Frolic of His Own by William Gaddis
—Right here.
—Your cigarette there, just worried it could roll off on the floor and set the whole place . . .
—Sorry. Here, let me hang that up for you. This is a beautiful place you’ve got here isn’t it. Probably go for a million these days.
—Add another million for the pond out there.
—And that sign at the gate.
—Well the privacy yes, that’s worth more than ever now isn’t it with these miserable little tract houses going up everywhere, not to speak of the people who infest them, it’s really the only thing left worth having that money can buy.
—You own all of it?
—Let’s not get into that right now. Where were we.
—Point with this movie, you come down to the difference between protection for an idea and the expression of the idea, the artistic . . .
—You’ve seen that ad for the movie they’re running haven’t you? Based on a true story? They’re admitting it right there aren’t they? that they took this story of my grandfather I wrote my play about?
—Not just admitting it no, see what they’re doing is . . .
—I can’t copyright my own grandfather all right, I know it. I can’t copyright the Civil War I can’t copyright history I know all that, but they . . .
—What they’re doing there Oscar, they’re heading you off at the pass.
—What pass, what do you mean.
—Means it’s right out there in the public record doesn’t it? Based on a true story means it’s right out there in the public domain where anybody can pick it up for a play, write a novel, make a movie?
—All right then listen! Did they know that? They’d already made their revolting movie hadn’t they? All this didn’t come out before they made it, it came out afterward and they put their ad together at the last minute when the picture opened, when they’d seen these awful, these scurrilous stories about my father in the Szyrk case in the mushmouthed press down there digging up anything they can, anything to try to make the whole family sound mad I’ve got some of it right here. PAST COMES TO LIFE IN SZYRK DECISION, ECCENTRIC JURIST SPARKED HOLMES COURT. They’ve dug around in their musty old newspaper morgues down there, they keep everything, that’s what the South is all about, come up with these yellowed clippings here’s one, from nineteen thirty, listen. The soldiers who served as substitutes for Justice Crease in the Union and Confederate armies were both killed in the same battle, and it is said that his feeling of responsibility for their deaths now threatens to become an obsession, firmly convinced after discovering that their regiments faced each other in the bloody day long battle that, among the thousands of troops engaged, the two substitutes died at each other’s hands. As an associate justice on the U.S. Supreme Court, it appears that his passionate opinions and outspoken clashes with Justice Holmes, who himself still bears wounds from Ball’s Bluff, Antietam and Fredericksburg, arise from umbrage taken by Holmes over what he regards as his colleague’s expedient use of substitutes in order to avoid the, that’s ridiculous right there, it’s plain libel. Holmes knew he’d fought at Ball’s Bluff, he knew the whole story, William James said that Holmes would vote for anybody who’d fought in that awful war, no. What it was between them, for Holmes everything was the law and when somebody held forth about justice like my grandfather did Holmes argued that he was refusing to think in terms of the evidence, to think in legal terms that’s what it was all about between them right to the end, these clashes and passionate opinions he was as obsessed with justice as Holmes was with the law you can see it in his face up there, that picture up, wait, before you sit down will you turn it around? Up there facing the wall where she, where that woman must have been dusting in here yes, because that’s what it’s all about, this character in my play who’s based on him there’s a whole passage here where he’s just gone down to see his mother for the last time before he goes north and he’d had an accident, he comes in all torn up and interrupts a conversation Kane is having with William.
THOMAS
Coming over that rise, down, there by the chapel, we flushed a bird square up in front of us and the mare shied and lost her footing. She went down, the cinch broke, and I fell on the stones, crawling, when she reared up over me, crawling across the stones on the battlefield . . .
(SITTING MORE UPRIGHT, HE DRINKS DOWN WHISKY)
There, I’d gone down to accept what she’d offered, to meet her terms, and then . . . no! What I want, after what I’ve seen now . . .
KANE
(SOLICITOUSLY, AFTER PAUSE)
What is that?
THOMAS
(ALMOST SNARLS)
Only justice!
KANE
(WITH RENEWED EFFORT AT LIGHTNESS)
Well! William and I here have just been looking for the same thing. I hope you have better luck than we did.
THOMAS
(TONELESSLY BELLIGERENT, STARING AHEAD)
And what did you find, then?
KANE
(AS THOUGH HUMOURING HIM)
I’m afraid we found that it was nothing much at all, didn’t we William.
(AS THOMAS MUTTERS WITH CONTEMPT; TO WILLIAM)
Or had we gone further? Were we quite finished, William?
THOMAS
(WITH ANNOYANCE, HOLDING UP HIS GLASS TO KANE)
Finish, then. No, damn it, let me hear. I insist.
KANE
(TO WILLIAM, WITH MOCK RESIGNATION, AS HE FILLS THOMAS’ GLASS)
Do I remember correctly then, William? You said it was right for the just man to injure bad men and enemies?
(WILLIAM NODS)
Well, let us take horses. We’ve had an injured horse, haven’t we. And when horses are injured, do they become better or worse?
WILLIAM
Worse.
KANE
Worse in the qualities, the virtues of horses? Not, say, of dogs?
WILLIAM
Horses, of course.
KANE
But injured dogs are worse, then, are worse in their qualities as dogs, are they? And what about men? Aren’t they worse in terms of human virtue when they’re injured? And isn’t justice a human virtue? Then, my young friend, if men are injured, aren’t they made unjust?
(WILLIAM NODS, HALF SMILING)
All right, we’ll take horses again, the art of horsemanship. Can the horseman use his art to make others bad horsemen?
WILLIAM
No . . .
KANE
And can the just use justice to make men unjust? Can the good use virtue to make men bad? Any more than heat can produce cold? or drought moisture?
(WILLIAM SHAKES HIS HEAD)
Then if the good cannot injure, and the just is good, it isn’t the work of the just man to injure anyone, is it, friend or not. No, that’s the work of the unjust man.
—See now right there where all that almost sounds familiar, that’s what happens. Like I said, you take a song now, take that song about, full moon and empty arms . . .
—Stop singing! Of course, it’s that Rachmaninoff piano concerto obviously they lifted it, the way they plundered Chopin for I’m, always chasing . . .
—Don’t need to sing it for me Oscar, see what I’m saying is where maybe you can’t protect an idea, what you can protect is the expression, your original artistic expression of this idea in these characters, what they do, how they talk, but you try to prove they stole all that from your play it doesn’t exactly sound like what you hear these days in the movies.
—It’s not teeming with obscenities if that’s what you mean.
—I just mean for instance right there where they were talking about justice, they . . .
—Right there where they were talking about justice, Mister Basie, happens to be some of the greatest dialogue in the history of western civilization. That passage, the whole scene is from the first book of Plato’s Republic that’s why it sounds familiar. You’re supposed to recognize it because it’s, what’s the matter.
—That’s good to know.
—What do you mean now it’s good to know, what are you shaking your head for.
A match flared and died in an aimless cloud of smoke. —I mean maybe that’s something not to get into if you try to go ahead with this, go pointing around at Fitzhugh and your Plato there they go ahead and claim fair use once they establish this whole story idea was in the public domain, show that clipping you read where the . . .
—We just settled that didn’t we? You’re telling me that two or three years ago this Kiester happened to see it in the Gastonia Sentinel for December third, nineteen hundred and thirty thought it would make a good movie?
—Need to prove it.
—Fine yes, I’d like to see them try to prove it.
—You. You do, need to prove he didn’t.
—Well that’s absurd. It’s obvious isn’t it?
—Not to the law Oscar. What the law’s all about.
—All right then listen. Get hold of their records, subpoena their records or whatever you do, prove right there that they came up with this based on a true story ad at the last minute just to cut me off at the pass? that they got it from these cheap stories about my father in the yellow dog press down there trying to poison the atmosphere over the appeal in this Szyrk case? Any court could see that.
—Never tell what any court will see. They granted the appeal didn’t they? overturned his decision?
—What? When. I didn’t . . .
—Got him for error before some new judge on the Third Circuit down there, I thought you’d know about it from your father.
—Well not, we’re not in very close touch but, but that’s just what I’ve been saying isn’t it? All of it down there, it’s nothing but mean dirty politics, twist anything around to damage him because he’s a damn yankee they’re still living in the Reconstruction, you show one spark of civilized intelligence and . . .
—What I saw it all looks pretty legal, struck down his summary judgment where there’s still triable issues of fact. Some mixup over a clouded title to the land where Szyrk put up his Cyclone Seven, threw in the court’s failure to cite the Virginia statutes in his citations even got some of the locals there recanting on their interrogatories, claim they were tricked by the fancy language where Szyrk claims his sculpture is site specific for the moral torpor and spiritual vacuity of the place the only words they got hold of were moral and spiritual, thought it was all some big tribute.
—Just what I’ve been saying? Exemplars of our moral and spiritual values they’ve never heard the word torpor and the only time they’ve heard vacuum is a vacuum cleaner, so stupidity triumphs and the law celebrates it?
—Wouldn’t be the first time would it. Take Szyrk naming this James B kid as a defendant now you’ve got the two of them joining up to sue these toymakers over this Free Spot game, James B suing over these Spot dolls and Szyrk suing over these T shirts and tinny souvenirs of his sculpture claims it’s a protected statement, dog lovers suing all of them over animal rights while they’re trying to find somebody in California who keeps sending Spot dog candy with ground glass in it, got a lot on their plate down there.
—It’s got nothing to do with this crazy Szyrk anyhow, you’ve seen that monstrosity he calls a sculpture? Just their way of staining my father’s judicial record, a good thing he’s out of it.
—May not be if they send it back to him for a jury trial. Why this Szyrk didn’t plead his First Amendment rights as a protected statement right from the start’s how I would have handled it.
—Well why don’t you then. Handle it. Call them up and tell them you’ll handle it, or maybe you don’t want to. Maybe you wouldn’t want to walk into a courtroom down there.
—If I thought that way Oscar I’d still be out behind a plough, more likely up front pulling one. Nothing please me better but I’ve got a lot on my plate too and I’ll tell you one thing. He’s got a way better case than you do here. He could shit on a shingle and call it a protected statement under the First Amendment, you can’t find that letter rejecting your play you don’t even know who you sent it to. You go and serve a complaint on this Kiester they’ll respond with an answer and motion to dismiss and they’ll probably get it. If they don’t and you have to subpoena their records they come after yours too and that means that letter and all that doesn’t even come till the discovery process, depositions, documents, interrogatories all the rest of it, motions for summary judgment if that’s denied you get ready for your pretrial conference maybe get a settlement. If you don’t you go to trial, you lose there and you go to appeal spending your money every step, every step you take, disbursements, stenographers, transcripts, all that plus your legal fees I’d just hate to see it, case like this where it looks like you’ve hardly got one I’d just hate to see you laying out money like that even if you’ve got it, like it looks like you do.
—Yes well I thought though, these legal fees I thought maybe we can work something out. I mean Harry said he’d talk to Mister Lepidus he knew him in law school and he thought, I thought maybe we could, that we might work something out.
—You better talk to him, find it’s all pretty cut and dried though. See they have what they call these billable hours where an associate like me, I have to turn in two thousand of them a year, that goes to the firm, comes out of your pocket and out of my hide. That’s the way it works.
—Oh. Well do you think, I mean how much an hour would you think . . .
—Better talk to him, say he’s a friend of your cousin’s there but see that’s if we take the case and like I say, so far I can’t frankly see recommending it.
—Yes well, yes maybe postponing it would be a good idea wouldn’t it, let the movie run in the theatres while their profits pile up and then sue them and the theatres and distributors and advertisers all of them sue all of them, that way we’d get . . .
—Try that and they’ll get you on laches first cat out of the bag.
—Oh. Well what, Harry warned me about laches but what . . .
—That’s where you do exactly what you’re saying here, what they call sleeping on your rights even if it’s plain negligence, leges vigilantibus and the rest of it. The laws aid the vigilant, you hold back like that and give them grounds for laches you’re out of the ball game before it hardly starts.
—Oh. I see what you mean yes but I thought, these legal fees I was thinking once we break through this No Fault nonsense and get down to the damages for the pain and suffering in this accident case and my scar, my academic career and the whole lecture circuit where I, what are you doing . . .
—Just show you something.
—But you, why are you taking off your shirt what . . .
—Not taking it off, just show you something here.
—God!
—Collar bone right down to the groin, how’s that. See if I was this male model or some ballet dancer there goes my living, see what I mean? I mean maybe you haven’t got the greatest case there either.
—I, yes I see what you mean but I, but this case it’s all on a contingency basis so even if I . . .
—Tell you what I’ll do. I’ll go see the movie and you give me a copy of the play, read it on my own time I just got kind of interested in it and if . . .
—But this is my only copy, this and the one in the sealed envelope I can’t . . .
—No, you keep that like it is then. I’ll go see the movie for the hell of it and that letter, you call me up if you find that rejection letter maybe we can still get someplace.
—Yes wait, wait your shirt’s not tucked in . . . squeezing the horn, —she can let you out through the front.
—I’ll find it. Sounded like a car pulling up out there. Hope you’re feeling better.
—Yes and thanks Mister Basie, thanks for coming out here.
—You’ll get the bill.
A cry pierced the hall —Eeeeeeee! a glass door slammed, the clatter of heels and then —Who was that!
—I
—When I saw him I thought you were being robbed. Then I heard your little horn, are you okay Oscar?
—Yes but what are you doing here? You said you had all this shopping and something so awful you can’t even tell me running around buying shoes and dresses what . . .
—Well look at me! Can you just look at me? My hair’s a mess I know it, you don’t have a comb do you you never have a comb and I broke a nail trying to open the window this morning, the way you sounded on the phone you probably think I just came to see you to get some money you always look so uncomfortable whenever it’s mentioned the way your lips get real tight the way you’re looking at me now because you hardly ever look at me when I’ve got any clothes on and look at them, I can’t go to the funeral like this can I? All I’ve got are these tight skirts and blouses in these bright colours I don’t even have shoes to go with this black dress that I just . . .
—To what funeral!
—It’s Bobbie! Didn’t I tell you it’s always Bobbie?
—God. What, look there are tissues right there by the lamp here, sit down and tell me about it but, ow! my leg . . .
—It’s like a matte jersey only they have to let the skirt down with this real low cut V neck but I can pin it with that bunny rabbit pin you gave me that time when we went to that battlefield place where the motel had that bed with the magic fingers and you wanted me to, are you even listening to me?
—Will you just tell me what happened?
—Don’t you even remember? where the bed kept jiggling and . . .
—To Bobbie! What happened!
—I told you didn’t I? that he got this Porsche? I don’t know what to do. Did you eat yet? All I had was some coffee I’m starved, maybe it’s something else feel right here, that lump? No inside, you can’t feel through my clothes, did it get any bigger since last time? No, harder . . .