Law and Literature Part 23

This is as close a copy as Shakespeare's description of Cleopatra and her barge. And since the original work is copyrighted, why isn't the parodist an infringer? The usual answer, which is question begging, is that the use the parodist makes of the original is a "fair use" within the meaning of copyright law.38 But many parodies have been held to be copyright infringements, and the Supreme Court has declined to provide authoritative guidance to when parody is a fair use, ruling instead that the issue is to be resolved case by case.39 Parody is best understood in terms of one of its synonyms: it is a "takeoff " on another work, author, or genre. It takes characters, incidents, dialogue, or other aspects of the parodied work(s) and moves on from there to create a new work. Generally there is an incongruity between the borrowed and the new elements, as where the parodist sets about to "grasp the essentials of the style of a given [serious] author or a school of authors, and then proceed[s] to concoct an outlandish episode which is expressed in that style."40 In the words of another literary critic, "The highest kind of parody may be defined as a humorous and aesthetically satisfying composition in prose or verse, usually written without malice, in which, by means of a rigidly controlled distortion, the most striking peculiarities of subject matter and style of a literary work, an author, or a school or type of writing, are exaggerated in such a way as to lead to an implicit value judgment of the original."41 Not all parodies are humorous, however, just as not all are free of malice. The Wind Done Gone (2001) by The fair use defense to copyright infringement is codified at 17 U.S.C. 107, but the codification is in generalities, and the fair use doctrine remains essentially a judicial doctrine.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). See Anastasia P. Winslow, "Rapping on a Revolving Door: An Economic a.n.a.lysis of Parody and Campbell v. Acuff-Rose Music, Inc.," 69 Southern California Law Review 767 (1996).

G. D. Kiremidjian, "The Aesthetics of Parody," 28 Journal of Aesthetics and Art Criticism 231, 235 (1969).

41. J. G. Riewald, "Parody as Criticism," 50 Neophilologus 125, 128129 (1966).

*Alice Randall is an unfunny but pointed parody of Gone with the Wind designed to point up what the parodist considered the racism in that famous novel.42 So in parody there is both a taking from a previous work and an injection of creativity, large or small. Often it is not the copyrighted elements of the parodied work that are copied. This is especially likely if what is being parodied is not a single work but a writer's style, because style is not copyrightable; or an entire genre, since genre is not copyrightable either. Max Beerbohm's splendid parodies of Henry James-"The Mote in the Middle Distance" and "The Guerdon"-would not be within range of an infringement suit. But neither is a t.i.tle copyrightable, nor stock characters, nor standard plots, so a parodist who took only these features from a copyrighted work would not be an infringer either.

If the parodist does take copyrighted elements of the parodied work, it can be argued that he infringes no matter how great his creative input. The combination of copyrighted elements with fresh creative input simply yields a derivative work, and modern copyright law a.s.signs the exclusive right to make and sell derivative works to whoever owns the copyright on the original.It does not matter how much "better"or commercially more valuable the derivative work is. Transaction costs are minimized when all rights over the copyrighted work are concentrated in a single pair of hands. But the fair use doctrine sometimes permits the appropriation of parts of a copyrighted work, and we must consider whether parody should always or sometimes be deemed a fair use.

The idea behind the doctrine is that if a copy of (ordinarily) just a part of a copyrighted work is unlikely to serve as a subst.i.tute for the work in the eyes of consumers, allowing the copying without requiring the copier to obtain the permission of the author of the work will economize on transaction costs without seriously impairing the incentive to create copyrightable work, whereas a rule that allowed copying extensive enough to create a subst.i.tute for the copied work would seriously impair that incentive.

A book review that quotes at length from, or describes in detail, the book being reviewed, and so would be a candidate for an infringement 42. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).

suit were there no concept of fair use, ill.u.s.trates the reason for the privilege. Most book reviews increase the sales of the books reviewed; requiring reviewers to seek copyright licenses would therefore harm authors by reducing the number of reviews because of the bother to reviewers of obtaining copyright licenses. Even unfavorable reviews can stimulate sales when the alternative would be no reviews. Book reviews are free advertising-and especially credible advertising because they are not controlled by the publisher or the author. Their credibility would be undermined if a reviewer needed the author's or publisher's permission to quote from the book.

When a review does reduce a book's sales, it is not because it satisfies the demand for the book-rarely is a book review a close subst.i.tute for the book-but because it identifies flaws in the book and so provides valuable information about it without undermining the rewards for creating worthwhile intellectual property. Not that all books that contain errors are valueless; books can have great weaknesses yet still be worthwhile because of offsetting strengths. But such a book will not be devastated by book reviews that stress its weaknesses; the marketplace in ideas and opinions will produce other reviews that emphasize its strengths.

Unlike book reviews, parodies are not intended to introduce readers to the parodied work. On the contrary, since effective parody requires that the audience have some and often considerable familiarity with the original, works are rarely parodied that are not already well known. The book reviewer has to "steal" from the copyrighted work in order to introduce the work to its audience. The parodist labors under no such necessity, except-a big except-insofar as he must steal in order to have his work recognized as a parody.

It might seem that the function of the fair use privilege in protecting criticism from claims of copyright infringement would extend to parodies because they can be an effective method of ridicule, and ridicule is a form of criticism.43 But parody has been said to be a severely truncated form of criticism because of its focus on idiosyncrasy: "Parody naturally tends to be the watch-dog of established forms, a correction of literary extremes . . . [It] tends to confine itself to 'writers whose style and habit of thought, 43. Kiremidjian, note 40 above, at 234.

*being more marked and peculiar, was more capable of exaggeration and distortion.' This tendency seriously restricts the scope of critical parody because it seems to ignore the fact that the absence of any 'marked and peculiar' style and habit of thought is a symptom of mediocrity rather than of talent."44 This is overstated. There are plenty of parodies of mediocrity, as in the Gerty MacDowell episode in Ulysses;45 mediocrity is often ridiculous. And parodies of the style of great writers, such as Shakespeare's parody in Hamlet of Marlowe46 or Beerbohm's parodies of James and Shakespeare,47 focus on criticizable (whether justly or not) features of the style of the writers parodied-in these examples, Elizabethan bombast and Jamesian convolution. Whether an individual writer or an entire culture is being parodied, there will rarely be any question of copyright infringement because the parodist will not have to copy any of the writer's actual sentences in order to evoke the writer's style. "Myra b.u.t.tle" could have done an effective parody of T. S. Eliot without sticking so closely to the meter and story line of "The Waste Land."

A parody does not always ridicule the parodied work. It may use that work-treating it as the standard of excellence-to ridicule something else. "The Waste Land" parodies Augustine, Dante, Spenser, Marvell, and other cla.s.sic authors not to criticize them but to criticize the sordidness and spiritual emptiness of modern life-they are the standard, and thus the weapon, not the target. The weapon form of parody, which the cases tend to call "satire," is ill.u.s.trated by a case in which the owner of the copyrights on the Dr. Seuss books brought suit against the publisher of a book that-bizarrely-narrated the events of the murder trial of O. J. Simpson in the style of Dr. Seuss.48 The plaintiff won.

Properly speaking, the satire that copies previous work is merely a subset of satire; countless satires, like Brave New World and Nineteen 44. Riewald, note 41 above, at 132133 (footnotes omitted).

The style of which "owes a considerable debt of parody to the style of " Maria c.u.mmins's novel The Lamplighter (1854), whose heroine is named-Gerty. Don Gifford, with Robert J. Seidman, Ulysses Annotated: Notes for James Joyce's Ulysses 384 n. l (2d ed. 1988).

In the player's bombastic speech narrating Priam's slaying by Pyrrhus (II.2.450518)- a takeoff on Aeneas's narration of the same incident in Marlowe's The Tragedy of Dido, Queen of Carthage (II.1.518558).

The latter in "'Savonarola' Brown," in Beerbohm, Seven Men and Two Others 233, 246 (1950).

48. Dr. Seuss Enterprises v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

Eighty-Four, deliver their satirical attack without coming within a mile of infringing anyone's copyright. But my concern in this chapter is with the copying satire. It must not be allowed to copy so many of the copyrighted features of the original work that it becomes a subst.i.tute for that work. For then one could reproduce an entire copyrighted work with impunity simply by giving the characters funny names or having them speak in comical accents, thereby siphoning off the silly or vulgar members of the audience of the original work-who may be a substantial fraction of the potential audience for that work. There is value in humor, but a humorous version of a literary work is a derivative work, which the publisher of the original work is ent.i.tled to control. That is not true of the type of parody that criticizes the parodied work; it is not offered as a subst.i.tute for that work and so it meets the test for fair use.

It thus is understandable why courts are less receptive to the fair use defense for satires than for other parodies.49 A further reason is that deciding whether a satire is different enough from the work used as the satirical weapon to be deemed a fair use of that work requires a judgment that courts are reluctant to make, though it is no more difficult than determining whether any kind of nonidentical copy infringes the copyright on the copied work.

Some parodies do not fit neatly into either the critical or the satirical bin. All the poems in Alice in Wonderland-and not just (obviously) Twinkle, twinkle, little bat How I wonder what you're at!

Up above the world you fly Like a tea-tray in the sky -are parodies.50 Is Lewis Carroll criticizing "Twinkle, twinkle, little star," or invoking it to ill.u.s.trate the decline of taste? Neither; and this is true of most, maybe all, of the other poems, though Simon Dent.i.th argues that As pointed out in Bruce P. Keller and Rebecca Tushnet, "Even More Parodic Than the Real Thing: Parody Lawsuits Revisited," 94 Trademark Reporter 979 (2004). Despite the name of the journal in which this article was published, the article is mainly about copyright infringement.

Florence Milner, "The Poems in Alice in Wonderland" (1903), www.durrant.co.uk/ alice (visited May 14, 2008).

*"Father William" rebukes the "smug didacticism" of Robert Southey's original,51 "The Old Man's Comforts and How He Gained Them." There the "young man" asks William the secret of his healthy old age and gets a serious answer; in Carroll's parody the young man asks William why at his age he still stands on his head,and is answered: "'In my youth'.../'I feared it might injure the brain; / But now that I'm perfectly sure I have none,/Why,I do it again and again.'" It seems a shame that under modern copyright law Carroll's parodies (with perhaps the exception of "Father William") might be considered derivative works not sheltered from liability by the fair use defense for parody. Perhaps we need a broader definition of parody. But as I said earlier, if all humorous derivative works were considered fair use, the scope of copyright protection would be drastically curtailed. Where the line should be drawn is uncertain.

An author might feel his work defaced by the humorist who creates a comical version of it. With this possibility we enter the domain of "moral rights" (more specifically, the "integrity rights" component of moral rights), a European doctrine, making gradual inroads into American intellectual property law, that gives an artist the authority to block unauthorized alterations of his work.52 The contrast with patent law is stark. An inventor can, without the authorization of the patent holder, make and patent an improvement in the patented item. He cannot make and sell the improved item without the patentee's authorization, because that would be infringement, but neither can the patentee make and sell the improved item without the authorization of the patentee of the improvement, for that would be infringement too. So there is a standoff, inviting negotiation. A similar rule for copyright would allow a writer to make and copyright a humorous or otherwise "improved" version of the original copyrighted work but forbid him to license it without the original copyright holder's authorization. Because of the length of copyright terms and the fact that an author may not be the best judge of how his work could be improved, such a rule might provide greater encouragement to literary and other artistic creativity than the present one. Stephen Joyce, the literary executor of his grandfather's estate, has been criticized for his stub Dent.i.th, note 37 above, at 13.

See Landes and Posner, note 1 above, at 276277.

born efforts to prevent, on grounds of bad taste, the creation of derivative works of Ulysses.53 The critical parodies, the satirical parodies, and the Alice-type parodies can all be grouped under the rubric of "revisionist texts,"54 along with such works as Jean Rhys's novel Wide Sarga.s.so Sea (a revision of Jane Eyre), Tom Stoppard's play Rosencrantz and Guildenstern Are Dead (a revision of Hamlet), The Lady of Belmont, Diario di Lo, Christophe Claro's novel Madman Bovary, and Doctorow's novel Ragtime (see chapter 2), all of which are closer to the Alice type of parody than to the more conventional categories. These are works spared copyright problems (all but Diario di Lo) only because either the copyrights on the originals have expired or the originals had never been copyrighted. Shakespeare's Roman history plays and Milton's Paradise Lost are further examples of revisionist texts of great distinction that do not fit the conventional parody categories. A fair use privilege broad enough to cover all revisionist texts would make copyright protection nugatory; and even a slightly narrower one would create horrendous problems of enforcement, as it would often be impossible to determine whether the author of an unauthorized copy was copying the original or the revisionist text (parody in the broadest sense). The courts cannot be criticized for limiting the fair use privilege to a subset of parodies, though the cost in creativity may be high.

Should a parodist ever be allowed to take from the original more than is necessary to make the parody effective? The less he takes, the less likely he is to be siphoning off the audience for the original work. But as in the law of larceny, so in the law of copyright, there is no privilege for stealing small. The parodist is allowed to "steal" only so much as he needs to remind his readers of the original work, and that is a criterion independent of the relative or absolute amount of the original work that he takes. The problem is that to determine how much the parodist needs to take from See Robert Spoo, "Injuries, Remedies, Moral Rights, and the Public Domain," 37 James Joyce Quarterly 333, 337346 (2000).

Helpfully discussed and ill.u.s.trated in Kenji Yos.h.i.+no, Note, "What's Past Is Prologue: Precedent in Literature and Law," 104 Yale Law Journal 471, 484486 (1994), which builds on the literary critic Harold Bloom's conception of the relation between creative writers and their predecessors.

*the original in order to achieve his parodic goals will often require the judge to make a literary judgment.55 Against limiting the parodist's privilege it can be argued that since effective parody requires that the original work be known to the audience, the only works that are ever parodied are successful works, implying that the copyright holder will have reaped his just reward and should not be heard to insist on a share of the profits of the parody, at least if there is no danger of the parody's taking audience from the original. But while viewed ex post a successful work of intellectual property-a Broadway hit, a bestseller, a hit song-may appear to confer a windfall gain on the creator, ex ante the creator faced a distribution of possible outcomes. If the upper tail of the distribution is truncated, the mean of the distribution of possible outcomes will be lowered and the incentive to create intellectual property therefore reduced.

It can be argued that freedom of expression would be impaired by burdening the creation of parodies with the costs of transacting with and paying royalties to copyright holders. But writers are not allowed to steal paper and pencils in order to reduce the cost of satire; why then should social criticism be subsidized by allowing writers to use copyrighted materials without compensating the copyright holder? The two cases are not identical, however. Intellectual property is a public good. A pencil is not. If you take my pencil I cannot use it, while if you take my intellectual property I can still use it, so the deprivation is less. Still, my incentive to create will be diminished if I cannot make you pay for my creation. And recall that it is possible to parody an author, a genre, even an individual work without taking any copyrighted materials at all.

The parodist, in short, must be allowed to take enough from the original to make his work recognizable as a parody, but not so much as to make it a subst.i.tute for the original. The challenge to the law is to find the point, within the range of possible fair use configurations bounded by these extremes, that will produce the optimal mixture of parodies and original works. The more literary the judges, the greater the probability of finding that point.

55. See Zahr Said Stauffer, "'Po-Mo Karaoke' or Postcolonial Pastiche? What Fair Use a.n.a.lysis Could Draw from Literary Criticism," 31 Columbia Journal of Law and the Arts 43 (2007).

conclusion

Law and Literature: A Manifesto

end not with a summary but with a short list of theoretical, methodological, and pedagogical precepts to guide the further development of law and literature as an interdisciplinary field of teaching and scholars.h.i.+p.

The choice of literary works worth a.n.a.lyzing in relation to the concerns of lawyers, judges, and law professors is a function of, first, the test of time-conceived of as the sole reliable touchstone of literary quality and significance-and, second, Aristotle's distinction between literature (as representative) and history (as idiosyncratic). The test of time can explain why lawyers' professional concerns are rarely the most interesting subject of a "legal" literary work; why too expansive a concept of copyright might stifle literary creativity; why the depiction of law in popular culture is unlikely to provide a rewarding subject for a course in law and literature; and why works of great literature cannot be expected to conform to pres-ent-day moral beliefs. The representative character of literature reinforces the first two points and also shows how literature can sometimes be a better source of background knowledge for lawyers than history or sociology and why writers of imaginative literature are likely to alter the character of any real persons whom they incorporate into their work as fictional characters, quite apart from fears of being sued for defamation.

545.

*The law and literature canon must not be defined by reference to a political ideology. Political correctness, whether of the Left or of the Right, should not be a criterion for inclusion or exclusion. Nor should the movement define itself in opposition to other scholarly fields, such as law and economics. To do so is to indulge in a politics of nostalgia and marginalize the movement. We saw in chapter 6 that economic a.n.a.lysis can sometimes contribute to an understanding of the legal issues presented in literary works and in chapter 14 how it can advance the understanding of the proper scope of authors' property rights.

Yet because of the open-ended character of so much great literature (still another implication of the test of time), interpretations of particular works are bound to be influenced by the interpreter's ideology. That is true of some of my interpretations. Given the ideological divisions in our society, no interpretations of great literature are likely to be definitive- and this should be acknowledged-though some can be rejected as being wholly unsupported by the text or context of a work of literature or as gratuitously diminis.h.i.+ng the work's emotional impact or intellectual interest.

Literary works ostensibly about law, politics, or other societal issues often have a deeper layer of meaning (as implied by the test of time), which I have called "metaphysical." The law and literature movement must not focus myopically on superficial aspects of a literary work just because those are the ones that concern law; by doing so it will be failing to teach lawyers and law students to be careful, imaginative readers. The literary author's interest in law is different from the lawyer's. The frequency with which trials in literature turn on legal technicalities is not a comment on law or a criticism of it, but a dramatic necessity. Rarely can a work of literature be expected to yield deep insights into law at the operational level.

What literary texts that have law for a theme can do for legal teaching and scholars.h.i.+p is to illuminate issues of jurisprudence or legal process, such as the proper scope of judicial discretion, the theory of punishment, the role of revenge in the prehistory and the present administration of law, and the choice between adversarial and inquisitorial systems of procedure. A jurisprudence course in college or law school could profitably subst.i.tute works of great literature for the dusty tomes of legal philosophy. There is need, however, for a better balance in the scholarly attention devoted to the great "legal" works of literature. Too much attention is being paid to Billy Budd, The Merchant of Venice, and To Kill a Mockingbird. The first two are great works of literature and deserve attention. But the temptation of scholars to ma.s.s around the few works that have generated a great deal of scholarly attention-so that the scholars end up writing about the scholars.h.i.+p rather than about the works (an obsessive academic tendency)-should be resisted.

The following is a nonexhaustive list of complete literary works or discrete parts of such works, all discussed in this book, that depict law and are suitable for courses in law and literature in colleges, law schools, and graduate literature departments. I omit very long books, which might take up more time than students could devote to the course. Even with that omission, it is obvious that there are many choices besides the three noted in the preceding paragraph.

Alice's Adventures in Wonderland (trial scene) Antigone "Bartleby the Scrivener"

Billy Budd "The Dead"

Doctor Faustus Eumenides The Gospel according to St. John (trial of Jesus) Hamlet Hecuba "In the Penal Colony"

"The Judgment"

Julius Caesar "A Jury of Her Peers"

The Just and the Unjust King Lear Mansfield Park Measure for Measure The Merchant of Venice Michael Kohlhaas *"The Motive for Metaphor"

"The New Advocate"

An Odor of Verbena Oedipus Tyrannus Paradise Lost A Pa.s.sage to India (trial scene) "The Problem of Our Laws"

Pudd'nhead Wilson Saint Joan (trial scene) The Stranger The Tria*Other aspects of law and literature, such as interpretation, the use of literary techniques in legal writing, the claimed humanizing effect of literature on law, and the regulation of literature by law, are worth teaching, of course. But they are best taught by giving students brief excerpts from literary works and from such legal texts as statutes, judicial opinions, legal essays (including oppositional narratives), and const.i.tutions, to read and discuss.

Literature can provide lawyers, judges, and law students with valuable background knowledge concerning subjects of legal regulation (in chapter 10, I gave the ill.u.s.trations of asylum seeking, bioengineering, global warming, virtual reality, consumerism, and electronic surveillance) and with fascinating hypothetical situations for testing legal principles. Examples of the latter are Faustus's contract with the devil and two issues that engaged the attention of James Fitzjames Stephen: whether Iago was guilty of murder because of his role in Oth.e.l.lo's killing of Desdemona and whether f.a.gin in Oliver Twist likewise was guilty of murder because of his role in Bill Sikes's killing of Nancy.1 But tighter boundaries need to be drawn around the field. Not every work of literature should be considered fair game for the law and literature scholar (the danger of too ec.u.menical a conception of the field is that the scholar will pick the works he likes or knows best, however attenuated their relevance to law), though we have seen how seemingly disparate works of literature on legal themes 1. See Lisa Rodensky, The Crime in Mind: Criminal Responsibility and the Victorian Novel, ch. 1 (2003).

compose an order of literature, repaying study together. Nor is every legal doc.u.ment a fruitful subject for literary a.n.a.lysis. To admire a particular work of literature or to be exercised about a particular legal issue (such as capital punishment) is not a good reason for dragging the work or the issue under the lens of law and literature scholars.h.i.+p.

Although law is a common theme of popular culture, and most of the culture produced and consumed in the United States is popular culture, works of popular culture are rarely a fruitful subject for law and literature scholars.h.i.+p; the treatment of law is unlikely to be insightful or the works themselves a rewarding read. Of course many cla.s.sics originated in popular culture, but it requires time to sort them from the mult.i.tude that never attain the status of a cla.s.sic.

Yet populism has its claim: the law and literature movement should rely more heavily than it does on nonacademic literary criticism-not only criticism written by poets such as T. S. Eliot and W. H. Auden, by other writers of literature, and by great literary journalists, such as Edmund Wilson and George Orwell, but also criticism written by academics of an earlier generation who wrote for a general audience and often were not burdened by a Ph.D. The law and literature movement, if it can resist the siren song of the obscure, the esoteric, the trendy, and the arcane, can help restore a generalist interest in literature. Law and literature scholars should heed Peter Brooks: "[Literary] criticism may need to think more of its pedagogical nature and recreate a closer relation to cla.s.sroom praxis . . . Intelligibility in response to questions, both real and imagined, is a good test of critical writing . . . We have come to embrace the notion of the critic as creator, but there is plenty of evidence that the public prefers to see us in the more humble role of reader's surrogate, stand-in, gobetween."2 Jargon should be eschewed, interpretive extravagance forgone. Our culture needs responses to literature that are unmediated by pretentious theory and are expressed in unvarnished prose. It needs the freshness of Auden's capsule description of what he calls the "active" characters in Hamlet: 2. Peter Brooks, "On Difficulty, the Avant-Garde, and Critical Moribundity," in Just Being Difficult? Academic Writing in the Public Arena 129, 137 (Jonathan Culler and Kevin Lamb eds. 2003).

*Polonius is a pseudo-practical dispenser of advice, who is a kind of voyeur where the s.e.x life of his children is concerned. Laertes likes to be a das.h.i.+ng man-of-the-world who visits all houses-but don't you touch my sister! And he is jealous of Hamlet's intellect. Rosencrantz and Guildenstern are yes men. Gertrude is portrayed as a woman who likes to be loved, who likes to have romance in her life. And Horatio is not too bright, though he has read a lot and can repeat it.3 We need to ponder Auden's remark that Antony and Cleopatra's tragic flaw "is general and common to all of us all of the time: worldliness-the love of pleasure, success, art, ourselves, and conversely, the fear of boredom, failure, being ridiculous, being on the wrong side, dying."4 It needs his one-sentence summing-up of Ca.s.sius: "Ca.s.sius is childishly envious-I swim better!"5 Law and literature scholars need to climb down several rungs from their ivory towers and place greater emphasis on service to the legal profession. They need to pay greater attention to the rhetoric of judicial opinions, to the short story as a model of the judicial opinion, to legal advocacy, to literature as a source of background knowledge about issues that present challenges to legal policy, and to the scope and consequences of the regulation of literature by copyright law, defamation law, and other legal doctrines that shape choices made by literary writers. They need to abandon efforts, so far fruitless and likely to remain so, to apply principles of literary interpretation to statutes and to provisions of the Const.i.tution. And they need to give up on efforts to humanize the practice of law by immersing judges, lawyers, and law students in literary works, unrelated to law, selected for ideological reasons and viewed through the prism of moralistic literary criticism.

3. Auden, "Hamlet," in Auden, Lectures on Shakespeare 159 (Arthur Kirsch ed. 2000).

4. Auden, "Antony and Cleopatra," in id. at 231, 241. "The physical attraction between them is real, but both are getting on, and their l.u.s.t is less a physical need than a way of forgetting time and death. For that reason, they require the support of refinements and sophistication. But their relations.h.i.+p is therefore selfish and destructive, and it doesn't work." Id. at 240.

5. Auden, "Julius Caesar," in Lectures on Shakespeare, note 3 above, at 125, 134. The allusion is to Ca.s.sius's recounting to Brutus how he had saved Caesar from drowning when they were swimming together in the Tiber. Julius Caesar (I.2.100115).