public than there are artists and art experts, the opinions of artists and experts add cultural weight to AWE4. Because it is talked about, interpreted, evaluatedin short, taken seriouslyby artists and experts, it has been able to influence future works of art. And it is specifically Levines work that is influential and not Evanssand this only because artists and art experts conceive of it as a work distinct from ATFW. In this case, the ordinary publics incredulity has done nothing to forestall the works effects or its ontological distinction from Evanss photograph. Does AWE4 thus set a precedent that may be applied to GIJKH? Certainly, I think, the case shows that the minority view of artists and art experts can prevail over the majority view of the

Simply put, paintings are essentially singular things and poems allow for multiple genuine instances because this is how we treat them. And we treat paintings as essentially singular things and poems as multiple things because, at base, we conceive of them this way. If, however, a case presents itself for which there exist no practices that evidence any such conception one way or the other, then, according to Thomasson, the matter is simply indeterminate and we must decide what to do. Faced with an entirely new sort of case, we must as competent speakersdecide how we are going to move forward. However, as some have noted, the matter is more complicated than Thomassons suggestion would indicate. Thomasson argues that ontology is grounded in the background conceptions of competent speakersbut, we might ask, which competent speakers? And what do we do when ontological conceptions or artistic practices conflict? At a first pass, we have the concepts and practices of artists themselves, those of art experts, and those of the general publicand there is no reason to think that, faced with some challenging case, these three groups will all agree on how to move forward. In Works of Music, Julian Dodd suggests that when the practices of art experts clash with those of ordinary consumers of art, it is the practices and so, background assumptionsof the general public that win out.23 Dodd is speaking here specifically about music, and his conclusion that the artistic practices of the ordinary person trump those of the expert is grounded on his view that the ordinary appreciator of music is a moderate musical empiricistsomeone whose appreciation is based only on what can be heard in the work and some basic knowledge about the works proper musical category. The music expert, conversely, asks questions about the works place in the history of music, the composers influences, and other such contextual mattersessentially, those things that concern Levinson and Currie. The background assumptions of the ordinary person, Dodd says, belong to all of us, and so outweigh those of the expert minority. This would

Hick Ontology and the Challenge of Literary Appropriation general public if the minority conception can hold out long enough to influence future artists. And there seems little doubt that Morris is one of the artists directly influenced by Levines work. But one art form need not be ontologically like another, and what brings about a conceptual revolution in one arena need not do so in another. A number of philosophers have argued that it is only because of technological limitations that we continue to think of such art kinds as paintings in essentially singular terms: that all that is holding us back from treating paintings as multiply instantiable things is that we lack the technology to make truly indistinguishable copies of them.24 I would suggest that this notion is only half right. Such technological advances would either have to be accompanied by or else result in conceptual changes about such art forms, and these are by no means inevitable. That a technological change allows for new conceptualization is no guarantee that such a conceptual uptake will occur. However, the notion that conceptualand ontologicalrevolution may ultimately rest on technological evolution is a persuasive one. Joseph Margolis writes, [A]uthenticity is a distinction of an intentional and normative sort that is bound to reflect the shifting practices and technological possibilities of different societies.25 Technological advances allow for new practices, and new practices may embody new conceptualizations some of these with ontological implications. Dworkin writes, [R]ephotographing in 1980 and retyping in 2000 or exhibiting an appropriated image in a SoHo gallery and publishing an appropriated text as poetry cannot be equivalent activities.26 Where Levines rephotographs occurred on the tail end of a century-old debate about the nature of photography and its place in the arts, Dworkin notes, conceptual writing is being done against the backdrop of todays remix culture, in which technological advances have largely revised how we think about the creation and consumption of artworks, literature included. Widespread digitization has made copying incredibly easy, and the Internet provides a wealth of material to copy. Certainly, this has helped to fuel music and video sampling, but when anyone with Internet access can copy and paste just about anything with a couple of mouse clicks or keystrokes, it should not be surprising that manyespecially those who were raised on such technology should develop new ideas about the nature of art.
iv. plagiarism and copyright

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In 2006, Harvard sophomore Kaavya Viswanathans debut novelHow Opal Mehta Got Kissed, Got Wild, and Got a Lifewas pulled from bookstore shelves and all copies destroyed under allegations that the novel plagiarized several passages, primary characters, and plot developments from two novels by Megan McCafferty. Four years later, seventeen-year-old Helene Hegemann published her debut novel, Axolotl Roadkill, and was quickly criticized for lifting substantial material from the novel Strobo, written by German pseudonymic author Airen. Viswanathan maintained her innocence even as evidence piled up that she had taken not only from McCafferty, but also from Meg Cabots The Princess Diaries, Salman Rushdies Haroun and the Sea of Stories, and other sources. Hegemann admitted taking from Airens novel and apologized, but defended her literary approach, arguing, Theres no such thing as originality anyway, just authenticity.27 Justifiable or not, each of these seems on its face a straightforward case of plagiarism, understood as the unattributed appropriation of anothers ideas or expression. Viswanathans novel, presumably, was destroyed not because it plagiarized, however, but because it infringed copyright. Opal Mehta was published by Little, Brown and Company, and the copyright to McCaffertys novels is owned by Random House. Each of these is a major U.S. publisher, and as a rule, publishers prefer to avoid copyright litigation. Hegemanns novel was published by Ullstein-Verlag, one of Germanys largest publishers, and Airens Strobo was published in 2009 by Sukultur, a German independent publisher. As soon as evidence of appropriation came to light, Ullstein sought a settlement with Sukultur.28 Fueled by post-structuralist notions of authorship (or, rather, nonauthorship), many, like Hegemann, treat artworks literary and otherwiseas having no origin, as authorless.29 Unfortunately for them, the writers and publishers of many of the works from which they appropriate do not share this sentiment. Here, the clashing background conceptions are not simply those of such high-level categories as artists, art experts, and the general publicbut rather subsets of these. If, as Thomasson suggests, our background ontological conceptions are embedded in our artistic

162 practices, then certainly matters of plagiarism and copyright should be counted among these. Centrally, plagiarism is a moral matter and copyright a legal one, but so too are they artistic matters, both reflecting and influencing how we conceptualize art. Although, by putting his name on the book, Morris seems to assert that GIJKH is his own work, this is not straightforwardly a case of plagiarism: Morris conceals neither his source nor his method, and he is not claiming Kerouacs accomplishments as his own. Copyright infringement, conversely, does not centrally rest on matters of attribution. Contrary to popular belief, accurately citing ones sources in no way alleviates a charge of copyright infringement. Goldsmith, however, suggests that copyright plays a different role with GIJKH. Referring to Morriss original blog entries, Goldsmith notes:
Morris has only had a handful of commenters/ passengers, curiously, none of them have been Kerouacs estate or his business representatives calling foul play for freely republishing a very lucrative artwork. Morris work, then, is an anomalynot a pirated edition worth legally pursuingand as such, becoming functionless and aestheticized, it can only be a work of art.30

The Journal of Aesthetics and Art Criticism ist and so not newly copyrightable. Where every element of some item is copied from some preexisting work, there is nothing in the new item that is newly copyrightable. The item is an exact copy, and an exact copy lacks any originality. Legally, at least, such a copy would simply be an instance of the preexisting work: it would warrant no copyright of its own, and the copyright owner of the original work would possess the copyright to it.35 On our principle, two authors might independently and coincidentally string together the same words in the same order, and in such an eventuality each product would be recognized as an independently copyrightable work.36 Although textually indistinguishable, each has a unique origin. So, while Menards Quixote would be a unique work under this principle, there is nothing independently copyrightable about GIJKHit lacks originality. Of course, unoriginality is supposed to be the very point of conceptual writing. On this basis, it would seem an instance of GIJKH just is an instance of On the Road, legally speaking. However, perhaps especially in the law, things are not so clear-cut. Although GIJKH is certainly a prima facie case of copyright infringement, the copyright laws of a number of countries allow for exceptions to copyright under the heading of fair dealing, permitting copying for purposes of criticism, comment, and satire.37 The roughly equivalent doctrine in the United States is that of fair use, and recent attempts have been made to justify appropriation art under this doctrine.38 None of these, however, has been a case of straightforward appropriation resulting in textually or visually indistinguishable objects. Moreover, even where a use is deemed fair, such a finding is not standardly taken as recognition that the use thus represents a new and distinct work, legally speaking. Rather, this is taken to depend upon whether the work is sufficiently original. The one possibility for a finding of fair use resulting in independent copyrightability seems to be when that use is deemed fair because it is sufficiently transformative. Writing the Supreme Court decision in the 1994 case of Campbell v. Acuff-Rose, Justice Souter contends that determining whether or not some use is fair depends centrally upon whether the new work merely supersede[s] the objects of the original . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.39 In other

Goldsmiths claim here seems to be that, since Kerouacs estate did not pursue Morris for his blog entries, his work has become an artworkand, presumably, one distinct from Kerouacs.31 This is, on its face, an ontological claim. Indeed, the copyright page of GIJKH states, This work is licensed under the Creative Commons Attribution 2.5 Licence. You are free to share or remix this work but should always attribute the work in the manner specified by the author.32 Presumably, Morris is allowing that you can copy and modify his work (provided proper attribution), not that you can copy or modify Kerouacs work (I would not assume that even Morris presumes to claim control over the copyright of Kerouacs novel).33 How does Morriss position hold up under standard interpretations of the law? Whether or not a given item is copyrightable standardly depends, first, upon its originality.34 In the discourse of copyright, originality is not a matter of novelty nor is the term taken to imply any sort of aesthetic merit. Rather, originality in this sense is a matter of whether the item owes its origin to its author. Any element copied from a preexisting work is not original to the copy-

Hick Ontology and the Challenge of Literary Appropriation words, Souter suggests, the key question of fair use is whether and to what extent the new work is transformative.40 Matthew Sag notes, [W]hile unproductive or untransformative uses are not to be presumptively denied fair use protection, the heart of the doctrine is reserved for transformative uses.41 Exactly what constitutes sufficient transformationand whether this would justify independent copyright in a transformative usehowever, has yet to be established in the law.42 Literary theorist Marjorie Perloff suggests that context always transforms content.43 This, Perloff contends, is centrally a matter of use and function. In 2003, Slate author Hart Seely published Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld, a collection of poems whose language is lifted directly from public speeches and briefings by the former U.S. Secretary of Defense. Such works are standardly referred to as found poetrytextual materials transformed into poems through little more than framing them as such. Goldsmith writes, If all language can be transformed into poetry by merely reframingan exciting possibilitythen she who reframes words in the most charged and convincing way will be judged the best.44 An exciting possibility indeed, but this is a big if. Certainly, aestheticians should be familiar with the idea that reframing an object can transform that object and that transformation need not depend upon changes to an objects formal, perceptual, or textual properties, but can depend instead upon its use or function. Arthur Danto, George Dickie, Richard Lind, and many others have suggested that the difference between Duchamps Fountain and an indiscernible urinal (or, alternatively, Fountain and the urinal of which it is composed prior to its selection by Duchamp) lies in the formers being used as art, and the latters not.45 But, importantly, such arguments are traditionally employed to establish an ontological difference between an art object and an indiscernible nonart object. In the case of On the Road and GIJKH, we have, purportedly, two textually indistinguishable but nonidentical art objects, one a copy of the otherand both, seemingly, of the same art-kind. Has Morris transformed On the Road in the relevant sense? Is the context of retyping the work sufficient for transformationsufficient, that is, to establish GIJKH as a textually indistinguishable copy of, but nevertheless a work distinct from,

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On the Road? The only non-question-begging answer seems to be . . . maybe. It may be that the influence of todays remix culture will ultimately press reconsideration of the nature and moral foundations of copyright particularly the notion of originality upon which contemporary copyright restsforcing reevaluation of intellectual property law as a whole. A number of theorists have suggested such a move.46 In the case of AWE4, I suggested, it was ultimately the influence of the work that established its nonidentity with ATFW. And certainly, were international copyright law to be overhauledor, what is more likely, were GIJKH found to be legally fair on the basis that Morris had transformed Kerouacs work without any significant alteration to its textual propertiesthis could go a long way toward influencing the actions of future authors (and similarly if Morriss book were ultimately found to be infringing). Unfortunately for our case, fair use outcomes are notoriously difficult to predict largely owing to the nature of the legal doctrine itselfand generally have to be determined on a case-by-case basis.47 Moreover, the higher the court, the more such outcomes tend to turn not on factual evidence, but rather on the philosophical interpretation of the court. And so the outcomes of such casesincluding their ontological implicationsultimately come down to legal decisions. And this is, of course, essentially the very problem with which we started. Whether or not the case of GIJKH comes to a fore, however, and becomes an influential legal case depends upon the copyright owners of On the Road pressing the issue. Certainly, Morris acts as if GIJKH is his own work. And there are at least some critics and other experts who treat GIJKH as a work distinct from Kerouacs novel. It has garnered reviews in American Book Review, 3:AM Magazine, and The Constant Critic, for example.48 But this does not settle the matter. These reviews represent a small group of criticsthose specializing in avant-garde, fringe worksvery likely representing an extreme minority view. Whether they have sufficient cultural weight to establish GIJKH as its own work remains an open question. GIJKH stands as a potential watershed worka critical turning point in how we think about and treat art. It epitomizes the clash between views on the nature of art, creativity, and originality. And it makes apparent surprising holes in our established ontological models.

164 Because of its legal implications, its very existence may force us to resolve our concepts and close our ontological loopholes. Or, then again, it may go almost entirely overlooked. True watershed works, I suspect, are quite rare in the history of art. Duchamps Fountain is certainly one. Picassos Les Demoiselles dAvignon and John Cages 4 33 may be others. Each of these forced not only artists but ultimately the general public to rethink their notions of art. Each changed the nature and trajectory of art. Potential watershed works are those that stand at the outer boundary of our concepts of art and push further outward. This is where GIJKH stands. Whether it breaks through the boundary or bounces back depends first upon whether we notice that the boundary is itself being tested.49
DARREN HUDSON HICK

The Journal of Aesthetics and Art Criticism

11. Jerrold Levinson, What a Musical Work Is, Journal of Philosophy 77 (1980): 528; and Gregory Currie, An Ontology of Art (New York: St. Martins Press, 1989). 12. Indeed, Levinson relies on the literary Menard case to motivate his view on music. See Levinson, What a Musical Work Is, p. 10n13. Levinson makes the explicit case for literary works in Autographic and Allographic Art Revisited, Philosophical Studies 38 (1980): 367383. 13. Craig Dworkin, The Fate of Echo, in Against Expression: An Anthology of Conceptual Writing, ed. Kenneth Goldsmith and Craig Dworkin (Northwestern University Press, 2010), pp. xxiiiliv, at p. xxxviii. 14. Kenneth Goldsmith, Uncreative Writing (Columbia University Press, 2011), p. 156. 15. Goldsmith, Uncreative Writing, p. 12. 16. Levinson, What a Musical Work Is, p. 26. 17. This would seem to parallel Levinsons notion of art-unconscious intention in his Defining Art Historically, The British Journal of Aesthetics 19 (1979): 2133. 18. Currie, An Ontology of Art, p. 70. 19. Currie, An Ontology of Art, pp. 7677. 20. Roberta Smith, Flattery (Sincere?) Lightly Dusted with Irony, New York Times, November 10, 2011, http://www.nytimes.com/2011/11/11/arts/design/sherrielevine-mayhem-at-whitney-museum-review.html. 21. Goodman, Languages of Art, pp. 121122. 22. Amie Thomasson, The Ontology of Art and Knowledge in Aesthetics, The Journal of Aesthetics and Art Criticism 63 (2005): 221229, at p. 227. 23. Julian Dodd, Works of Music (Cornell University Press, 2007), p. 207. 24. See, for example, P. F. Strawson, Individuals (London: Routledge, 1959), p. 23; Michael Wreen, Goodman on Forgery, Philosophical Quarterly 33 (1983): 340 353, at p. 352; Currie, An Ontology of Art, pp. 121123. See also David Davies, Multiple Instances and Multiple Instances, The British Journal of Aesthetics 50 (2010): 411 426. 25. Joseph Margolis, Art, Forgery, and Authenticity, in The Forgers Art, ed. Denis Dutton (University of California Press, 1983), p. 165. 26. Dworkin, The Fate of Echo, p. xli. 27. Nicholas Kulish, Author, 17, Says Its Mixing, Not Plagiarism, New York Times, February 11, 2010, http:// www.nytimes.com/2010/02/12/world/europe/12germany. html. 28. Young Literary Star Hegemann Counters Plagiarism Claim, The Local, February 9, 2010, http://www .thelocal.de/society/2010020925143.html. 29. In particular, Roland Barthess The Death of the Author, in Image, Music, Text, trans. Stephen Heath (New York: Hill and Wang, 1977); and Michel Foucaults What Is V. Harari, in The Foucault Reader, an Author? trans. Josue ed. Paul Rainbow (New York: Pantheon Books, 1984). 30. Morris, Getting Inside Jack Kerouacs Head, p. xiii. 31. Notably, Kerouacs estate does not lose its ability to sue for copyright infringement for having overlooked Morriss blog. 32. Morris, Getting Inside Jack Kerouacs Head, p. iv. 33. It will not do to suggest that the copyright tag was placed in the book by the publisher and not the author. The publisher of GIJKH, information as material, was founded and is headed by Morris himself.

Department of Philosophy Susquehanna University Selinsgrove, Pennsylvania 17870

internet: darrenhick@hotmail.com

1. Getting Inside Jack Kerouacs Head, March 24, 2009, gettinginsidejackkerouacshead.blogspot.com. 2. Jack Kerouac, On the Road: The Original Scroll (London: Penguin, 2007). 3. Simon Morris, Getting Inside Jack Kerouacs Head (York: information as material, 2010). 4. John C. Welchman, Art after Appropriation: Essays on Art in the 1990s (London: G+B Arts International, 2001), p. 270. 5. Anne Guthrie, Conceptual Poetry/Conceptual Interview, http://poetrycenter.arizona.edu/enewsletter/ April2008/enews0408_concpoet_read.shtml. 6. Since the only way to make coherent sense of the story in GIJKH is to read it back-to-front, I do not see this as a defeater for the case. As a comparison case, Japanese comicsmangaare traditionally printed with the first page at the back of the book, and are read in what we Westerners would think of as back-to-front. When reprinted in the West, such comics are sometimes printed in the original published order, and sometimes reversed. In whatever order the pages are printed, I would suggest, one is reading an instance of the comic. If you think the page order of GIJKH is a defeater, then imagine the case without this issue. 7. Nelson Goodman, Languages of Art (Indianapolis: Hackett, 1976), p. 114. 8. Nelson Goodman and Catherine Elgin, Interpretation and Identity: Can the Work Survive the World? Critical Inquiry 12 (1986): 564575, at p. 573. 9. Nicholas Wolterstorff, Works and Worlds of Art (Oxford: Clarendon Press, 1980). 10. See, for example, Gregory Currie, Work and Text, Mind 100 (1991): 325340.

Hick Ontology and the Challenge of Literary Appropriation

34. Copyright law differs by country, but this is a standard element in the laws of many countries, including America and Britain. The laws of other nations refer to largely analogous conditions: the Italian Copyright Act to works of the talent of creative character, for instance, and the German Copyright Act to personal mental creations. 35. See Darren Hudson Hick, Toward an Ontology of Authored Works, The British Journal of Aesthetics 51 (2011): 185199. 36. This is explicit in U.S. law: The author is entitled to a copyright if he independently contrived a work completely identical with what went before; similarly, although he obtains a valid copyright, he has no right to prevent another from publishing a work identical with his, if not copied from his. Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d 99, 103 (2d Cir. 1951). The copyright law of other nations built on a similar principle of originality would presumably have similar results. 37. This includes countries in the Commonwealth of Nations. Most other European countries, for example, have no equivalently broad doctrine, but incorporate exemptions for critical and educational uses as well as private study. 38. See, for example, Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990), affd, 960 F.2d 301 (2d Cir.), cert. denied, 113 S. Ct. 365 (1992); Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011). 39. Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994). 40. Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994). 41. Matthew Sag, God in the Machine: A New Structural Analysis of Copyrights Fair Use Doctrine, Michigan

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Telecommunications and Technology Law Review 11 (2005): 381435, at p. 388. 42. See Darren Hudson Hick, Appropriation and Transformation, Fordham Intellectual Property, Media & Entertainment Law Journal, forthcoming. 43. Marjorie Perloff, Unoriginal Genius (University of Chicago Press, 2010), p. 48. 44. Goldsmith, Uncreative Writing, p. 10. 45. Arthur C. Danto, The Transfiguration of the Commonplace (Harvard University Press, 1981); George Dickie, The New Institutional Theory of Art, in Aesthetics: A Critical Anthology, 2nd ed., ed. George Dickie, Richard Sclafani, and Ronald Roblin (New York: St. Martins Press, 1989); and Richard Lind, The Aesthetic Essence of Art, The Journal of Aesthetics and Art Criticism 50 (1992): 117129. 46. See, for example, Martha Woodmansee and Peter Jaszi, eds., The Construction of Authorship (Duke University Press, 1994). 47. See Sag, God in the Machine, and Darren Hudson Hick, Mystery and Misdirection: Some Problems of Fair Use and Users Rights, Journal of the Copyright Society of the USA 56 (2009): 401420. 48. Doug Nufer, On the Road Again, American Book Review 32 (2011): 11. Colin Herd, Being Jack Kerouac, 3:AM Magazine, January 12, 2011, http://www. 3ammagazine.com/3am/being-jack-kerouac/. Vanessa Place, Getting Inside Jack Kerouacs Head, The Constant Critic, October 25, 2010, http://www.constantcritic.com/ vanessa_place/getting-inside-jack-kerouacs-head/. 49. My thanks to Karla Kelsey for pointing out to me the book that is the focus of this article and for our numerous discussions on the topics herein.