BOOKS / But whose life is it?: Writers and artists have always dreaded being accused of plagiarism, but now they risk legal threats from those who would like to own fact as well as fiction. A playwright answers back

LAST YEAR, outraged by what he saw as the distortion of his intentions during rehearsals for his play Wessis in Weimar, Rolf Hochhuth is said to have summoned the Berlin police to arrest the director and actors for copyright abuse. History does not record what happened when the cops hit the scene. (Does Berlin have a dedicated Copyright Squad, one wonders, with lynx-eyed forensic specialists trained to sniff out the faintest trace of a deforming cut, a capricious line reading or a disregarded stage direction?)

An agreement was finally reached for the play to go ahead, but with copies of the text handed free to audiences and a sign displayed at the box office stating that the author advised them not to attend. Not surprisingly, the show was an instant hit.

This was not the first or last time that playwrights have sought to defend their copyright against what they see as corrupt interpretations of their work. Famously, Harold Pinter attacked Luchino Visconti for turning Old Times into a musical with lesbian overtones and Samuel Beckett's estate recently berated director Deborah Warner's production of Footfall for ignoring stage directions and transposing text. And with typically litigious zeal, American playwrights are taking producers to court when their intentions are misrepresented.

No playwright could entirely disapprove of this phenomenon. Copyright - the right to control one's own text - is a precious possession. To turn a play into what it isn't is a kind of theft. But writers and artists are not the only people telephoning their lawyers: there are concurrent expansions in the notion of copyright and creative property which should give any artist pause.

The official British artist of the Gulf war, John Keene, has faced legal threats from the Disney Corporation for having painted a picture of the devastation of a Kuwait beach which included a Mickey Mouse doll; another British artist, David Haslam, faces legal action from the owners of the copyright of Noddy. When American artist Jeff Koons made an eccentrically-coloured three dimensional sculpture of a well known monochrome photograph of a couple embracing six identical dogs, the original photographer sued. And the British Design and Artist's Copyright Society is campaigning against the manipulation - by parody or copy - of the work of dead but still copyrighted artists such as Magritte, Dali and Picasso.

In the literary and dramatic worlds, it's the originals rather than the originators who are on the march. The playwright John Guare heard of a New York conman who pretended to be the son of Sidney Poitier, and used this as the jumping off point for Six Degrees of Separation; the conman took him to court. The case was eventually thrown out. Four former Beirut hostages objected to Granada's drama-documentary on their captivity, on the grounds that the play infringed their own rights to their own stories.

The American David Leavitt's novel, While England Sleeps, partly derived from an episode in Stephen Spender's autobiography, was withdrawn from British publication after protests from Spender and will only be reissued after substantial revision. When Robert Stone decided to write a novel about a mad round-the-world yachtsman and naturally enough read up the most celebrated real case, two journalists who had written a book about Donald Crowhurst claimed they somehow had exclusive reproduction rights over the story they had unearthed.

All these cases call upon the moral authority attached to creative origination. The problem is that different things are being claimed, for very different reasons. Hochhuth, Pinter and the Beckett estate argue that a play advertised as being by a named author will be assumed to reflect that author's artistic and - in Hochhuth's case - political intentions. Neither the Disney Corporation nor the Blyton estate could possibly claim that John Keene and David Haslam were ascribing a particular intention to the creators of Micky Mouse and Noddy: the artists were clearly using these images for their own purposes, and the corporations who own those images were not defending the integrity of a creative act but protecting a logo.

Coca-Cola's new campaign claims that its trademark, Coke, is the second most recognised word on earth (after 'OK'). Under those circumstances, it would be hard for the company to justify protecting its diminutive against the referential use and abuse that afflicts ordinary words and expressions in the rough and tumble of the everyday world.

When Time magazine used a multiplication of Adam's hand from the Sistine Chapel to illustrate a story on biological cloning, it was not seeking to revise Michelangelo's original but to pay it a compliment (as do the cartoonists who rework well-known images 'with apologies' to the original artist). If, as the Design and Artists' Copyright Society claims, Magritte is exploited by advertisers and Matisse by swimsuit designers, then it may be devaluing their estates but hardly their reputations.

Everyone understands that droopy objects in a whisky commercial or yellow wicker chairs advertising Guinness are acts not of plagiary, but of punning: a perfectly legitimate recycling of images whose peculiar resonance has placed them beyond the confines of their origination. Equally, I believe that people understand quite well what is happening when factual material is used as the source for fiction.

First, journalists cannot claim copyright over the facts they report. In 1990 I wrote The Shape of the Table, a play about the recent East European revolutions, and received a blistering letter of complaint from the author of one of the many books about those events. I had indeed read his book and found it helpful, but didn't feel that he could claim ownership of the fact that many Czech dissidents became stokers and window-cleaners, or that since 1989 Asian guest-workers have been attacked by skinheads in the for mer Communist countries, or that making loud noises foils electronic surveillance (something of a dramatic cliche in fact: mine was a cassette player, Caryl Churchill's Mad Forest has a radio, in Arthur Miller's The Archbishop's Ceiling it's a gramophone and in Tom Stoppard's Professional Foul, it's running a bath).

Second, much of the controversy implies (as does so much current argument over fiction) that readers and audiences are unable to grasp the conventions in use and confuse the rules of fiction and journalism. This is surely wrong. Fictionalisation of Margaret Jay's affair with Watergate journalist Carl Bernstein is now practically a cottage industry, but no one would turn to Nora Ephron's Heartburn or Susan Crosland's The Magnates for information - any more than - despite Melvyn Bragg's protestations - they would read Michael Dobbs for juicy insights into the nocturnal habits of the Prince of Wales. What's happening is what's happened throughout the history of storytelling, which is that writers have noticed incidents from their own direct and indirect experiences and set them within plots in order to say general things about the human condition. What the reader is invited to engage in is not information communicated through a medium but narrative expressed through a form.

The attempt to copyright information - even about one's own life - implies that there is some kind of absolute truth that stands above artistic 'interpretation' and needs to be protected from it. John McCarthy and Brian Keenan's riveting accounts of what were, in substantial part, the same events show clearly how narrative technique and perspective can re-shape meaning (as indeed, less creditably, do the various insider accounts of the fall of Margaret Thatcher). The contemporary American fashion for the competitive dramatisations of current scandals - based naturally on exclusive rights to the stories of the participants - also demonstrates that no single reading contains the whole truth. All three US networks broadcast dramas based on the 'Long Island Lolita' case, in which the teenage Amy Fisher shot Mary Jo Buttafuoco, claiming that she was having an affair with Buttafuoco's husband. The NBC screenplay presented Amy's case, CBS based theirs on the Buttafuocos' story, while ABC used the transcripts of the trial.

But the key point about the Amy Fisher affair is not that three different views were presented, but that two of them were bought. And it's intriguing that for all the rhetoric about creative integrity, almost all of the cases cited are about non-creators claiming against creators; either corporations claiming exclusive rights over images which have - through their originators' brilliance, of course - become common visual currency, or individuals (newspeople or the newsworthy) asserting ownership of information in the public domain. Those claimed against, in every example, are creators seeking to put these images and stories to artistic use.

This kerfuffle is not really about a renewed passion for protecting an artist's work; it's about the growing commodification of communications, which is ultimately not in the artist's interests at all. As long ago as 1957, Northrop Frye remarked how 'demonstrating the debt of A to B is mere scholarship if A is dead, but a proof of moral delinquency if A is alive'. It's a particular irony that as corporations and individuals seek to prevent writers from drawing on the images around them, so literary critics assure us that the writer as an autonomous being is a myth, and we are in fact nothing more than the sum of the influences upon us.

You don't have to go all the way with that theory to acknowledge that writing will be a bleak and impoverished business if it can draw only on the private experience and imagination of the individual writer. The fact is that most of our 'experiences' and indeed much of our 'imagination' are formed from the imagemaking of others. It is not just that Shakespeare built on or borrowed from Marlowe and Holinshed: their plays were in conversation with each other, just as writers and artists (Enlightenment composers, Impressionist painters, Modernist poets) have often flowered in communities of endeavour.

Artists are, in short, all scavengers, taking and re-using not only 'real life' but also the images and artistic forms that flow from it. They can either accept that debt, and celebrate the conversation of which their work is a part, or engage expensive lawyers to attempt to fence off the ultimately unfenceable.