Sherlock Holmes and the Shanghai Gesture

“Blast it!” Sherlock Holmes hurled the book across the room. It landed with a dull thud next to the coal scuttle.

Bound by Law? Tales from the Public Domain (New Expanded Edition)
Keith Aoki, James Boyle, Jennifer Jenkins
Duke University Press
September 2008
The Songs He Didn't Write: Bob Dylan Under the Influence
Derek Barker
Chrome Dreams
March 2009

“Blast it!” Holmes hurled the book across the room. It landed with a dull thud next to the coal scuttle. “I succumb to despair when I ponder the state of contemporary literature, Watson.”

I was documenting the latest Holmes adventure for Strand Magazine in my moleskin notebook, perched in my usual lair in the basket chair with writing arm. I carefully placed the cap on the pen, closed the journal, and considered the great detective with a self-satisfied smile. “I warned you that it was a bad book, Holmes.”

“Oh, it is far from a bad book, Watson. In point of fact it might be considered a very fine novel, conveyed by a creator endowed with an undeniable passion and prowess for wordplay and clever subversions. As a competent cryptanalyst, fairly familiar with all forms of secret writing, there’s more than meets the proverbial eye lurking beneath the murky surfaces of this book, my friend. And don’t forget that I am myself the author of a trifling monograph upon the subject, in which I analyze one hundred and sixty different ciphers.”

“Yes, Holmes,” I added dryly. “I wrote about it in The Adventure of the Dancing Men, if you will recall. The magazine still owes me payment for that submission.”

Holmes opened the violin case on his writing desk. “But surreal speculative fiction,” he continued, “holds precious little currency in the vacuous universe of modern publishing, dominated as it is with overheated pornographic tripe disguised as detective thrillers – no offense to your own fine skills in that genre, Watson – and cheap paperback morality tales written for monkeys with the cranial capacity of cantaloupes.”

“I dare say, Holmes –”

Holmes opened the violin case and extracted his fiddle, tucked the instrument firmly under his chin, and began improvising a nervous melody.

“Do you mean to tell me,” I continued, “that you found credibility in all this twaddle about the shipwreck of the Ardent Sodomite in Land’s End, admittedly the veritable anus of Great Britain’s fading shipbuilding industry, and the resulting spread of narcolepsy through the countryside?”

“There’s really nothing convenient about narcolepsy,” Holmes yawned. “And you a medical doctor, Watson.”

I pushed the writing arm aside and retrieved the paperback from the dark corner near the coal scuttle. The lurid little novel was titled The Shanghai Gesture, and the author was an American novelist and journalist named Gary Indiana (nee Gary Hoisington). Holmes had often spoken highly of Indiana’s non-fiction narrative Three Month Fever: The Andrew Cunanan Story as “one of the most insightful glimpses into the mind of a sociopathic killer ever written in the English language, or Balinese, for that matter … the chap certainly gave Capote’s In Cold Blood a run for its monster-under-the-bed money.”

“What about some of the preposterous character names in the novel, Holmes?”

The plaintive sigh of the violin continued as I leafed madly through the book. “Here!” I cried. “Erna Kuntz, Cho Fat Dong, Schnitzelbrotten the Hun, and Thalidomodo, described herein as ‘a bow-legged, Umbrian dwarf, whose head followed the contour of a Bartlett pear, his torso that of a Bose stereo speaker.’ Rubbish!”

Suddenly the music stopped. I turned around apprehensively. Holmes had put down his violin and was crossing to the sideboard. He opened my medical bag, removed an ampule of morphine, and started toward his bedroom.

“Holmes —”

Enter Fu Manchu

I crossed to the open door. Inside the bedroom, Holmes had placed the bottle of morphine on the washstand, and was rolling up his left sleeve to reveal his gaunt, bony forearm.

“Good God, man, where is your self-control?”

“Right here in this little bottle, Watson.”

From a drawer he removed a morocco case, opened it, and took out a hypodermic syringe.

“Aren’t you ashamed of yourself?”

“Thoroughly disgusted, but this will cure all maladies of the body and mind.”

Holmes removed the cap from the bottle of morphine. “Back to your question, Watson: What’s in a name? Erna Kuntz is certainly more memorable to a reader than, say, Jack White, that’s a writers trick as old as the Rosetta Stone.” He sucked the seven percent solution into the hypodermic (which I had customarily diluted to five percent), and began searching about for a high vein on his arm.

“And as far as Thalidomodo is concerned, I beg you, my good man, to consider what Mr. Indiana is articulating about mass genetic deformations created by evil geniuses in government sanctioned medical research labs all over the planet; surely science and the medical arts owe us some explanation for the bouts of mental narcolepsy that have afflicted so many for so long. We are a civilization of cretins, Watson, mindless sheep who make the worker drones in Orwell’s 1984 look like Greenpeace activists.”

Holmes found a vein suitable for his purpose and slid the needle in. Complete relaxation spread over him in an instant. Holmes returned the syringe to its hiding place in the morocco case. His head sunk upon his breast, and he looked from my point of view like a strange, lank bird, with dull gray plumage and a black top-knot.

“Do continue, Watson, the conversation is stimulating my dull gray matter.”

I took a seat on the plush green sofa across from the bed. “I’m surprised, Holmes, that a detective as great as yourself fails to express alarm at the outright thievery in this narrative, this … this Shanghai Gesture.”

“Thievery?” Holmes raised his head and an eyebrow. “I witnessed nothing but originality.”

“Fu Manchu as the villain?” I hissed. “Sax Rohmer created that fiendish yellow scourge in 1912! And what of the protagonists, Inspector Weymouth Nargil Smith and Dr. Obregon Petrie? Didn’t they remind you of a certain consulting detective and his assistant?”

Holmes laid his head back on a Persian pillow and stretched his long legs out on the bed.

“We – you and I, Watson – have become archetypes; furthermore, we were created and published before the year 1923, which places us and many of our adventures into the realm of public domain; the same legal instrument applies to Rohmer’s characters, created in 1912, as you noted. There is nothing new under the sun, Watson, everything is a version of something else; the key issues here are intertextuality and Fair Use.”

Holmes rose to his feet so quickly that I feared he would collapse from a sudden rush of blood to the head. “Even if Rohmer’s Fu Manchu character had not fallen into public domain, the author would have been protected by Fair Use laws as parody, Watson; commenting on or criticizing another work by appropriating elements of the original is protected by law under most circumstances.”

Holmes sauntered to the window and threw open the shades while humming the first few bars of the theme from the flicker Gone with the Wind (an overwrought melodrama, if you ask me).

“Consider the curious 2001 case of Suntrust versus Houghton Mifflin Publishing,” Holmes said. “A young author named Alice Randall wrote a parody of Margaret Mitchell’s novel Gone with the Wind told from a slave’s point of view. Miss Randall’s novel, The Wind Done Gone, alluded to copyrighted scenes and characters in Miss Mitchell’s novel, yet a Court of Appeals held that Randall’s work fell into Fair Use because her work was a critical and parodic rejoinder to Gone with the Wind, a deconstruction of the romantic depictions of slavery and the antebellum South.

The court held that it was hard to imagine how Randall could have criticized Gone with the Wind without depending heavily upon copyrighted elements of that book. Elements are the key, Watson; courts have upheld Fair Use when short excerpts from previously published materials are used in new and transformative ways. That would include, naturally, characters like you and I and Rohmer’s dread Yellow Peril, unless, of course …”

“Unless what?”

A Case of Perpetual Intertextuality

“Unless the characters are trademarked, as Edgar Rice Burroughs had the foresight to do with his creation, Tarzan Lord of the Apes.”

“But,” I sputtered, “Burroughs created Tarzan in 1912, the same year Rohmer created Fu Manchu! Tarzan is protected from “parodic rejoinders” but you and I and Fu Manchu are stray orphans that can be picked up and moved about by any writer at whim? That’s madness, Holmes!”

“Tell me something, Watson: do you perceive any difference whatsoever between the creation of Sax Rohmer’s Fu Manchu and the so-called dreaded Yellow Peril that he represented for a paranoid world of 1912 and, say, the equally elusive specter of Osama bin Laden in a post 9/11 world? One was cut from the cloth of the other, a perfect intermingling of art and politics.”

“Or art and mind control.”


Tales from the Public Domain

Holmes moved to a side table piled high with papers, clippings, and research materials, and began sifting through the detritus in search of something. “Judge Alex Kosinski of the U.S. Court of Appeals for the Ninth Circuit said that overprotecting intellectual property is as harmful as underprotecting it. Creativity, he said, is impossible, Watson, without a rich public domain. Ah ha! Here it is!”

With a flourish of dust, Holmes extracted from the clutter on the side table what appeared to be a garish American comic book with the improbable title Tales From the Public Domain: Bound By Law? I scoffed as Holmes pawed at the pages, found what he was searching for, and read aloud: “Nothing today, likely nothing since we tamed fire, is genuinely new: culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.”

“I say, is that a … comic book, Holmes?”

Holmes gazed languidly at the cover. “Yes, I suppose it is that, Watson, a monograph from Duke University on an extremely complex topic: intellectual property, the public domain, and free speech. In a digital world of remixed culture, every garage band and self-published poet and internet film-maker needs to understand the strange twists and turns of intellectual property law lest they find themselves on the wrong side of an infringement suit.

That the heady issue should be addressed in comic book form in no way negates the fact that this comic book — that you so scoff at — was created by three of Duke University’s brightest legal minds and is absolutely a must-have for anyone dabbling in the creative arts in contemporary society.”

Holmes sat down on the edge of the bed. His eyes were glassy and his hands rested on his bony knees, sometimes flopping about mindlessly as he spoke like a fish gasping for air on a dock.

“Consider the case of Bob Dylan, Watson,” he said through a morphic haze.

“Bob Dylan? Ho!” I laughed. “We’re going all over the map here, Holmes. Perhaps you should lie down before you become totally discombobulated.”

“It’s all related, Watson; intertextuality, a text’s quality of interdependence with all previous and future discourse. As an artist, Dylan reminds me much of Professor Moriarty. He is a shape-shifter, constantly exploring new and different sounds but at the root of it all there exist a small handful of interconnected music forms and traditions: blues and folk, Appalachian music – previously referred to disparagingly as Hillbilly Music – and even Talking Blues, a musical subgenre that harkens back to West African musical tradition before it was repopularized by the American singer Woody Guthrie.”

“And heaven knows Dylan is a Guthrie fan.”

“Precisely, Watson! Now you’re getting it!”

“Getting what, Holmes? All I’m getting is a splitting headache!”

Bob Dylan Under the Influence

Holmes pounced off the bed and began pacing the room furiously.

“In Dylan’s music there are persistent references to people and places of abstract myth: Jesse James, Pretty Boy Floyd, Woody Guthrie, the Battle of Jericho, the mighty Mississippi, John Wesley Harding and Ruben Carter, cotton fields dripping with blood and sweat, and the ghosts of long-dead bluesmen. Dylan relentlessly returns to the past to create something new. The only original artist, Watson, is the first creator of cave art and even he was probably copying someone else. This creates a very exciting prospect –”

Holmes reached under the Persian pillow and extracted a thick paperback book. I gazed at the title on the cover: The Songs He Didn’t Write: Bob Dylan Under the Influence. “Where on earth did you find this, Holmes, and to what end –”

“The author, Derek Barker, is an Englishman, Watson. Such is his status as an expert on all things Bob Dylan that he regularly advises premiere auction houses like Christie’s in London and New York on the authenticity of Dylan memorabilia. This exhaustively researched volume contains entries for 550 songs that Dylan has covered from the works of other singers and songwriters: material covered in concerts, private party sessions, informal coffee house appearances.

It’s a veritable encyclopedia of Dylan’s musical influences with biographical information on the major influences such as W.C. Handy, Woody Guthrie, Lead Belly, John Koerner. It is an absolutely indispensible addition to Dylan lore; not exactly light reading for the bedside table, mind you, but deserving of an accessible shelf in a collection of studies on the topic at hand, which would be, naturally, intertextuality.”

The man was on his feet and pacing the floor once more. “What if you were to substantially rewrite our adventures, Watson? Revise them with an eye to what came before, who influenced my skills of detection and my cunning use of logic? If we drill down that deep, Watson, we may finally unmask the true identity of Professor Moriarty.”

“Or give ourselves a migraine headache. I say, Holmes, I still don’t understand how all this gibberish about intertextuality is supposed to make me understand The Shanghai Gesture, all you’ve done is gone on and on and on about cave art and copyright law and Duke University professors writing a comic book, Tarzan and Fu Manchu, Gone with the Wind, Bob Dylan, Woody Guthrie, and The Adventures of Sherlock Holmes!”

Holmes fingered the collar of his Inverness cape, hanging on a coat rack near the door.

“I can sum up how I feel about The Shanghai Gesture thus, Watson: What if I was to tell you that another medical professional was vying for your position as my personal physician and assistant?”

“Who might be so damnably foolish to solicit such a thankless occupation?”

Holmes turned to me with a mischievous gleam in his eye.

“Wake up, Watson, wake up! His name is … Doctor Benway.”

I was suddenly as nervous as a cat shitting razor blades.

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