The Paper Dragon (19 page)

"Is it also true that the head of API's story department in New York was invited to the opening night performance of
Catchpole
on October 14, 1947?"

"I think so, yes."

"Why was he invited?"

"
All
the movie people were invited. We were trying for a movie sale, of course. That's standard procedure."

"Was an offer made after opening night?"

"No."

"Did you see the reviews of your play
Catchpole
after it opened?"

"I did."

"I ask you to look at this review from the
New York Times
of October 15, 1947, and tell me whether it is the one that appeared after the opening of your play." Willow turned to McIntyre. "Your Honor, Mr. Brackman has already agreed that we would not have to prove publication, which would be a simple matter."

"Do you concede publication, Mr. Brackman?" McIntyre asked.

"Yes, of any material that appeared in a magazine or newspaper."

"Please answer the question then, Mr. Constantine."

"Yes, that's the
New York Times
review of my play," Arthur said.

"I would like to offer it in evidence," Willow said.

"I object to it as irrelevant, your Honor. Whether it praises or faults Mr. Constantine's play, it hardly pertains to the matter of plagiarism."

"Why are you offering it, Mr. Willow?"

"Your Honor, the critical appraisal of
Catchpole
is of enormous relevance to this case. Mr. Driscoll is said to have plagiarized the play, but the only support for this allegation is a purported similarity between the two works. I ask now why anyone would
wish
to steal a play that had already been rejected by each and every major motion picture studio, that had been greeted with universally bad notices, and that ran for only twelve days on Broadway."

"Your Honor," Brackman said, "the law books already show that it is the relatively unknown work which most often becomes the target of the plagiarist."

"We could argue that all day, your Honor…"

"Yes, I'm sure we could," McIntyre said.

"… and still not come to an agreement," Willow continued. "
Abie's Irish Rose
was certainly highly successful, and I'm sure my opponent recognizes it as one of the most prominent plagiarism cases. And whereas there are examples of plagiarism from more obscure properties, I still feel that critical and popular acceptance of a work is relevant to the issue here."

"Mr. Constantine has already testified that the play ran only twelve days," McIntyre said. "This does not indicate, to me at any rate, that it was a hit. Why you would wish to offer additional evidence to that point is beyond me, Mr. Willow. I will not admit it."

"Will you allow it to be marked for identification, your Honor?"

"I will."

"Mark it 'Defendants' Exhibit A for identification,' " the clerk said.

"May we also mark for identification the review that appeared in the New York
Herald Tribune
on October 15, 1947?"

"Is this another review of
Catchpole
?"

"Yes, your Honor. Your objection is only to relevance, is it not?"

"It is not admissable."

"I made the offer first in evidence, so that the record will be clear."

"The record will note your exception."

"Mark it 'Defendants' Exhibit B for identification,' n the clerk said.

"Thank you," Willow said. "Mr. Constantine, when did you begin work on your play
Catchpole
?"

"When I got out of the Army. That was July of 1946."

"And when was the play completed?"

"About three or four months later. Toward the end of the year."

"November or December, would you say?"

"Yes. November, I think it was."

"When did you begin attempting to find a producer for it?"

"In January of 1947. There was no sense trying to do anything during the holidays. I had the play mimeographed shortly before Christmas, and I began sending it around after New Year's."

"Is this customary procedure?"

"Sending the play to producers, do you mean?"

"No. Having copies mimeographed."

"Some authors do, others don't. It depends on how many people you want to reach. And also whether you can afford to have the work done."

"How many people did you want to reach, Mr. Constantine?"

"As many as possible. I wanted my play to be produced."

"How many copies were mimeographed?"

"A hundred, a hundred and fifty, I don't remember the exact amount."

"And I take it the result of all this was that you succeeded in getting a producer?"

"That's right."

"So it would seem to have been a good procedure," Willow said.

"It worked for me."

"To get back, you say you began work on
Catchpole
shortly after you were discharged from the United States Army. Would you say that your Army experience was still fresh in your mind when you began writing?"

"I would say so, yes."

"Army routine, Army terminology, Army regulations?"

"Yes, all of it."

"As well as the language used by soldiers, of course."

"Of course."

"In your military experience, Mr. Constantine, did you meet many men who used obscene language?"

"I met some."

"Who used obscene language such as Mr. Driscoll uses in his novel, and such as you more discreetly use in your play?"

"Yes, I met some. Mostly uneducated men."

"There
were
some of these in the Army."

"Is that a question?"

"Yes, it's a question."

"Yes, there were uneducated men who used obscene language."

"Do you think they were rarities?"

"No."

"They were commonplace?"

"They were to be found everywhere in the Army."

"During World War II?"

"Yes, and during the Korean War also, I would imagine. That's where you're leading, isn't it?"

"Do you feel, Mr. Constantine, that the character named Franklin in your play — the man who is addicted to the use of obscene language — do you feel he is a unique creation?"

"I do."

"You feel that a soldier addicted to the use of obscene language is unique?"

"Franklin swears in a specific manner. He uses a specific word as verb, noun, adjective, adverb. I think we know the word I mean."

"Yes, I'm sure we do."

"I changed it to the word
bug
in my play."

"And you feel that a character who uses this word as verb, noun, adjective, and so on is a unique creation of your own, is that correct?"

"That's correct."

"And not simply a valid fictional representation of a commonplace individual who is to be found wherever there are armies or Army posts or barracks?"

"I consider him unique."

"Would it surprise you, Mr. Constantine, to learn that in a play titled
The Eve of St. Mark
… do you know the play?"

"Yes, I know it."

"It's by Maxwell Anderson, he's won several awards for playwriting, including the Drama Critics Circle Award and the Pulitzer Prize. I think you may know of him."

"Yes, I know of Maxwell Anderson."

"In his play
The Eve of St. Mark
there is a sergeant named Ruby, who is addicted to the use of the word
ruttin'
…"

"Rotten?"

"No,
ruttin'
. R-U-T-T-I-N-apostrophe, very similar to your use of the words
bug
or
bugging
. Does that surprise you, Mr. Constantine?"

"I'm not that familiar with the play."

"It opened at the Cort Theater in New York on October 7, 1942, five years before
Catchpole
. It ran until June 26th of the following year, and was later made into a motion picture. Do you still maintain that your character Franklin is a unique creation?"

"I do. He is unique in my play."

"But not in someone else's play? He is unique only in
your
play?"

"I had not seen Mr. Anderson's play, nor was I aware of the sergeant in it. Besides, the word
bugging
is not the word
ruttin'
."

"Nor are either of them the actual word Mr. Driscoll uses, isn't that so?"

"It's so, but the intent is the same."

"The same as what?"

"The same as using the word
bug
, which I had to use for the stage."

"But not the same as the word
ruttin'
, which Mr. Anderson had to use for the stage?"

"I merely said the words
bugging
and
ruttin'
were not identical."

"But they are similar?"

"Yes, they are similar."

"In intent?"

"Yes, in intent, too, I suppose. But…"

"Yet you still maintain that your character's use of obscenity is unique?"

"It is unique, yes."

"Thank you. Mr. Constantine, what procedure did you follow in submitting your play for production?"

"I usually mailed it out."

"To whom?"

"To anyone I thought might be interested. This was my first play, and I was new at this sort of thing. I didn't have an agent at the time. I sent it to anyone I thought might help me in getting it produced."

"And that included?"

"What?"

"To whom exactly did you send it, Mr. Constantine?"

"Producers, agents, investors, anyone interested in the theater…" Arthur's voice trailed. It had occured to him that this was the second time Willow had brought up the matter of submission, and he wondered now where he was leading. He sensed a trap. Every intuitive power he possessed told him that Willow had picked up the scent of something the first time around, and was now tracking it down. But Arthur did not know what. He found himself suddenly alert, staring intently at Willow, leaning forward in the witness chair, waiting for the trap to make itself more evident so that he could avoid it.

"Did you send a copy to Mr. Hollis Marks?"

"I don't know any Hollis Marks."

"He is an agent. Did you send the play to him?"

"No. Oh, is he Driscoll's agent?" Arthur asked suddenly.

"Yes, that's right."

"No. I did not send a copy of the play to Driscoll's agent. But there were enough copies around the city. Driscoll could have easily seen one."

"Yes, you testified that there had been a hundred or a hundred and fifty copies mimeographed, didn't you?"

"That's right."

"Who mimeographed these copies, Mr. Constantine?"

"York Duplicating."

"Here in Manhattan?"

"Yes."

"Was the number a hundred? Or a hundred and fifty? Which?"

"A hundred and fifty, I believe."

"And you began mailing these out in January of 1947?"

"Yes."

"To producers, agents, investors, and anyone interested in the theater?"

"Yes."

"Did you deliver any of these manuscripts personally?

"Some of them. Most of them were sent through the mail."

"With covering letters?"

"Yes, of course."

"Did you ask for their return?"

"I don't remember."

"Did you enclose a stamped, self-addressed envelope for their return?"

"No."

"Do you know of anyone at Mitchell-Campbell who saw a copy of the play at the time you were distributing it?"

"No, I do not."

"But there were hundreds of copies distributed, weren't there?"

"A hundred and fifty."

"
All
of the mimeographed copies were distributed?"

"I don't know. I assume most of them were. Let's say somewhere over a hundred copies were being sent around to various people."

"And yet you have no knowledge that either James Driscoll or anyone at Mitchell-Campbell saw a copy of your play at that time."

"No direct knowledge, no."

"Your entire allegation is based on the fact that you believe the works are similar?"

"They're virtually parallel."

"Since you have the script in your hand, Mr. Constantine, I wonder if you would mind pointing out to me the line or lines that label the Army division as the 105th."

"It was not labeled in a line."

"Then how exactly was it labeled?"

"In a stage direction."

"Would you point this out to me, please?"

"Certainly." Arthur began leafing through the manuscript. He was beginning to think he had been wrong, that no trap had been conceived or intended.

"Here it is," he said. "The top of the second act, page 2—i—1. It describes the command post, and it says, 'A battered jeep is parked just outside the headquarters shack. The division insignia hangs over the door to the shack, the number 105 in yellow on a black field.' That's the reference."

"Thank you. Did you see this play in performance, Mr. Constantine?"

"I did."

"Did you see every performance?"

"Every performance."

"Was the insignia a part of the scenery for the play?"

"It was part of the set dressing."

"By which you mean it was affixed to the wall of the headquarters shack."

"The
outside
wall of the shack, yes."

"The number 105 in yellow on a black field."

"Yes."

"Was this your own description of the set?"

"It was."

"Did this description appear in the mimeographed version of the play? The one you sent around for people to read?"

"It did."

"It was not later added? I mean, Mr. Constantine, was the description of the set and its dressing added
after
the play was actually produced?"

"No, it was in the original copies I distributed."

"And the insignia
did
actually appear in the play as it was produced on the New York Stage?"

"Yes, it did. If you want to call our set designer as a witness…"

"I don't think that will be necessary. When you held your preview performances in the Second Avenue loft, Mr. Constantine, the ones to which the college audiences were invited — was the play performed with scenery?"

Arthur hesitated.

"Mr. Constantine, would you answer the question?"

"No. The play was not performed with scenery."

"Is it my understanding, then, that the division insignia was
not
hanging on the wall of the headquarters shack during the preview performances in the Second Avenue loft?"

"It was not."

"Was there indeed a headquarters shack at
all
in the Second Avenue loft."

"There was not."

"The play was presented on a bare stage?"

"With furniture."

"Then anyone who had been present at those preview performances could not possibly have seen the number 105 in yellow on a black field."

"That's right," Arthur said.

"In other words, in order for Mr. Driscoll to have seen the number 105, he either had to be present at one of the Broadway performances, or else he had to have a copy of your manuscript. Those are the only two ways in which he could conceivably have known about the number, is that right?"

"Unless someone told him about it."

"Someone who had seen the play on Broadway or read the manuscript?"

"Yes."

"But you have testified that you did not send a copy of the manuscript to Mitchell-Campbell Books?"

"That's right."

"It would have been someone else then, is that it? Someone
not
connected with Mr. Driscoll's publishers?"

"I don't know who it might have been. Copies of the manuscript were floating all over the city. It could have been anyone who read the play, or anyone who saw it. It ran for twelve days. There were matinee performances on some of those days, so we can add…"

"Whoever saw or read the play undoubtedly attached great significance to the number 105."

"I did not say that."

"Do
you
attach great significance to that number, Mr. Constantine?"

"I do."

"Do you feel it is an integral part of your play?"

"I do."

"Even though it appears only briefly in one scene of the play, and then only as part of a background insignia hung to the wall of a shack?"

"It was clearly visible to the audience. Yellow on black is a particularly vibrant color combination."

"But do you feel the number added to the value of your play?"

"It was a part of the play."

"Was it of value?"

"To me it was."

"In what way?"

"It designated the division."

"Was this designation significant?"

"To me it was."

"Would it be significant to anyone else?"

"Apparently it was also significant to Mr. Driscoll."

"Was the number of any significance to the audience?"

"It told the audience what division was involved in the invasion."

"Was this of great importance?"

"I think so."

"How?"

"It was a part of
my
play. It came from
my
mind. It was a numerical designation for a division 
I
invented.
That
is its significance and its importance and its value. It is
mine
, and not another man's."

"You began working on this play of yours in July of 1946…"

"Possibly August."

"… and completed it in November sometime, is that what you said?"

"Yes."

"You then had a hundred and fifty copies mimeographed, and in January of 1947 you began distributing those copies."

"That's right."

"And you distributed well over a hundred of them?"

"A hundred and ten, a hundred and twenty, something like that."

"Mimeographed copies?"

"Yes." Willow had returned again to the mimeographed copies, and now Arthur was certain a trap was being baited. He wondered why Brackman did not object, wondered why Brackman did not rise to give him some clue as to the nature of the trap. He looked at Brackman hopefully, but the man seemed completely unaware that Willow had again returned to the same topic. Couldn't he see that this was a persistent and recurring thread, similar to the thread in
Catchpole
, where Janus is constantly badgering D'Agostino about..

"… to different people?" Willow said.

"I beg your pardon?"

"The question was, Mr. Constantine: Were these hundred and twenty mimeographed copies distributed to different people?"

"Yes, they were."

"Beginning in January of 1947?"

"Yes."

"And ending when?"

"When I found a producer."

"Which was when?"

"May of 1947. May 11th, to be exact, I won't forget that date. That's when the play was optioned by Mr. Frederick Gerard, who eventually produced it later that year."

"You personally arranged for or actually made delivery of one hundred and twenty mimeographed copies of your play between January and May of 1947?"

"Yes, I did."

"Do you believe Mr. Driscoll somehow came across one of these copies at that time?"

"You'll have to ask
him
about that."

"I am asking
you
."

"How would I know whether or not he saw a copy at that time?"

"Mr. Constantine, instead of engaging me in argument, would you please answer my question: Do you believe that Mr. Driscoll saw a copy of your play at that time?"

"He could have, yes."

"Do you think he
did
?"

"It's possible that he did."

"In addition to having seen a performance of your play?"

"Yes, in addition."

"Do you feel he could have successfully plagarized your work after having seen only one performance of the play?"

"Yes."

"That would have been sufficient?"

"Yes. Besides, it ran for twelve days. He could have seen it any number of times."

"He could have been so impressed by it the first time that he ran back to see it again and again, is that it?"

"Ignoring the sarcasm, that is
not
it. I don't know what goes on in Mr. Driscoll's head, either now or in 1947."

"Do you know how old Mr. Driscoll was in 1947?"

"No, I do not."

"He was eighteen."

"I was eighteen when I got drafted into the Army to fight a war," Arthur said.

"Which is commendable, but hardly to the point. Did you go into the Army as an officer, Mr. Constantine?"

"No. I was sent to O.C.S. after my basic training."

"And emerged as a second lieutenant."

"Yes."

"And you were sent to the Pacific in time for the Marshall Islands landings."

"Yes."

"Did your men ever call you 'Loot'?"

"Yes, they did."

"The way they call Mason 'Loot' in your play?"

"No. In my play, they use the word in a derogatory manner. If we're going to get into this again…"

"Into
what
again?"

"Into hastily trained officers, and platoons composed of cross-sections of America, and the prevalence of minority group members, and ninety-day wonders and soldiers who use obscenity, all in an attempt to show that Mr. Driscoll was only following his natural bent, he was only creating a wholly original work of fiction out of common everyday experience, I'm sorry, Mr. Willow, but I don't agree with you, and I see exactly what you're trying to do."

"I am
trying
to ask some questions," Willow said, "if I may be permitted, your Honor."

"Please go on, Mr. Willow. I find nothing objectionable in your line of questioning."

"Your Honor," Brackman said, rising, "Mr. Constantine is not an attorney, though perhaps he did feel Mr. Willow was badgering him."

"I am not aware of any badgering," McIntyre said. "Please go on, Mr. Willow."

"Would you not agree, Mr. Constantine, that the word 'Loot' is a common expression in the United States Army, whether it be used affectionately
or
derogatively?"

"I would agree," Arthur said tightly.

"Your claim, however, is that both in your play and in
The Paper Dragon
, the men use this expression in order to annoy the lieutenant. They use it derogatively. In fact, you pointed out an example of its use in your play, and an example of its use in the novel. Your claim is that they constitute
specific
similarity of language, isn't that so?"