Voices in Disharmony
Earlier this year, in a review of author Nick Tosches Where Dead Voices Gather, a biography of 1920s coon singer Emmett Miller, the Weekly revealed how Tosches unacknowledged use of purported testimony in a 1917 copyright-dispute trial constituted plagiarism; in addition, the lengthy quote, used by Tosches to climax the opening passage of the book, was pure fiction.
The lifted material was in fact a literary device created by English entertainer-author Ian Whitcomb and buried, like a land mine, in Whitcombs self-published 1994 memoir, The Beckoning Fairground: Notes of a British Exile in Lotus Land. (Whitcomb personally sent a copy of the book to Tosches after the New York hipster requested a cassette of a 1996 Whitcomb radio broadcast on Miller and similar early song stylists).
The 1917 trial in question, convened to settle a dispute over the composition of The Livery Stable Blues, was an actual case, but Whitcombs souped-up comic-dialect version (attributed to a witness in the case, New Orleans jazz musician Alcide Yellow Nunez) was a fantasy; ironically, Tosches has frequently peppered his work with precisely the same kind of fiction (a murder that never happened and an inference that a Nashville girl singer was a transsexual in Country; a chapter in Unsung Heroes of Rock & Roll on nonexistent singer Jesse Presley).
The lift from Whitcomb went beyond fair use; unconscious plagiarism they call it before the bar, and following my reviews publication, Whitcomb brought the matter to Dead Voices publisher Little Browns attention, requesting acknowledgment and a $500 fee. The resulting flurry of correspondence bears examination, particularly the initial response from Little Browns senior V.P. and publisher, Michael Pietsch, who trumpeted Tosches exhaustive primary research over 25 years and proclaimed that the testimony you and Tosches both reference are widely known and have been cited in dozens of books and articles over the years.
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Such an arrogant dismissal makes it seem that Tosches, ever eager to disguise himself as an authoritative researcher (albeit one who routinely relies on hired hands), blithely tried to fib his way out of the charge. Following a letter from Whitcombs attorney bumping the fee to five grand, AOL Time Warner executive Carol Fein Ross hastily offered the original sum and an assurance that the passage would not appear in future printings, regardless of the legal merits of the situation, but with the stipulation that the monetary compensation serve as a release for Tosches and Little Brown from any related claims. In a subsequent letter to Whitcombs lawyer, she threw in a threatening If, however, for some reason your client chooses to commence down the long path of litigation, please understand that we will be prepared to respond, and I would remind you that the Copyright Act authorizes payment of legal fees to the prevailing party under questionable circumstances such as this. Bluster aside, they paid off within weeks, the Nunez stuff is excised from Dead Voices paperback edition, and no one -- ToschesAOL Time Warner clearly hope -- is the wiser.
Perhaps the most dismal aspect of the whole sordid affair is Tosches failure to review Nunezs actual testimony during the original case discussed in Tosches book; it has as much metaphoric power as Whitcombs florid creations. (Nunez spoke of hashing up the real power blues.) Then again, as Pietsch wrote, Tosches original research, thoughts and interpretation are clearly demonstrated in Where Dead Voices Gather. Yes, they are. Thats the problem.
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