Sidney Brackman took a long while getting up from his chair and then moving past Constantine and around the plaintiff's table and into the aisle, where he walked slowly to the front of the courtroom. He turned to look first at Willow, and then at Genitori, and then he looked up at McIntyre and said, "Your Honor, I have been practicing law for twenty-two years now, but there's always something new to learn, I guess. Mr. Willow pointed out to me today, just a few minutes ago, that it was my duty as a lawyer to prevent a witness from giving testimony while he was on the stand under oath. Mr. Willow seems to feel that I permitted testimony which was at best questionable, but I would like to say that Mr. Constantine was never asked about preview performances at any time during the pretrial examinations. I can assure Mr. Willow that had the question been asked, it would have been answered honestly, the same way Mr. Constantine has answered every question put to him since this suit began. If Mr. Willow did not think to ask about any performances other than those on Broadway, I do not see why his oversight should then become a reflection on my integrity."
"I assure you, Mr. Brackman, that your integrity is unquestioned," McIntyre said.
"Thank you, your Honor. Thank you, and forgive me for taking the Court's time to clear up this seemingly insignificant matter, but it was important to me."
"I understand."
"Thank you. Mr. Willow has also commented on the scarcity of claimed similarities between Catchpole and The Paper Dragon, pointing out to your Honor that most plagiarism cases will have two hundred, or three hundred, or even four hundred claimed similarities. He also stated that most of these cases were lost by the plaintiff, and I would like to suggest that it was the very weight of the similarities that helped to defeat these claims. When there are so many, your Honor, when every word and every comma becomes a matter for debate, well, obviously the plaintiff is stretching the truth, obviously he is predicating much of his case on sheer imagination. We have not done that here, your Honor. We have claimed only similarities that are plain for all to see. Some of them are less important than others, yes, but they are all pertinent. They are all pertinent because they show that there was copying, and without copying there can be no charge of plagiarism."
"Excuse me one moment, Mr. Brackman," McIntyre said, "but is it your belief that Mr. Driscoll saw this play?"
"Your Honor, I know that Mr. Driscoll is now a highly respected writer, and I know that he has been acclaimed as a literary phenomenon, and I know that his novel is still being dissected in the literary journals and, for all I know, being taught in colleges and universities all across these United States of ours. But, your Honor, he was not highly respected before he wrote The Paper Dragon, he was not being lionized, he was in fact totally unknown. By his own admission, he had written only a few unpublished short stories before writing the novel, and he has written nothing since. The only reason for his reputation now, in fact, is that he stole another man's work."
"Mr. Brackman, do you think he saw the play?"
"I think he was in possession of it."
"Of what? The play?"
"I think he was in possession of the plaintiff's play, yes."
"Before he wrote his novel?"
"Before he wrote his novel, and perhaps while he was writing his novel."
"I see."
"Your Honor, the evidence cannot show otherwise. Mr. Willow took the time and trouble to amass a great deluge of trivia, a landslide of outlines and letters and maps and what-have-you, but what do these prove? If we believe Mr. Driscoll, then indeed all these collected scraps of paper were the result of personal work habits, and show that he was a diligent man with perhaps an eye on future historians, keeping as it were his own personal time capsule for posterity. But if we do not believe Mr. Driscoll, then he was only a clever thief seeking to hide his plagiarism by constructing a supporting body of evidence to substantiate a claim of independent creation."
"I don't wish to interrupt your argument further," McIntyre said, "but I would still like to know whether it is your belief that Mr. Driscoll actually saw this play. A minute ago—"
"I don't understand, your Honor."
"Well, you said you thought he possessed a copy of it."
"Yes."
"Do you think he saw it as well?"
"Do you mean in performance?"
"Yes," McIntyre said. "Do you think he saw the play on the stage?"
"I don't know."
"Very well."
"He says he did not, your Honor, he has testified to that. He has also testified that he never saw a copy of this play until, when was it, several weeks ago, when Mr. Willow gave him one to read. How then can we explain these similarities — and there are, if your Honor please, exactly twenty-six of them, plus of course the six that were found to exist only between the play and the movie. How do we explain twenty-six concrete and specific similarities between the play Catchpole and the novel The Paper Dragon unless Mr. Driscoll had access to this play, unless—"
"Mr. Brackman," McIntyre interrupted, "you said earlier that some of these similarities were less important than others. I would—"
"But all pertinent, your Honor. We've set them forth in our brief, and I think we've covered them extensively over the past several days. I certainly don't want to weary you with them again, unless you wish me to do so."
"I merely wanted to know which ones you consider important."
"They are all important, your Honor, they are all pertinent, including those we concede to be minor. For example, your Honor, we claim that there is a similarity of plot, and then we go on to show exactly how and where the plots are similar, even identical in some places. Well, Mr. Willow in his summation said that a plot cannot be copyrighted, and yet one of the cases Mr. Genitori cites in his brief—"
"Yes, Mr. Brackman, I don't think we need belabor the point. If two works have identical plots, even though 'plot' per se is not copyrightable, this would certainly be evidence of copying. Don't you agree, Mr. Willow?"
"Yes, your Honor, if the plots were identical."
"Or significantly similar," McIntyre said, and then paused. "Or inexplicably so."
"Yes, your Honor," Willow said.
"So let's not belabor the point."
"By the same token, your Honor," Brackman said, "my opponent has gone to great lengths to show that many of the incidents and events and characters, much of the language, the settings and so forth used in the novel are there only because it happens to be a novel about the United States Army. He says, in effect, that any novel about the United States Army, any play about the United States Army would necessarily have sergeants in it, or obscenity, or barracks, or what have you. All right, we concede this. Where there's an army, there are necessarily men in uniform, and there are rifles, and battlefields, and enemy soldiers, and wounded men, and nurses, all right, let us say all of these things are in the public domain. Nonetheless, your Honor, even material in the public domain may be so combined or compiled as to be copyrightable."