Thursday, September 24, 2015

The Old Man and the Sea

I recently came across an unusual blend of environment, law, history--and literature--in Enrique Guerra-Pujol's article, "Misappropriation and The Old Man and the Sea". The abstract:
We consider whether the great writer Ernest Hemingway may have committed the tort of misappropriation when he published his masterpiece “The Old Man and the Sea.” In summary, Hemingway either borrowed or stole (depending on one’s perspective) the following elements of his timeless novella: (i) the actual story itself, (ii) the “back-story” and other biographical details of the main character of the story, Santiago, as well as (iii) Santiago’s ascetic persona and physical characteristics. Although we concede that Hemingway combined these ingredients into a new and original artistic work, the question we are considering in this paper is whether Hemingway’s creative combination of such elements is enough to negate a claim of misappropriation under current U.S. or Cuban law. (We must consider Cuban law in addition to U.S. law since Hemingway lived in Havana, Cuba when he wrote and published “The Old Man and the Sea.”) That is, if Hemingway were writing “The Old Man the Sea” today, could he be liable under the common law doctrine of misappropriation or even under Cuban law?


  1. The article says Hemingway based his character on three different people. In addition to whatever insights about the world and life of his own he may have thrown in. And then there's the novella itself. Is The Old Man and the Sea a work of art, or is it just journalism? The claim that this may be actionable seems to impugn the law more than Hemingway.

    1. I reproduce the following from the article, omitting references:
      "Many State courts and State legislatures recognize a legal right to a person’s name, image, or likeness. Laws governing the commercial use of a person’s name, image, or likeness are generally referred to as the “right of publicity.” Although there is no federal statute establishing a nationwide right of publicity in the U.S., at least 31 States, including New York and California, recognize this right. (Nineteen U.S. States protect the right of publicity by statute, 21 by common law, and nine by a combination of the two.) In brief, the right of publicity confers on every person the right to control the commercial use of his or her name, image, or likeness or of any other recognizable aspect of his or her persona. Although this right is commonly associated with celebrities, every person--regardless of how famous or not--has the right to prevent the unauthorized commercial use of his or her name or image."

    2. So are you saying the passage you cite suggests to you that Hemingway used "recognizable aspects of...persona" inappropriately? If that's the case, then no one could write stories that make fictional use of people from history. Rushdie could not have written Midnight's Children. Stephen Crane probably might even be challenged on The Red Badge of Courage. Anyone who went somewhere, met people, had formative experiences, and then wrote might be liable.

      I'm not arguing that Hemingway had no responsibility to credit the sources of his inspiration. Maybe what I'm really arguing is that we misunderstand the nature of creativity -- including in copyright law. No one really creates ex nihilo. Everybody stands on the shoulders of other. Maybe it's the myth of individual creativity and intellectual property that spurs responses like the article you're quoting?

    3. I think the basis of these legal doctrines is the idea of a right to personality or privacy, but you're obviously right that there's a potential between these values and the potential to dampen creativity and expression.