Making your point at different levels
For my appellate brief writing class, I choose a pending SCOTUS case for the students to write a brief for. This past year, I chose two trademark cases: Andy Warhol Foundation for Visual Arts v. Goldsmith and Jack Daniel’s Properties, Inc. v. VIP Products LLC. Justice Kagan wrote for the majority in Jack Daniels and a dissent (with Chief Justice Roberts joining) in Andy Warhol Foundation.
I was doubly interested in reading these opinions. First, I had more than surface-level knowledge of the cases, as I had focused on them at a pretty granular level in my teaching. Second, I hoped that, given the fun facts and potential for cultural references in each case, Justice Kagan would write at least one of them. When I saw that she and Roberts were together on the Andy Warhol dissent, I was just a bit more excited–it’s not too often that the court’s two best writers team up.
As I read the Andy Warhol dissent, I found myself feeling something that I never thought I would feel–that Justice Kagan was overdoing it on the cultural references. I have a very high tolerance for such things, but I felt it being tested. Then I realized what she was doing: using form to make an implicit point that she made in other ways explicitly.
The central premise of her dissent is that all artists creatively borrow from others’ work–she calls it “transformative copying.” She explicitly makes this point and gives many examples, from Shakespeare to Stravinsky.
She also makes the same point implicitly, by creatively copying others’ phrases to build her own prose. Just a few examples:
“A picture (or two), as the saying goes, is worth a thousand words, so here is what those magazines published:”
“‘Nothing comes from nothing, nothing every could,’ said songwriter Richard Rodgers, maybe thinking not only about love and marriage but also how the Great American Songbook arose from vaudeville, ragtime, the blues, and jazz.”
“[A]s Irving Berlin put the point, ‘songs make history, and history makes songs.'”
“He started with an old photo, but he created a new new thing.” (FN: “I have to admit, I stole that last phrase from Michael Lewis’s The New New Thing: A Silicon Valley Story (2014). I read the book some time ago, and the phrase stuck with me (as phrases often do). I wouldn’t have thoght of it on my own.”)
“‘No man but a blockhead,’ Samuel Johnson once noted, ‘ever wrote[] except for money.'”
“And there’s the rub. (Yes, that’s mostly Shakespeare).”
Justice Kagan was showing her point, not just telling it: an artist (here, a writer) can take others’ works and put them together in a new way to create a new thing.
What to take from this? Points are more persuasive when you can make them at different levels because it’s going to stick with your reader longer and has a higher chance of being persuasive. We’ll not all be able to pull it off like Justice Kagan, but (attempted) imitation is (at least one of) the sincerest forms of flattery.