Frolic of His Own (57 page)

—Well if you could have heard him out there Harry, I mean he's certainly got his act together if that's what you . . .

—May think so, he may think so but I don't think he's ever handled a case before the Second Circuit Appeals Court. Probably march in there with a twenty page brief ready to read every word of his brilliant legal analysis to these three old black robes sitting up there looking down at him and I mean looking down, he's standing at a lectern down in the well and they're up in their highbacked thrones behind this polished mahogany sort of horseshoe courteous, relaxed, really forbidding, almost informal that's what's formidable about it. He starts off with something like in order to fully understand this case one of them cuts him right off. We're familiar with the case, Counsel, is there anything you wish to add to what is contained in your brief? Your honour, if I may be allowed to outline the facts . . . I believe we understand the facts, Counsel. If it please the court, the public interest in the far reaching cultural implications of this case and Bone comes right in, I remind Counsel that we are here to serve the public interest. Your case is thus and so, goes right to the heart of it, sums up the argument in a couple of sentences and asks counsel to sit down, poor bastard's got himself up for a real performance and the place, the whole atmosphere's like a theatre but they're not there for a matinee and his whole star turn goes out the window, a few more questions and down comes the curtain.

—Well my God Harry don't tell, don't get Oscar's hopes up, I mean this whole brittle shell he's put together for who he thinks he is now but suddenly I look through that mangy beard and cigar smoke and see the face of the little boy down there by the pond that day with the little canoe he'd made, he'd spent days at it stripping the bark off a beautiful white birch that stood there and Father, Father looking at it without a word like some terrible open wound, looking at the canoe sunk in the mud and he had the poor tree cut down the next day without a word, gone without a trace he never mentioned it again but he never let Oscar forget it, just
with a look, it was all too heartbreaking and now he's done it again. Oscar's done it again setting himself up with these fantasies of producing his play when he wins this appeal and if he loses, this whole desperate pose as the gentleman poet, the last civilized man I mean he's just really so different from who he thinks he is and God only knows, when he loses . . .

—Not when he loses, Christina. It's when this who he thinks he is loses, what the whole thing's all about isn't it? He goes off on a frolic of his own writes a play and expects the world to roll out the carpet for . . .

—A frolic! Where in God's name did you get that, I mean have you ever seen anyone more deadly serious than . . .

—Just a phrase, comes up sometimes in cases of imputed negligence, the servant gets injured or injures somebody else on the job when he's not doing what he's hired for, not performing any duty owing to the master, voluntarily undertakes some activity outside the scope of his employment like . . .

—Harry?

—Like an office worker puts out an eye shooting paperclips with a rubberband they say he's on a frolic of his own, no intention of advancing his employer's business his employer's not liable, there may be a case if the employer knew about this horseplay and hadn't tried to . . .

—Harry! My God I'm not talking about shooting paperclips, I mean can't you say anything without writing a whole legal brief to go with it? and a swallow from her glass broke her off coughing —he, he spent a year, two years writing it and . . .

—All right, look. Look all I meant was Oscar takes off and writes a longwinded play about his grandfather he wasn't hired to do it, about somebody seeking justice nobody paid him to did they? And it gets him nowhere, does he keep at it? write another play? and another? No, no he splurges this one time and then lets it devour him year after year like this little birch canoe he made because it's safer to blame the world out there for rejecting who he thought he was, for all the work he's put in on a play that's not really about justice in the first place, not about injustice it's about resentment, it's resentment right from the start like his little canoe sunk in the mud and it poisons everything, blaming those faceless ogres out there instead of looking inside at the ogres we don't want to see, don't dare see our own hand in it, who we really are, and if he wins? pausing again to reach for the bottle, —if who he thinks he is wins on this appeal? What you see in the headlines out of Washington every day isn't it? caught redhanded destroying evidence, obstructing justice, committing perjury off on frolics of their own and when they get off on some technicality, everybody knows they're guilty but there's not enough there to
prove it so they can proclaim they've been proved innocent, wrap themselves in the flag and they're heroes because now they believe it themselves, because the law has vindicated who they think they are like saying where would Christianity be today if Jesus had been given ten to twenty with time off for good behaviour, and if he wins? If Oscar wins and this whole cockeyed version of who he thinks he is is vindicated because that's what the law allows?

—I mean, but I mean isn't that really what the law is all about? and she straightened up as though to disown the slur in her voice setting her glass down emptied —where it's all laws, and laws, and everything's laws and he's done something nobody's told him to, nobody hired him to and gone off on a frolic of his own I mean think about it Harry. Isn't that really what the artist is finally all about?

—I've thought about it he muttered almost to himself, standing there staring at the drink swirling slowly in his hand like the words lost under his breath —I've thought a lot about it, melting away like the fixed resolve that had always seemed to map the hard features of his face, looking up at her. —Come to bed.

OPINION

Before Wakefield, Schlotz and Bone, Circuit Judges

BONE, C. J.

Oscar L Crease ('Crease') filed his complaint against Erebus Entertainment, Inc. (‘Erebus'), its Chief Executive Officer Ben B F Leva OB P) and Jonathan Livingston Siegal a/k/a Constantine Kiester ('Kiester') et al. in the United States District Court for the Southern District of New York for damages, injunctive and other relief. The action arises out of alleged infringements upon the dramatic presentation Once at Antietam written by plaintiff, a historian and fledgling playwright, for the stage or for television adaptation. The defendants deny infringement but admit production and distribution of the alleged infringing motion picture entitled The Blood in the Red White and Blue.

As provided in 28 U.S.C. 1400 (a), civil actions ‘arising under any Act of Congress relating to copyrights . . . may be instituted in the district in which the defendant or his agent resides or may be found' plaintiff's summons and complaint were served on defendant's general counsel designated as agent for service in New York City in this judicial district where they do business and ‘where the claim arose' (U.S.C. 1391 (a)), no claim of lack of
venue having been asserted the objection to improper venue was waived. Before the pretrial conference stage in these proceedings was reached, defendant filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or in the alternative for summary judgment under Rule 56, submitting therewith certain affidavits and collateral supporting documents outside the pleadings affirming that no material issues of fact were in dispute and that given these undisputed facts one party was entitled to judgment on the law wherewith the district judge construed defendant's motion as one for summary judgment and so held. The plaintiff appeals.

An understanding of the issue requires some description of what was in the public domain, as well as of the play and the motion picture. As attested in exhibits submitted by the parties consisting in the main of journalistic and similar accounts published subsequent to the actual events, one Thomas Crease, a Carolina resident at the time the Civil War began, enlisted as a private in the Confederate army and fought in the battle at Ball's Bluff, where he was slightly wounded. He was intestate heir to valuable coal properties in Pennsylvania, and upon learning that these were in danger of confiscation by the Federal government, he received permission from the Confederate authorities to go north to protect his interests which he did, hiring a substitute to take his place in the army, a not uncommon practice. Complications arising in the North obliged him to provide a substitute to serve in the Union army as well, and both were killed at ‘bloody Antietam.' In later years Crease looked up the details of that battle and, discovering that the regiments in which both were serving had confronted each other in ‘the Bloody Lane,' became increasingly haunted by the conviction that the two had killed each other and that he was thus in some fanciful way a walking suicide, to which some ascribed his occasionally erratic behaviour in his late years as a prominent jurist. For his play the author used only this merest skeleton; the incidents, the characters, the mise en scène, the sequence of events and the events themselves all have been changed, embellished, lifted naked from classical sources or cut from whole cloth.

The play opens with a scene between the protagonist, who is named Thomas, and his mother, a long suffering, Bible ridden husk of a woman. He has just returned home from heroic action on the Confederate side in the battle at Ball's Bluff, to the news that his estranged uncle, a Northern coal baron, has died intestate, leaving him as sole living relative the heir to substantial mine holdings in Pennsylvania. It appears that some years before, with the death of his father in a minor embassy post in France, Thomas had returned to America to confront this same uncle, his father's brother, with the bitter charge, conveyed by his mother, of
having cheated his father of his due a generation before, and in a humiliating scene has settled the matter for cash barely sufficient to launch a hardscrabble existence on a rundown Carolina farm his uncle had taken on a bad debt. The farm adjoins a large working plantation called Quantness where, mistaking it for his property settlement on his initial horse and buggy
arrival ‘
driving up as if he owned the place,' further humiliation lay in store upon being directed on by a black house slave to the wretched dwelling where this present scene with his mother takes place. Here they have hammered out an existence, labouring side by side with the young slave John Israel, his mothers Biblical protégé, till the day of his chance meeting with Giulielma, the lonely daughter of the Quantness plantation, a further humiliation given his humble circumstances which nonetheless has blossomed into romance and marriage gaining him a foothold in the Quantness household itself. This whole scene has been presented through dialogue, and concludes with Thomas' consternation upon learning that John Israel has ‘run off' during his absence, and his defiant resolution to go north and claim what he believes to be justly and rightfully his.

In the next scene we follow Thomas to the halls of Quantness where his father in law, a pompous Confederate major, is showing about a mysterious visitor, Mr Kane, amidst disquisitions on the war, the cotton market abroad, the French position and the Union blockade, slavery, Aristotle and other exalted topics. It is clear that Thomas' abrupt inheritance, plus his recent battlefield exploits, have greatly enhanced his value as a son in law, particularly when we learn in an aside that shares in Quantness, dependent on the cotton crop, have fallen into the hands of Northern bankers, and he may be the means to redeem them. This contrasts sharply with the Major's condescending treatment of his own son William, kept home from the war by his youth and a marked limp, whose hero worship of his brother in law anticipates a subterfuge by which he will, unbeknownst to Thomas, go up to the war in his place. Following a tender scene between Thomas and Giulielma in which he pleads with her to accompany him north, a fall from a horse leads somewhat inexplicably into a heated discussion of justice between Thomas, William and Mr Kane employing patches of Platonic dialogue lifted directly from Book I of the Republic, interspersed with unattributed views of Albert Camus on total justice and of Rousseau on absolute freedom, and Thomas departs.

The second act is set in the North where Thomas has arrived to take over the mining properties and the problems they present. His foil is a coarse, jovially venal man named Bagby, his uncle's mine manager and confidante, for whom no stratagem for self advancement is too petty or
too grand, and who ridicules Thomas' efforts to deal fairly with the striking miners. A dramatic night scene in which Thomas is ‘mugged' is followed by humorous scenes depicting Bagby's recruiting and profiteering activities, when Mr Kane appears unexpectedly with news of Confederate reverses and the poor condition of their troops, of the Major taken prisoner and of William gone up to fight (though unaware as Thomas' substitute), and that the large cotton shipment whose proceeds were to redeem the Northern held shares in Quantness has been impounded by the French against payment for a ram being built there to break the Union blockade. As the Union army announces conscription, Thomas is confronted with the arrest of the young man who had mugged him, a casualty of the mines, and amidst lofty declarations of refusal to surrender his destiny to chance, and a further dose of Plato on justice versus the appearance of justice (Republic, Book II at 359) this time delivered in Mr Bagby's disreputable brogue espousing the latter position, Thomas sends the young man up in his place and departs for France once more in pursuit of justice. The act concludes with a highly theatric interlude featuring Mr Bagby musing over the dead on the edge of the Antietam battlefield as night falls.

The rest of the play is of less consequence in the matter at bar. The war ended, Mr Bagby has acquired the controlling shares in Quantness and is now an official in Washington where Thomas, having been interned on the ram Sphynx at sea all this time, returns seeking damages from the government. Bagby's price is his signing papers incriminating Mr Kane who is nearby awaiting execution as a spy; and the prison scene that follows not merely mirrors the last days of Socrates, but lifts the Crito almost bodily intact. Refusing Bagby's condition, Thomas ventures back to Quantness where having learned of the death of his two substitutes, one of them William, in the bloodiest single day of the war, he realizes he has been used by those around him in their efforts to fulfill their own destinies, thereby robbing him of his own, and the play's final scene claws for the heights of Greek tragedy as envisaged in the words of C M Bowra (Attic Tragedy at 101) ‘because in his fight against insuperable odds he shows all his nobility of character and is nonetheless defeated.'