ontology and literary appropriation

DARREN HUDSON HICK

Ontology and the Challenge of Literary Appropriation

i. introduction

On May 31, 2008, author Simon Morris typed thefollowing passage:

I first met Neal not long after my father died. . . . I hadjust gotten over a serious illness that I won’t bother totalk about except that it really had something to do withmy father’s death and my awful feeling that everythingwas dead.

Perhaps these words look familiar. Perhapsthey should. They were typed fifty-seven yearsearlier by Jack Kerouac as the opening lines of hismanuscript for On the Road. Morris retyped thispassage for his blog, “Getting Inside Jack Ker-ouac’s Head.”1 Each day, Morris would labori-ously retype one page from his “Original Scroll”edition of Kerouac’s On the Road, carefully proof-read it, and upload it onto his website.2 On March24, 2009, Morris retyped the final page, and a yearlater published the collected blog entries togetherin his book, Getting Inside Jack Kerouac’s Head(hereafter GIJKH).3 Following an introduction byKenneth Goldsmith, the blog entries are reprintedin reverse chronological order, with the most re-cent entry first, and the earliest last—much asone 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 inthe print GIJKH also reproduces the page num-ber for the corresponding text in On the Road:The Original Scroll. So, following Goldsmith’s in-troduction, the book “starts” on page 408, andruns down to page 109 (being the first page ofKerouac’s manuscript in the edition Morris wasretyping from).

Aside from the reverse ordering of pages, thereare a few minor differences between the texts. Forexample, Morris does not always underline wordsas Kerouac does (though Morris does not alwaysfail to underline, either). And on page 317 ofGIJKH, what should be a right-handed quotationmark (given how it is printed in the source) isprinted as a left-handed mark, reproducing Mor-ris’s apparent typo on his blog. These sorts of mi-nor issues and the reverse ordering of pages aside,GIJKH is a faithful retyping of the manuscript forKerouac’s On the Road as it appears in the pub-lished text.

Appropriation of art by other artists is nothingparticularly new. In 1981, Sherrie Levine famouslyrephotographed photographs by Walker Evansfor her series, “After Walker Evans,” and beforeher, Elaine Sturtevant reprinted prints by AndyWarhol, sometimes using the original screens.Small-scale appropriation—of plots, of phrasing,and so on—is rampant in the history of literature.What is new about Morris’s project, however, isthat not only is he appropriating literature, buthe is doing so wholly and completely. Morris didnot simply take and repackage the plot or discretepassages of On the Road. Rather, Morris retypedKerouac’s novel in its entirety, without annotationor illustration. Art theorist and historian John C.Welchman declared the sort of straightforward ap-propriation exemplified in Levine’s work dead asof 1989.4 Morris clearly considers such a reportpremature.

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 origi-nality. On the contrary, it employs intentionally self and

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

156 The Journal of Aesthetics and Art Criticism

ego effacing tactics using uncreativity, unoriginality, il-legibility, appropriation, plagiarism, fraud, theft, and fal-sification as its precepts.5

In general, conceptual writers explore methodsof copying, reproducing, and reframing to inves-tigate the nature of creativity and originality; onelearns a great deal about a thing by seeking toavoid it. As a part of this undertaking, concep-tual writers have become interested in the objectsand processes of literature. Note, for instance, thatGIJKH is not simply a retyping of On the Road; itis a retyping of Kerouac’s manuscript—the wordsthat Kerouac typed, as Kerouac typed them, with-out editing—specifically as it was printed in thePenguin 2007 edition of On the Road: The Origi-nal Scroll, exactly matching the pagination of theedition, and even approximating the typeface. Thecover design of GIJKH, meanwhile, mimics thedesign of another edition of Kerouac’s novel—the 2000 Penguin Modern Classics Edition. Mor-ris is appropriating the literary object in multiplesenses.

Given all of this, it seems reasonable to ask, if Iwanted to read On the Road, could I not just readGIJKH? Assuming that the Original Scroll editionqualifies as an authentic version of Kerouac’s Onthe Road, is not my copy of GIJKH just a copyof Kerouac’s novel?6 The difficulty with the casehangs on the central long-standing problem in theontology of art: what makes two things instancesof the same work? And GIJKH brings to light anumber of loopholes and deficiencies in the long-standing answers.

Some may point to previous cases of appropri-ation art—to Sturtevant’s reprinting of prints andto Levine’s rephotographs—as setting a precedentfor Morris’s project, and in a sense they do. Butthe matter is a little more difficult than saying, “Itworks for Levine, so why not for Morris?” Onto-logically speaking, a painting of a painting doesnot pose any particular difficulties. Traditionallyunderstood, a painting is by its nature a singularart object, and so a copy of it—however perfect—will be a different art object. If it is a work at all,it will be a different work. And this seems equallytrue for the products of both forgers and appro-priation artists. Sturtevant’s reprints and Levine’srephotographs cause something of a difficulty asphotographs and prints are normally understoodto allow for multiple genuine instances, each as au-thentic as the other. And so Sturtevant and Levine

raise issues regarding the complexity of authentic-ity conditions—what makes something a genuineinstance of some work. Literature, however, is tra-ditionally understood to be fairly straightforward,such that a reasonably faithful copy of a literarywork just is an instance of that work.

ii. ontology and copies

The view of textualists such as Nelson Goodman isthat a literary work is identical with some particu-lar series of linguistic or textual characters in someparticular order. As Goodman puts it, “Any accu-rate copy of the text of a poem or novel is as muchthe original work as any other.”7 On Goodman’sview, a faithful retyping of On the Road just is aninstance of the novel, as authentic and genuine asKerouac’s original manuscript. Indeed, textualistsadmit, it would not matter if the retyping was in-tentionally undertaken, a complete coincidence,or the product of a computer malfunction—theend result is the same. As Goodman and Cather-ine Elgin contend, “Questions of the intentionor intelligence of the producer of a particularinscription are irrelevant to the identity of thework.”8 Indeed, on this view, On the Road is notKerouac’s novel in any stronger a sense than thatKerouac happens to have been the first to havewritten it down. And while a manuscript that,by sheer coincidence, aligns word-for-word withsome preexisting work just is that work, on Good-man’s view, a copy with a single typo—even a sin-gle, misplaced comma—would not be an instanceof the work. Even putting aside the reverse or-dering of pages, that single misdirected quotationmark on page 317 of GIJKH would disqualify it asan instance of the work. Since hardly a book existswithout a typo, many have found the implicationsof Goodman’s view too big to bite.

Nicholas Wolterstorff argues that artworks arenorm-kinds, such that in creating a work, an artistselects certain criteria for correctness as being nor-matively associated with that work.9 On this view,an artwork can have correctly formed instancesand incorrectly formed ones. A correct instancewill be one that adheres strictly to the criteria forcorrectness associated with that work—say, hav-ing those words in that order—while an incorrectinstance will be an instance that comes fairly closeto exemplifying the criteria without fulfilling themcompletely. Provided it is recognizable, a copy of a

Hick Ontology and the Challenge of Literary Appropriation 157

novel with some typos would still be an instance ofthe work, just a flawed one. In our case, whetherGIJKH qualifies as an instance of On the Roadwould depend upon whether the reverse order-ing of pages and minor differences are enough tomake it unrecognizable as an instance. As such,Wolterstorff’s view is able to accommodate textswith typos, and so is able to overcome one ofthe major difficulties with the textualist position.However, like Goodman’s, Wolterstoff’s view im-plies that where two literary works are textuallyindistinguishable, they just are the same work.

That textual indistinguishability implies workidentity has not sat well with many philosophersof art. The central problematic outcome is that ifA and B are both instances of the same work, thenanything that is true of one is true of the other, in-cluding matters of interpretation and assessment.However, where A and B were written under verydifferent conditions, it seems quite difficult to saythat everything true of one is necessarily trueof the other, even if they are textually indistin-guishable. To illustrate this contention, a numberof philosophers have pointed to Borges’s “PierreMenard, Author of the Quixote.” Menard, so thestory goes, sets out to rewrite Cervantes’s master-piece, Don Quixote—not to copy it, but to rewriteit, word for word, without reference to the origi-nal. Menard endeavors to write the novel from hisown experience and his own point of view. And,through some unexplained mechanism, Menardmanages to do just this—at least to the sum of twochapters and a fragment of another—all withoutcopying Cervantes. The result, the narrator tells us,is a work subtler, more ambiguous, and infinitelyricher than Cervantes’s original. The twentieth-century Menard’s writing is archaic, we are told,where the seventeenth-century Cervantes writesin the ordinary Spanish of his time. Menard al-ludes to things Cervantes could not possibly havealluded to, and writes with the benefit of two cen-turies of history that Cervantes could not possi-bly have known. On the basis of this and similarthought experiments, contextualists contend thatwhat is true of a literary work depends upon some-thing more than its textual features.10

Perhaps the two most developed views in theontology of art following what has been called“the contextualist turn” are those outlined by Jer-rold Levinson, in “What a Musical Work Is,” andGregory Currie, in An Ontology of Art.11 Levin-son centrally discusses the ontology of musical

works, but I think we can reasonably infer a par-allel view regarding literary ontology.12 On Levin-son’s view, a literary work would be an indicatedtype—a certain linguistic or textual structure dis-covered, selected, or otherwise indicated by itsauthor in some particular context. Distinguishedfrom an implicit or pure type (the word structurealone), an indicated type is brought into existenceby an intentional human act—the act of artisticcreation—and this, Levinson argues, is critical tounderstanding and evaluating a work. To see thatMenard’s Quixote is archaic, subtle, and ambigu-ous, for instance, would require looking not onlyto the text, but also to who wrote it, and underwhat conditions. As such, Levinson is able to dis-tinguish between a pure structure and the work,properly speaking. On this view, work-types aredistinguished according to the structure indicatedand the context of creation, and so where wehave a different structure, or a different contextin which that structure is indicated, we have a dif-ferent work. Put simply, two authors producing in-distinguishable texts under different conditions in-variably produce different works, however similar.

On Currie’s view, what we centrally appreci-ate when we evaluate artistic achievement is notthe final product, but the process that led to it.As such, Currie suggests, we should think of anartwork as an action type—a particular structurearrived at via a certain heuristic path. A heuristicpath includes all of those factors that contribute tothe artist’s picking out of that structure. These willinclude, for instance, those preexisting works thatinfluence the artist, the artist’s choice of genre,the constraints that come with that genre, and theartist’s choices in solving the artistic problems thatarise in the creative process. On this theory, art-works are distinguished according to two identi-fying elements, a structure and a heuristic, and sowhere two items differ in either their structures orthe heuristic paths leading to those structures, theywill be distinct works (if works at all). Where theyhave precisely the same structures and heuristicpaths, they will be precisely the same work.

Turning to GIJKH, it is critical first to notethat Morris is not Pierre Menard. Menard setout to write Don Quixote—or something indis-tinguishable from it—from his own perspective.Morris was not seeking to rewrite Kerouac’s novel,but rather to retype it. Morris sought to copyKerouac’s writing—to type the words exactly asKerouac had written them because Kerouac had


written them that way. Morris’s project was es-sentially to better understand Kerouac by doingsomething that Kerouac had done. This, appar-ently, is why he chose the Scroll edition ratherthan the more familiar version of the novel: theScroll is the preedited novel, purportedly exactlyin the order that Kerouac wrote it. Allowing thatMenard creates a new work when he rewrites DonQuixote, does this tell us anything about Morris?Is Morris like Menard, or is Morris more like thetypesetter for the original novel?

Presumably, Levinson does not want the con-text in which a typesetter selects the type foran edition of a novel to constitute a new con-text of creation, and Currie does not want thesame typesetter’s challenges and choices to con-stitute a heuristic in the relevant sense. Rather, Ithink, each would want to say that the typesetter ismerely involved in an act of instantiation, and notan act of creation. Otherwise, it would seem, everyact of instantiating a work would result in a newwork, and no copy of On the Road would be aninstance of Kerouac’s novel. Strangely, however,this seems to be precisely the claim of concep-tual writers. Dworkin contends that “a work cannever really be duplicated by formal facsimile.”13

Morris says, “[T]he same piece of writing, typedup in a different context, is an entirely new pieceof writing.”14 And Goldsmith states, “[T]he sim-ple act of retyping a text is enough to constitute awork of literature, thereby raising the craft of thecopyist to the same level as the author.”15 I sus-pect that most—if not all—of us would find thisgoes much too far. But incredulity is not an argu-ment. If, as the contextualist contends, ontologydepends upon contexts of creation or heuristics,how would we exclude in a non-question-beggingway the typesetter’s typesetting heuristic from theclass of art-making heuristics and his context oftypesetting from the relevant class of contexts-of-creation? And what are we to do with Morrisand the other conceptual writers? After all, theconditions under which Morris typed were verydifferent from those under which Kerouac typed.

Levinson suggests that whether or not somemusical performance is a performance of someparticular work, W, depends upon whether theperformance conforms to the structure of W andexhibits the required connection to the indicativeactivity whereby the composer first created W,this required connection being “primarily, if notwholly, intentional.”16 Extrapolating for literary

cases, we might suggest that some item is an in-stance of some literary work if it conforms to thestructure of that literary work and was intention-ally fashioned so as to instantiate the original au-thor’s work. On this view, my copy of the Scrolledition of On the Road is an instance of that novelbecause it conforms to the structure indicated byKerouac, and the typesetter intended the editionto instantiate the work—and this all seems rea-sonable enough.

Now, given its textual conformity to On theRoad (putting aside the issue of the reverse or-dering of pages, and allowing that the typos arenot sufficient by themselves to disqualify it), itwould seem the only sticky issue for GIJKH wouldbe whether Morris intended to instantiate On theRoad. Unfortunately, this is not a simple ques-tion. Certainly, Morris intentionally retyped Onthe Road, but it is unclear whether he thus in-tended to instantiate the work. Levinson couldcontend that this is enough: that Morris intendedto copy On the Road, and that even if Morris didnot have the formed intention that the resultingobject should be an instance of On the Road, thefulfilled intention of copying would be sufficientfor instantiation.17 But what if Morris had the spe-cific intention that his act of retyping not result inan instance of On the Road? It seems that eitherone will have to accept that such an intention willdisqualify the resulting object from being an in-stance of the work (which would seem strange),or one would have to contend that Morris’s in-tention to not instantiate the novel has somehowbeen overridden by his instantiation of the novel(which would either seem to negate the necessityof intention or else require substantially more ex-planation).

I also do not suspect that Currie wants it to bethe case that the typesetter was creating a literarywork distinct from Kerouac’s, simply insofar as thetypesetter was engaged in a typesetting heuristic.So how are we to distinguish those heuristics thatresult in new artworks from those that do not?Perhaps Currie could contend that the typesetterwas not engaged in a project of discovery, and thatdiscovery is essential to art making. At times, Cur-rie discusses the artwork action type as the “dis-covering of [structure] S via heuristic path H.”18

As such, Currie might argue, where there is nodiscovery, there is no action type, and so no newartwork—and just so for the typesetting of Onthe Road. Certainly Currie could say this, but this


does not seem to represent his considered view.Currie himself raises Marcel Duchamp’s Foun-tain as a motivating case for his theory: when weappreciate Fountain, it is largely with regard toDuchamp’s activity, and not his product.19 Thiscertainly seems true. However, if we want to saythat Duchamp discovered the structure for Foun-tain, it would seem he did not pluck it out of Plato’sether, but rather discovered it in a plumbing-fixture showroom. If this qualifies as discovery,why cannot a typesetter equally discover a lin-guistic structure in a manuscript he is handed byan editor?

Late in his book, Currie contends that instanti-ation is in part a causal matter, such that an item,B, is a correct instance of some work, W, just incase it (i) is spelled like and (ii) is a copy (or a copyof a copy, etc.) of some incontestable instance ofW, A (for example, the original manuscript). Aparallel condition, Currie suggests, applies to thevisual arts, except that “is spelled like” is replacedwith “looks like,” and similarly for the other arts.The claim seems reasonable enough at first glance,and Currie contends that the same copy criterionapplies generally across the arts. The problem isthat no justification is provided for the criterion.Through several imagined cases, Currie providessubstantive reason to suggest that congruence ofspelling is not alone sufficient for instantiation,but why should the addition of the copy criterionfill this gap? Why cannot an activity of copyingconstitute a legitimate art-making heuristic?

One wonders how Currie would handle thework of appropriation artists like Sturtevant andLevine. Levine’s After Walker Evans: 4 (1981,hereafter AWE4), for example, is a photograph ofa print of a photograph by Evans: Alabama Ten-ant Farmer Wife (1936, hereafter ATFW). Levine’sphotograph not only “looks like,” but is grain-for-grain indistinguishable from an unproblematicinstance of Evans’s photograph—specifically, theplate in Evans’s 1978 collection First and Last thatLevine photographed. And there seems no ques-tion that AWE4 fulfills the copy criterion. On Cur-rie’s view, then, it would seem that AWE4 just is aninstance of ATFW. But is not this precisely the sortof case that we would hope Currie’s view coulddeal with? In a review of Levine’s rephotographs,Roberta Smith suggests that “it is the clarity andpassion of Evans’s images that hold us more thanMs. Levine’s subversive gesture.”20 But to prop-erly appreciate Levine’s work, one might reason-

ably say, is to appreciate it as a piece of appropria-tion art. Put another way, to appreciate the work isto appreciate Levine’s heuristic path—somethingdistinct from Evans’s heuristic path. But, it wouldseem that, on Currie’s view, the copy criteriontrumps the issue of heuristic paths: if AWE4 is aninstance of ATFW, then to appreciate it is to ap-preciate the heuristic that led to that structure, andthis would be Evans’s heuristic path, not Levine’s.If, however, Currie drops the copy criterion, weare left to ask how we are to distinguish in kindthe heuristic path of someone like Levine (an art-making heuristic) from the activity of the print labemployee who simply makes a print of Levine’sphotograph for her (not, we want to presume, anart-making heuristic). And all of these same prob-lems apply equally to GIJKH—the only differencebeing a matter of media, which Currie does notseem to think is a substantive issue.

It may be asked, do we get better answers aboutthe individuation of works and their instances ifwe take into account more aspects of the artist’saction and context in our identification of a work?Since Levinson and Currie each seek to fold inthe whole of an artist’s action and context in awork’s individuation, and yet their views cannotanswer our central question, it is unclear what fur-ther details might do the job. Ultimately, neitherLevinson nor Currie gives us a clear answer aboutGIJKH. And so, it might be suggested, there isreason to give the textualist’s view—unburdenedas it is by anything so obscure as contexts of cre-ation and heuristic paths—another look. How-ever, as even Goodman notes, authenticity con-ditions arise as a result of cultural practice withregard to a given art form.21 And as practices shift,so too can what counts as an instance of a givenwork.

iii. ontology and artistic practice

Amie Thomasson persuasively argues that thebackground ontological conceptions of competentspeakers are what ground the ontology of art-works. As with other ontological commitments,these background conceptions are embodied inour practices—how we refer to, treat, distinguish,interpret, and evaluate works. Thomasson argues:

[T]he only way to find out the truth about the ontol-ogy of the work of art is by way of conceptual anal-ysis that teases out from our practices and things we


say the tacit underlying ontological conception of thosewho ground the reference of the term, perhaps makingit more explicit, smoothing out any apparent inconsis-tencies, and showing its place in an overall ontologicalpicture.22

Simply put, paintings are essentially singularthings and poems allow for multiple genuine in-stances because this is how we treat them. And wetreat paintings as essentially singular things andpoems as multiple things because, at base, we con-ceive of them this way. If, however, a case presentsitself for which there exist no practices that evi-dence any such conception one way or the other,then, according to Thomasson, the matter is “sim-ply indeterminate” and we must decide what to do.Faced with an entirely new sort of case, we must—as competent speakers—decide how we are goingto move forward.

However, as some have noted, the matter ismore complicated than Thomasson’s suggestionwould indicate. Thomasson argues that ontology isgrounded in the background conceptions of com-petent speakers—but, we might ask, which com-petent speakers? And what do we do when onto-logical conceptions or artistic practices conflict?At a first pass, we have the concepts and prac-tices of artists themselves, those of art experts,and those of the general public—and there is noreason to think that, faced with some challengingcase, these three groups will all agree on how tomove forward.

In Works of Music, Julian Dodd suggests thatwhen the practices of art experts clash with thoseof ordinary consumers of art, it is the practices—and so, background assumptions—of the generalpublic that win out.23 Dodd is speaking herespecifically about music, and his conclusion thatthe artistic practices of the ordinary person trumpthose of the expert is grounded on his view thatthe ordinary appreciator of music is a “moder-ate musical empiricist”—someone whose appre-ciation is based only on what can be heard in thework and some basic knowledge about the work’sproper musical category. The music expert, con-versely, asks questions about the work’s place inthe history of music, the composer’s influences,and other such contextual matters—essentially,those things that concern Levinson and Currie.The background assumptions of the ordinary per-son, Dodd says, belong to all of us, and so out-weigh those of the expert minority. This would

seem a reasonable enough conclusion were it notfor the immediate difficulties that the view runsinto.

Typically, my students scoff at the suggestionthat Levine’s AWE4 is a distinct work fromEvans’s ATFW. When they argue that the twojust are the same work, however, I suggest thattheir protests come too late—that artistic practicehas determined otherwise. As I write this, AWE4is on display at New York’s prestigious WhitneyMuseum of American Art as a part of Levine’sretrospective show, “Mayhem.” Other pieces ofLevine’s appropriation art are in the permanentcollections of the Museum of Modern Art and theGuggenheim, and her works are the topic of reg-ular discussion in journal articles and art historytexts. Any university-level course in contempo-rary art would be remiss in omitting discussion ofappropriation art in general and Levine’s work inparticular. Levine is unquestionably one of themost influential artists of the last thirty years,and AWE4 is probably her most famous work.Levine’s works of appropriation are, in short,taken very seriously by artists and art experts.To rail against AWE4, it seems, is an exercise infutility.

Although the focus of Dodd’s discussion ison musical works, there seems nothing about hisreasoning that restricts its application to musicalcases. On Dodd’s view, the background assump-tions of the general public should win out, but atleast in this case, they have not. Pace Dodd, theconceptions and practice of the ordinary publichave simply been outweighed by those of artistsand art experts. Although there are surely moremembers of the general public than there areartists and art experts, the opinions of artists andexperts add cultural weight to AWE4. Because itis talked about, interpreted, evaluated—in short,taken seriously—by artists and experts, it hasbeen able to influence future works of art. And itis specifically Levine’s work that is influential—and not Evans’s—and this only because artistsand art experts conceive of it as a work distinctfrom ATFW. In this case, the ordinary public’s in-credulity has done nothing to forestall the work’seffects or its ontological distinction from Evans’sphotograph.

Does AWE4 thus set a precedent that may beapplied to GIJKH? Certainly, I think, the caseshows that the minority view of artists and art ex-perts can prevail over the majority view of the


general public if the minority conception can holdout long enough to influence future artists. Andthere seems little doubt that Morris is one of theartists directly influenced by Levine’s work. Butone art form need not be ontologically like an-other, and what brings about a conceptual revolu-tion in one arena need not do so in another.

A number of philosophers have argued that itis only because of technological limitations thatwe continue to think of such art kinds as paint-ings in essentially singular terms: that all that isholding us back from treating paintings as mul-tiply instantiable things is that we lack the tech-nology to make truly indistinguishable copies ofthem.24 I would suggest that this notion is only halfright. Such technological advances would eitherhave to be accompanied by or else result in con-ceptual changes about such art forms, and theseare by no means inevitable. That a technologi-cal change allows for new conceptualization is noguarantee that such a conceptual uptake will oc-cur. However, the notion that conceptual—andontological—revolution may ultimately rest ontechnological evolution is a persuasive one. JosephMargolis writes, “[A]uthenticity is a distinction ofan intentional and normative sort that is boundto reflect the shifting practices and technologicalpossibilities of different societies.”25 Technolog-ical advances allow for new practices, and newpractices may embody new conceptualizations—some of these with ontological implications.

Dworkin writes, “[R]ephotographing in 1980and retyping in 2000 or exhibiting an appropri-ated image in a SoHo gallery and publishing anappropriated text as poetry cannot be equivalentactivities.”26 Where Levine’s rephotographs oc-curred on the tail end of a century-old debateabout the nature of photography and its place inthe arts, Dworkin notes, conceptual writing is be-ing done against the backdrop of today’s “remixculture,” in which technological advances havelargely revised how we think about the creationand consumption of artworks, literature included.Widespread digitization has made copying incred-ibly easy, and the Internet provides a wealth ofmaterial to copy. Certainly, this has helped to fuelmusic and video sampling, but when anyone withInternet access can copy and paste just about any-thing with a couple of mouse clicks or keystrokes,it should not be surprising that many—especiallythose who were raised on such technology—should develop new ideas about the nature of art.

iv. plagiarism and copyright

In 2006, Harvard sophomore KaavyaViswanathan’s debut novel—How Opal MehtaGot Kissed, Got Wild, and Got a Life—waspulled from bookstore shelves and all copiesdestroyed under allegations that the novel pla-giarized several passages, primary characters, andplot developments from two novels by MeganMcCafferty. Four years later, seventeen-year-oldHelene Hegemann published her debut novel,Axolotl Roadkill, and was quickly criticized forlifting substantial material from the novel Strobo,written by German pseudonymic author Airen.Viswanathan maintained her innocence even asevidence piled up that she had taken not onlyfrom McCafferty, but also from Meg Cabot’sThe Princess Diaries, Salman Rushdie’s Harounand the Sea of Stories, and other sources. Hege-mann admitted taking from Airen’s novel andapologized, but defended her literary approach,arguing, “There’s no such thing as originalityanyway, just authenticity.”27 Justifiable or not,each of these seems on its face a straightforwardcase of plagiarism, understood as the unattributedappropriation of another’s ideas or expression.

Viswanathan’s novel, presumably, was de-stroyed not because it plagiarized, however, butbecause it infringed copyright. Opal Mehta waspublished by Little, Brown and Company, andthe copyright to McCafferty’s novels is ownedby Random House. Each of these is a majorU.S. publisher, and as a rule, publishers prefer toavoid copyright litigation. Hegemann’s novel waspublished by Ullstein-Verlag, one of Germany’slargest publishers, and Airen’s Strobo was pub-lished in 2009 by Sukultur, a German indepen-dent publisher. As soon as evidence of appro-priation came to light, Ullstein sought a settle-ment with Sukultur.28 Fueled by post-structuralistnotions of authorship (or, rather, nonauthor-ship), many, like Hegemann, treat artworks—literary and otherwise—as having no origin, asauthorless.29 Unfortunately for them, the writ-ers and publishers of many of the works fromwhich they appropriate do not share this senti-ment. Here, the clashing background conceptionsare not simply those of such high-level categoriesas artists, art experts, and the general public—butrather subsets of these.

If, as Thomasson suggests, our background on-tological conceptions are embedded in our artistic


practices, then certainly matters of plagiarism andcopyright should be counted among these. Cen-trally, plagiarism is a moral matter and copyright alegal one, but so too are they artistic matters, bothreflecting and influencing how we conceptualizeart. Although, by putting his name on the book,Morris seems to assert that GIJKH is his ownwork, this is not straightforwardly a case of pla-giarism: Morris conceals neither his source nor hismethod, and he is not claiming Kerouac’s accom-plishments as his own. Copyright infringement,conversely, does not centrally rest on matters ofattribution. Contrary to popular belief, accuratelyciting one’s sources in no way alleviates a chargeof copyright infringement. Goldsmith, however,suggests that copyright plays a different role withGIJKH. Referring to Morris’s original blog en-tries, Goldsmith notes:

Morris has only had a handful of commenters/passengers, curiously, none of them have been Kerouac’sestate or his business representatives calling foul playfor freely republishing a very lucrative artwork. Mor-ris’ work, then, is an anomaly—not a pirated editionworth legally pursuing—and as such, becoming func-tionless and aestheticized, it can only be a work of art.30

Goldsmith’s claim here seems to be that, sinceKerouac’s estate did not pursue Morris for his blogentries, his work has become an artwork—and,presumably, one distinct from Kerouac’s.31 Thisis, on its face, an ontological claim. Indeed, thecopyright page of GIJKH states, “This work is li-censed under the Creative Commons Attribution2.5 Licence. You are free to share or remix thiswork but should always attribute the work in themanner specified by the author.”32 Presumably,Morris is allowing that you can copy and modifyhis work (provided proper attribution), not thatyou can copy or modify Kerouac’s work (I wouldnot assume that even Morris presumes to claimcontrol over the copyright of Kerouac’s novel).33

How does Morris’s position hold up under stan-dard interpretations of the law?

Whether or not a given item is copyrightablestandardly depends, first, upon its “originality.”34

In the discourse of copyright, “originality” is nota matter of novelty nor is the term taken to im-ply any sort of aesthetic merit. Rather, original-ity in this sense is a matter of whether the itemowes its origin to its author. Any element copiedfrom a preexisting work is not original to the copy-

ist and so not newly copyrightable. Where everyelement of some item is copied from some pre-existing work, there is nothing in the new itemthat is newly copyrightable. The item is an ex-act copy, and an exact copy lacks any originality.Legally, at least, such a copy would simply be aninstance of the preexisting work: it would warrantno copyright of its own, and the copyright ownerof the original work would possess the copyrightto it.35 On our principle, two authors might inde-pendently and coincidentally string together thesame words in the same order, and in such aneventuality each product would be recognized asan independently copyrightable work.36 Althoughtextually indistinguishable, each has a unique ori-gin. So, while Menard’s Quixote would be a uniquework under this principle, there is nothing inde-pendently copyrightable about GIJKH—it lacksoriginality. Of course, unoriginality is supposed tobe the very point of conceptual writing.

On this basis, it would seem an instance ofGIJKH just is an instance of On the Road, legallyspeaking. However, perhaps especially in the law,things are not so clear-cut. Although GIJKH iscertainly a prima facie case of copyright infringe-ment, the copyright laws of a number of coun-tries allow for exceptions to copyright under theheading of “fair dealing,” permitting copying forpurposes of criticism, comment, and satire.37 Theroughly equivalent doctrine in the United Statesis that of “fair use,” and recent attempts havebeen made to justify appropriation art under thisdoctrine.38 None of these, however, has been acase of straightforward appropriation resultingin textually or visually indistinguishable objects.Moreover, even where a use is deemed “fair,”such a finding is not standardly taken as recog-nition that the use thus represents a new and dis-tinct work, legally speaking. Rather, this is takento depend upon whether the work is sufficientlyoriginal. The one possibility for a finding of fair useresulting in independent copyrightability seems tobe when that use is deemed “fair” because it is suf-ficiently “transformative.” Writing the SupremeCourt decision in the 1994 case of Campbell v.Acuff-Rose, Justice Souter contends that deter-mining whether or not some use is fair dependscentrally upon “whether the new work merely‘supersede[s] the objects’ of the original . . . orinstead adds something new, with a further pur-pose or different character, altering the first withnew expression, meaning, or message.”39 In other


words, Souter suggests, the key question of fairuse is “whether and to what extent the new workis transformative.”40 Matthew Sag notes, “[W]hileunproductive or untransformative uses are notto be presumptively denied fair use protection,the heart of the doctrine is reserved for ‘trans-formative’ uses.”41 Exactly what constitutes suf-ficient transformation—and whether this wouldjustify independent copyright in a transformativeuse—however, has yet to be established in thelaw.42

Literary theorist Marjorie Perloff suggeststhat “context always transforms content.”43 This,Perloff contends, is centrally a matter of use andfunction. In 2003, Slate author Hart Seely pub-lished Pieces of Intelligence: The Existential Po-etry of Donald H. Rumsfeld, a collection of po-ems whose language is lifted directly from publicspeeches and briefings by the former U.S. Secre-tary of Defense. Such works are standardly re-ferred to as “found poetry”—textual materialstransformed into poems through little more thanframing them as such. Goldsmith writes, “If all lan-guage can be transformed into poetry by merelyreframing—an exciting possibility—then she whoreframes words in the most charged and convinc-ing way will be judged the best.”44 An excitingpossibility indeed, but this is a big “if.” Certainly,aestheticians should be familiar with the idea thatreframing an object can transform that object—and that transformation need not depend uponchanges to an object’s formal, perceptual, or tex-tual properties, but can depend instead upon itsuse or function. Arthur Danto, George Dickie,Richard Lind, and many others have suggestedthat the difference between Duchamp’s Foun-tain and an indiscernible urinal (or, alternatively,Fountain and the urinal of which it is composedprior to its selection by Duchamp) lies in the for-mer’s being used as art, and the latter’s not.45 But,importantly, such arguments are traditionally em-ployed to establish an ontological difference be-tween an art object and an indiscernible nonartobject. In the case of On the Road and GIJKH,we have, purportedly, two textually indistinguish-able but nonidentical art objects, one a copy of theother—and both, seemingly, of the same art-kind.Has Morris “transformed” On the Road in the rel-evant sense? Is the context of retyping the worksufficient for transformation—sufficient, that is, toestablish GIJKH as a textually indistinguishablecopy of, but nevertheless a work distinct from,

On the Road? The only non-question-begging an-swer seems to be . . . maybe.

It may be that the influence of today’s “remixculture” will ultimately press reconsideration ofthe nature and moral foundations of copyright—particularly the notion of originality upon whichcontemporary copyright rests—forcing reevalua-tion of intellectual property law as a whole. Anumber of theorists have suggested such a move.46

In the case of AWE4, I suggested, it was ultimatelythe influence of the work that established its non-identity with ATFW. And certainly, were interna-tional copyright law to be overhauled—or, what ismore likely, were GIJKH found to be legally “fair”on the basis that Morris had transformed Ker-ouac’s work without any significant alteration toits textual properties—this could go a long way to-ward influencing the actions of future authors (andsimilarly if Morris’s book were ultimately foundto be infringing). Unfortunately for our case, fairuse outcomes are notoriously difficult to predict—largely owing to the nature of the legal doctrineitself—and generally have to be determined ona case-by-case basis.47 Moreover, the higher thecourt, the more such outcomes tend to turn noton factual evidence, but rather on the philosoph-ical interpretation of the court. And so the out-comes of such cases—including their ontologicalimplications—ultimately come down to legal de-cisions. And this is, of course, essentially the veryproblem with which we started. Whether or notthe case of GIJKH comes to a fore, however, andbecomes an influential legal case depends uponthe copyright owners of On the Road pressing theissue.

Certainly, Morris acts as if GIJKH is his ownwork. And there are at least some critics and otherexperts who treat GIJKH as a work distinct fromKerouac’s novel. It has garnered reviews in Amer-ican Book Review, 3:AM Magazine, and The Con-stant Critic, for example.48 But this does not settlethe matter. These reviews represent a small groupof critics—those specializing in avant-garde, fringeworks—very likely representing an extreme mi-nority view. Whether they have sufficient culturalweight to establish GIJKH as its own work re-mains an open question. GIJKH stands as a poten-tial “watershed” work—a critical turning point inhow we think about and treat art. It epitomizes theclash between views on the nature of art, creativ-ity, and originality. And it makes apparent surpris-ing holes in our established ontological models.


Because of its legal implications, its very existencemay force us to resolve our concepts and closeour ontological loopholes. Or, then again, it maygo almost entirely overlooked. True watershedworks, I suspect, are quite rare in the history ofart. Duchamp’s Fountain is certainly one. Picasso’sLes Demoiselles d’Avignon and John Cage’s 4′33′′

may be others. Each of these forced not only artistsbut ultimately the general public to rethink theirnotions of art. Each changed the nature and tra-jectory of art. Potential watershed works are thosethat stand at the outer boundary of our conceptsof art and push further outward. This is where GI-JKH stands. Whether it breaks through the bound-ary or bounces back depends first upon whetherwe notice that the boundary is itself being tested.49

DARREN HUDSON HICK

Department of PhilosophySusquehanna UniversitySelinsgrove, Pennsylvania 17870

internet: [email protected]

1. “Getting Inside Jack Kerouac’s 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 Kerouac’s Head(York: information as material, 2010).

4. John C. Welchman, Art after Appropriation: Essayson Art in the 1990s (London: G+B Arts International, 2001),p. 270.

5. Anne Guthrie, “Conceptual Poetry/ConceptualInterview,” http://poetrycenter.arizona.edu/enewsletter/April2008/enews0408_concpoet_read.shtml.

6. Since the only way to make coherent sense of thestory in GIJKH is to read it back-to-front, I do not seethis as a defeater for the case. As a comparison case,Japanese comics—manga—are traditionally printed withthe first page at the “back” of the book, and are read inwhat we Westerners would think of as back-to-front. Whenreprinted in the West, such comics are sometimes printedin the original published order, and sometimes reversed. Inwhatever order the pages are printed, I would suggest, oneis reading an instance of the comic. If you think the pageorder of GIJKH is a defeater, then imagine the case withoutthis issue.

7. Nelson Goodman, Languages of Art (Indianapolis:Hackett, 1976), p. 114.

8. Nelson Goodman and Catherine Elgin, “Interpreta-tion and Identity: Can the Work Survive the World?” CriticalInquiry 12 (1986): 564–575, at p. 573.

9. Nicholas Wolterstorff, Works and Worlds of Art (Ox-ford: Clarendon Press, 1980).

10. See, for example, Gregory Currie, “Work and Text,”Mind 100 (1991): 325–340.

11. Jerrold Levinson, “What a Musical Work Is,” Jour-nal of Philosophy 77 (1980): 5–28; and Gregory Currie, AnOntology of Art (New York: St. Martin’s Press, 1989).

12. Indeed, Levinson relies on the literary Menard caseto motivate his view on music. See Levinson, “What a Musi-cal Work Is,” p. 10n13. Levinson makes the explicit case forliterary works in “Autographic and Allographic Art Revis-ited,” Philosophical Studies 38 (1980): 367–383.

13. Craig Dworkin, “The Fate of Echo,” in Against Ex-pression: An Anthology of Conceptual Writing, ed. KennethGoldsmith and Craig Dworkin (Northwestern UniversityPress, 2010), pp. xxiii–liv, at p. xxxviii.

14. Kenneth Goldsmith, Uncreative Writing (ColumbiaUniversity 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 Levinson’s notion of

“art-unconscious intention” in his “Defining Art Histori-cally,” The British Journal of Aesthetics 19 (1979): 21–33.

18. Currie, An Ontology of Art, p. 70.19. Currie, An Ontology of Art, pp. 76–77.20. Roberta Smith, “Flattery (Sincere?) Lightly

Dusted with Irony,” New York Times, November 10, 2011,http://www.nytimes.com/2011/11/11/arts/design/sherrie-levine-mayhem-at-whitney-museum-review.html.

21. Goodman, Languages of Art, pp. 121–122.22. Amie Thomasson, “The Ontology of Art and

Knowledge in Aesthetics,” The Journal of Aesthetics andArt Criticism 63 (2005): 221–229, at p. 227.

23. Julian Dodd, Works of Music (Cornell UniversityPress, 2007), p. 207.

24. See, for example, P. F. Strawson, Individuals(London: Routledge, 1959), p. 23; Michael Wreen, “Good-man on Forgery,” Philosophical Quarterly 33 (1983): 340–353, at p. 352; Currie, An Ontology of Art, pp. 121–123. Seealso David Davies, “Multiple Instances and Multiple ‘In-stances’,” The British Journal of Aesthetics 50 (2010): 411–426.

25. Joseph Margolis, “Art, Forgery, and Authenticity,”in The Forger’s Art, ed. Denis Dutton (University of Cali-fornia Press, 1983), p. 165.

26. Dworkin, “The Fate of Echo,” p. xli.27. Nicholas Kulish, “Author, 17, Says It’s ‘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 Pla-giarism Claim,” The Local, February 9, 2010, http://www.thelocal.de/society/20100209–25143.html.

29. In particular, Roland Barthes’s “The Death of theAuthor,” in Image, Music, Text, trans. Stephen Heath (NewYork: Hill and Wang, 1977); and Michel Foucault’s “What Isan Author?” trans. Josue V. Harari, in The Foucault Reader,ed. Paul Rainbow (New York: Pantheon Books, 1984).

30. Morris, Getting Inside Jack Kerouac’s Head, p. xiii.31. Notably, Kerouac’s estate does not lose its ability

to sue for copyright infringement for having overlookedMorris’s blog.

32. Morris, Getting Inside Jack Kerouac’s 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. Thepublisher of GIJKH, information as material, was foundedand is headed by Morris himself.


34. Copyright law differs by country, but this is a stan-dard element in the laws of many countries, including Amer-ica and Britain. The laws of other nations refer to largelyanalogous conditions: the Italian Copyright Act to “worksof the talent of creative character,” for instance, and theGerman Copyright Act to “personal mental creations.”

35. See Darren Hudson Hick, “Toward an Ontologyof Authored Works,” The British Journal of Aesthetics 51(2011): 185–199.

36. This is explicit in U.S. law: “The ‘author’ is entitledto a copyright if he independently contrived a work com-pletely identical with what went before; similarly, althoughhe obtains a valid copyright, he has no right to prevent an-other from publishing a work identical with his, if not copiedfrom his.” Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d99, 103 (2d Cir. 1951). The copyright law of other nationsbuilt on a similar principle of originality would presumablyhave similar results.

37. This includes countries in the Commonwealth ofNations. Most other European countries, for example, haveno equivalently broad doctrine, but incorporate exemptionsfor 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), aff’d, 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 Struc-tural Analysis of Copyright’s Fair Use Doctrine,” Michigan

Telecommunications and Technology Law Review 11 (2005):381–435, at p. 388.

42. See Darren Hudson Hick, “Appropriation andTransformation,” Fordham Intellectual Property, Media &Entertainment Law Journal, forthcoming.

43. Marjorie Perloff, Unoriginal Genius (University ofChicago Press, 2010), p. 48.

44. Goldsmith, Uncreative Writing, p. 10.45. Arthur C. Danto, The Transfiguration of the Com-

monplace (Harvard University Press, 1981); George Dickie,“The New Institutional Theory of Art,” in Aesthetics: A Crit-ical Anthology, 2nd ed., ed. George Dickie, Richard Sclafani,and Ronald Roblin (New York: St. Martin’s Press, 1989); andRichard Lind, “The Aesthetic Essence of Art,” The Journalof Aesthetics and Art Criticism 50 (1992): 117–129.

46. See, for example, Martha Woodmansee and PeterJaszi, eds., The Construction of Authorship (Duke UniversityPress, 1994).

47. See Sag, “God in the Machine,” and Darren HudsonHick, “Mystery and Misdirection: Some Problems of FairUse and Users’ Rights,” Journal of the Copyright Society ofthe USA 56 (2009): 401–420.

48. Doug Nufer, “On the Road Again,” AmericanBook Review 32 (2011): 11. Colin Herd, “Being JackKerouac,” 3:AM Magazine, January 12, 2011, http://www.3ammagazine.com/3am/being-jack-kerouac/. Vanessa Place,“Getting Inside Jack Kerouac’s Head,” The ConstantCritic, October 25, 2010, http://www.constantcritic.com/vanessa_place/getting-inside-jack-kerouacs-head/.

49. My thanks to Karla Kelsey for pointing out to methe book that is the focus of this article and for our numerousdiscussions on the topics herein.

ontology and literary appropriation

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