Approaching Woodhill

William Wordsworth’s famous poem Daffodils was written after taking a walk through Gowbarrow Park with his sister, Dorothy. Dorothy wrote of the event in her journal later that day on April 15th, 1802; William’s poem was written in 1804 and originally published in 1807. To be painstakingly clear: William wrote the poem and Dorothy wrote the journal article. However, it is known that William read Dorothy’s journals often and it can be reasonably assumed by the space between the walk and the poem that upon reading her journal entry of that April day years later, he was then driven to write the poem Daffodils. So, who is the author of the poem Daffodils: Dorothy or William?

To settle this dispute, imagine that Dorothy went to a modern court and sued William (under modern laws and standards) for copyright infringement. Who would win? Does Daffodils constitute a copyright infringement? I will be quoting William Wordsworth’s writings—outside of Daffodils—in a way unrelated to his stance in this imaginary courtroom, and, to avoid confusion, I thusly will refer to the defendant William as “Billy”, plaintiff Dorothy as “Dotty”. I want to separate the writings of William from Billy so that I may quote William in opposition to Billy’s defense without confusion, so from here forward, do not think of Billy as William or Dotty as Dorothy; the court has only Billy and Dotty.

On the first day of trial, Dotty’s lawyer would start his opening speech by talking with a misty-eyed reverence on the noble conception of authorship. “Authorship,” he would say loudly, letting the echo ring with some type of conviction. “It is innate. Inborn. True authorship lives inside of the author. It is spontaneous, bursting forth without the aid of outside forces. William Wordsworth said, ‘How exquisitely the individual Mind to the external World is fitted—and how exquisitely too—the external World is fitted to the Mind; and [how amazing] the Creation (by no lower name can it be called) which with blended might accomplish.’ An author’s creation is near divinity, according to Wordsworth. As he says, ‘Creation’, referring to the biblical genesis, is the same for God as it is for an author: it is the birth of a world. Creation is an act of the mind consuming the outside world and producing a new being; an impregnation that morphs and breaks free from the author as a piece of their soul. This is what Dotty is: an author. She wrote her journal entry after seeing that plot of daffodils, and when she did, the world flowed into her. That night, out flowed her words into her journal. As an author, her words came from inside of her, and she created the beauty of that scene in a way that was wholly new to this world, unseen and unread before. She birthed that idea the moment her pen left the page. Edward Young, an English poet, believed that creativity ‘may be said to be of a vegetable nature; it rises spontaneously from the vital root of genius; it grows, it is not made. Imitations are often a sort of manufacture wrought up by those mechanics, art and labor, out of pre-existent materials not their own’ . Edward Young is a kindred spirit to my client, as he believes that an imitation is made out of pre-existent materials, like Billy’s poem being made from the materials in Dotty’s journal entry. He is not a true author in the way Dotty is. The poem Daffodils by Billy is an infringement to my client’s work. Billy is not an author, he is merely an imitator, and he is infringing upon Dotty’s copyright.”

Dotty’s lawyer would sit down confidently, cross his legs in arrogance, and then Billy’s lawyer would stand, straighten his tie, and begin his opening statement with a humble tone. “An author?” he would muse. “An author is a person who commits pen to paper. An author is somebody who writes. In a more broad sense, the Oxford English Dictionary says that an author is someone who ‘originates or gives existence to anything'. My client wrote something…he even gave existence to something: a poem. His poem is clearly his own and is not Dotty’s. To plainly say that an author may only use things that spring up inside of them or be influenced by nature completely denies all academia and human history. Authorship grows and uses what has come before. Inspiration for creation is not an infringement if said inspiration comes from another’s work. If anything, it is admiration.” There would be a silence in this imaginary court. His joke would not go over well; the judge would be a rather hard man.

“For Billy’s work to be an infringmenet,” Billy’s lawyer would continue, “there cannot be substantial similarity between the two works—“ at which point Billy’s lawyer would pause, then explain to the court, “’substantial similarity’ and other legal terms I will be getting to later in my case, your honor. But, Billy’s work is not substantially like Dotty’s. Stepping back a little, an author can be inspired by other author’s works. That is the human collective working together to inspire each other in an organic, evolving way. For example, Samuel Johnson created the first printed dictionary in the English language. Print was seen as a method of fixity—it still is—so in an abstract way, Johnson ‘defined’ the language as a caste of words. However, he created this concrete definition of what the English language is by using many prominent authors of his time. By using examples from as many respected, well-written people as he could, he compiled a list of words which were considered to be part of the language’s lexicon by its best minds. So, you see, the language we use is a communal device, created by a myriad of authors. The English language has many authors. Who is to say the word daffodil was not once invented? Does that make Dotty guilty of not creating her own word for that flower? I’ll forego the obvious Shakespeare reference, and instead give you the philosopher John Locke: ‘The best way to come to truth being to examine things as really they are, and not to conclude they are, as we fancy of ourselves, or have been taught by others to imagine.’ Billy wrote a poem about what the scene was to him, and he is allowed to because he was obviously there as well with Dotty. The fact Dotty’s writing jogged his mind is of no consequence. Further, I submit—“

“Hurry up your notion on authorship, please,” the judge would say with boredom.

“Sorry,” Billy’s attorney says, and continues. “I submit another quote from Cyril Knoblauch: ‘Books engender other books, as sentences engender other sentences, each responding to inadequacies in what has come before, each condemned to some inadequacy of its own.’ Knoblauch’s ‘inadequacy’ argument refers to the fallacies within some ‘factual’ texts and the continuing evolution of the sciences and other academic pursuits. The more that humanity learns, the more there is a need to publish newer editions of previously-published and possibly wrong information. In respect to creative works instead of academic works, new creative endeavors can be created by inspiration from older pieces, and so long as the new piece is not identical to its inspiration, then they both should ably co-exist. In fact, I say they can. The nature of a human author is that they absorb what has come before them and strive to be an author themselves, and it is impossible to be an author without having absorbed something written by someone else at some point.”

“Thank you for your opening statements,” the judge would say. Next, the judge would ask all present to return the next day to start into the litigation of the case. As they all exited, Dotty and Billy would exchange boiling looks of contempt, a brother and a sister battling each other with the scales of justice, but both would be hustled along by their respective lawyers.

On the next day, we would find Dotty’s lawyer pacing the court, hands behind his back, happily listing the legal reasons why Billy is infringing on Dotty’s work. “Dotty’s work was copyrighted from the instantaneous moment she wrote it. This is known as fixity—which means she had automatic copyright protection from the moment had been fixed to a tangible medium of expression, e.g. a pen to a paper.”

“Objection!” Billy’s lawyer would yell as he would stand and point directly at Dotty’s lawyer. “The plaintiff wishes to persuade the court that there is plagiarism. There is no plagiarism between Daffodils and Dotty’s journal entry. There is not one instance where a phrase or words are used in a way that indicates any direct piracy of the work. Therefore, there should be no issue about whether Daffodils is a copy.”

Instantly, Dotty’s lawyer would be shooting verbal artillery back. “They both speak of the daffodils seeming ‘gay’. Both have the flowers ‘dancing’. They both speak of the ‘heads’ of the flowers. They have similar personifying remarks about the flowers.” Boom, boom, boom Dotty’s lawyer’s cannon mouth would go. The judge would reluctantly instruct Dotty’s lawyer to simply continue. Although aggravated, he would. “Fine, then we shall look at Daffodils as an intellectual copyright that has been infringed. I will reference Judge Learned Hand’s case Sheldon et. al. v. Metro-Goldwyn Pictures Corporation et. al. In this case, Judge Hand found that there was substantial similarity between a movie by Metro-Goldwyn and a play by Sheldon. To come to this verdict, Judge Hand found ‘parallelism of character and incident sufficient to constitute substantial similarity, even though the dialogue of the works was different, and even though both works were based loosely upon an actual murder case in which Madeleine Smith in 1857 poisoned her former lover’. ”

“In relation to Dotty and Billy, they both did walk to that meadow, just like the play and the movie were based on the factual murder case. And, as seen above, even though there is a true fact behind the work, you can still copyright the expression of that factual event. Also, let us not forget that Billy’s poem was created only after viewing Dotty’s journal entry on the walk. He would not have otherwise written the poem. He wrote his in bad taste and he did not, does not possess that innate authorial sense to write Daffodils. The beauty of Billy’s poem is spiritually lifted from the beauty that Dorothy created in her journal entry, not in the initial moment that they shared. He is lifting her expression of the moment.”

Dotty’s lawyer would sit down and confidently cross his legs, much the same way he would have done the previous day. Billy would be scared, thinking that he may be actually at fault and have to pay Dotty for copyright infringement, but that’s when his lawyer would smile devilishly, pat him on the knee, and then stand. He would adjust his suit and then begin.

“First of all, Judge Learned Hand presided over a similar case to the Sheldon case. Hand’s decision in Nichols v. Universal Pictures Corporation was that a story with generic similarities is not susceptible of copyright. In the case, a play about lovers from opposing, feuding Irish and Jewish families was no more copyrightable than Romeo and Juliet. I propose that walking in a meadow and seeing flowers is not a copyrightable storyline…for a journal entry or a poem. It seems, actually, to be one of the more generic ideas I can possibly think of. But, we’re not here for an opinion, we’re here for fact. So, here’s another fact: Justice Oliver Wendell Holmes believed that almost any creative effort, however modest, would suffice for copyright. ‘The [work] is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something [the produced art] he may copyright.’ ”

Dotty’s lawyer would, at this point, nervously grab for the pitcher and pour a glass of water. Billy’s lawyer would now don a gaze of a hunter, stalking his prey’s bleeding trail through the snowy woods. His trophy buck was not about to get away. “Furthermore, in Title 17, Chapter 1, Section 102, part b, states ‘in no case does copyright protection for an original work of authorship extend to any idea.’ The idea of stumbling onto a flower patch is not copyrightable. But, what about the ideas in Billy’s poem that are not anywhere in Dotty’s? Dotty describes the scene, and she does so very well, but the extent of her poetic flourishes ends at personifying the flowers as ‘gay’, ‘dancing’ and ‘resting their heads upon these stones as on a pillow for weariness’. Otherwise, it is all straight prose description. In the case Harper & Row, Publishers, Inc. v. National Enterprises, they found that ‘at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript’, and that was enough to constitute an infringement. That is extremely more than is available on display here.”

“Unlike Dotty’s prosaic journal entry, Billy’s poem has him wandering metaphorically as a lonely cloud who sees those daffodils, and, might I add, those daffodils are ‘beside the lake’, not any specific lake, just a lake. Then, he compares them to the endless Milky Way; Dotty does not. And, then, Billy talks of how he remembers them while he lies on a couch; Dotty does not. Dotty’s is a journal entry, not a reflective poem. The similarity here is that someone would yell at me for saying an ocean is blue and it looks like it stretches on forever; I believe that most everyone has that notion when they first see the ocean. There is nothing copyrightable about that idea, and nor is there about dancing flowers in a breeze. The theme or idea of a work may be copied but the elements of the works are what sets them apart. For all the elements listed above, as well as the obvious element of one being a prosaic, constructionally-thoughtless journal entry and one being a rhythmic, rhyming, deliberately-constructed poem, it is easy to see that there is no infringement here. And, let us not forget: you cannot copyright an idea of seeing flowers on a walk.”

The Judge would thank both of the lawyers for their efforts and asks them to return once more in the morning for closing comments and a verdict. Both Billy and Dotty, at this point, would shoot antagonizing looks at each other once more. They probably won’t be sharing any more walks to the lake after this case.

In the morning, the judge would ask for closing statements, and then he would add the plea that both lawyers be brief. Dotty’s lawyer would begin. “Dotty is the original author of the daffodils piece. She created the scene once nature flowed into her and Billy only was inspired after reading her work. He imposes upon the creation she has made, and he infringes based on a series of obvious and numerous parallelisms between the two works. Despite the true event having happened and both parties having been represented, the parallel of incident and expression is too great to ignore. The expression of a factual event can be copyrighted, and Dotty’s is, and Billy only created his work once he read her copyrighted expression.”

The judge would nod now to Billy’s lawyer. “Billy did not infringe because his expression is wholly unique from Dotty’s. First, all authors are part of the human history and they build upon what has come before them. This is how we progress in the sciences and mathematics, by surging forward with more and more knowledge—knowledge that our ancestors worked to create. This same sense of momentum through the generations is true with literature. Literature can be an inspiration to further writing; a student should not need to figure out mathematics on their own…if they did, every generation would die before they got far enough to intrinsically deduce something like physic and, even then, they could never pass on their knowledge to be picked up by the next generation. Literature, too, should inspire and continue from generation to generation and not be reset without the ability to build off of existing works.”

“Further, the idea of seeing a field of daffodils is not a copyrightable idea. Ideas may not be copyrighted. Next, there is not enough similarity in the language and the construction of the pieces to call for a plagiarism defense. And, as if all of that was not enough, there comes Judge Holmes edict that nearly any expression a man creates is copyrightable.”

The judge, in this imaginary what-if courtroom, would thank both men and then retire to his quarters. At this point, there would be much glaring and face-making between Dotty and Billy and some passive-aggressive conversation about lunch at up-scale restaurants between the lawyers. They would all be silenced by the return of the judge. He would sit and then deliver his verdict: “As I have heard the evidence, this court sides in favor of…”

There would be tension in the imaginary courtroom. A lot of tension.

“…The defendant.” Billy. “The idea of walking to a pad of daffodils is not copyrightable. Although many of the same words are used between the two poems, they do not substantially create a similarity. Flowers are often thought to dance, be gay, and to rest their heads. Or, I believe that many writers could independently create those personifying remarks about flowers. These are not copyrightable phrases. Further, authorship inevitably comes from society and history, considering we have language, which is a construction of past authors, from cavemen to gentlemen, modifying and re-tailoring and authoring the language anew for every generation. Billy’s poem reflects a depth of expression and creation in poetic terms that is not present in Dotty’s, and thus, creates a new piece of work altogether. It nearly flirts with the lines of fair use by having created a wholly individual product from the inspiration of an old product. Understand that it is clear that Billy was inspired by Dotty, but that is not a crime. Inspiration from one person’s work to another is the continuing human soul in action, and is encouraged by this court.”

Billy would jump in his victory, Dotty would fume angrily, the lawyers would shake hands amicably, and then none of it would matter, because this court case will never happen. They’re both long dead.

As it stands, William Wordsworth saw no legal action for the poem he wrote. Dorothy, in fact, liked her brother’s writing very much.

Dorothy Wordsworth's Journal:
http://www.rc.umd.edu/rchs/reader/dwdaff.html.

William Wordsworth's poem Daffodils:
http://www.poetry-online.org/wordsworth_daffodils.htm.

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