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Why Kent Johnson shouldn’t be worried about the letter he received from the Koch estate, assuming it actually exists.

September 9, 2010 \am\30 7:30 am

Kent Johnson is about to publish a book called A Question Mark above the Sun: Documents on the Mystery Surrounding a Famous Poem “by” Frank O’Hara. Its thesis is that the famous Frank O’Hara poem “A True Account of Talking to the Sun at Fire Island” was actually written by O’Hara’s friend Kenneth Koch as a sort of tribute. (Tony Towle, who studied with both Koch and O’Hara, has written a lengthy rebuttal of Johnson’s thesis.)

On Monday, Johnson reported that he had received a letter from the Kenneth Koch Literary Estate “unambiguously threaten[ing] ‘legal action'” over the publication of the book. This development has received attention on the Best American Poetry Blog and The Chagall Position. [EDIT: As Johnson notes in the comments, his publisher, Punch Press, received the letter, not Johnson himself.]

I am in a unique position to comment on this development, as I am both a poet and a lawyer who practices in the area of media law from time to time. Based on Johnson’s blog post, I don’t think he should be worried… assuming the letter he says he has received actually exists.

Grounds for Suit Against Johnson

Johnson quotes a portion of the letter stating that various parties believe are “strongly convinced that this publication is a malicious hoax, one that denigrates Kenneth Koch’s character and dishonors his work.”

It sounds as if the estate may be threatening a defamation claim, specifically a libel claim (libel is defamation that is written or otherwise published; spoken defamation is called slander). However, a defamation claim against Johnson would fail for two reasons.

First and foremost, Koch is dead. While defamation laws vary from state to state, the standard common-law rule in the United States is that you cannot defame the dead.

Second, based on what little I’ve read, what Johnson says about Koch isn’t defamatory. To state a defamation claim, the plaintiff must ordinarily allege the publication of a false and defamatory statement about the plaintiff to a third party which has caused damages. The publication must be the fault of the defendant, and if the plaintiff is a public figure, an additional element of actual malice must be proved.

A “false and defamatory statement,” in this context, must both be false and injure the reputation of the plaintiff. Johnson’s statements about Koch may be false, even knowingly so, but does theorizing that Koch wrote a famous poem and published it under O’Hara’s name injure Koch’s reputation? I don’t think so, especially given that Johnson states that he believes Koch meant it as a tribute.

Third, a right of publicity claim by Koch’s estate would likely fail as well. In some states, such as California, a right of publicity claim can be brought by the estate of a deceased person against a defendant who has appropriated the name or image of that person for commercial gain. Johnson’s work, though, does not trade upon the commercial appeal of his name or image any more than any other scholarly work trades upon its subject’s name or image. If Johnson had claimed the book was written by Koch himself, perhaps things would play out differently.

Does the Letter Itself Exist?

The evident lack of basis for a claim against Johnson by the Koch estate leads me to ask whether the letter from the Koch estate might itself be fictitious. The only evidence of its existence is a blog post in which Johnson claims to have received it. If it does exist, Johnson either omitted a great deal of important information from it in quoting it, or the letter was written without consulting an attorney to determine whether the estate actually had grounds to pursue legal action. This seems unlikely, given the purported involvement of Koch/O’Hara publisher Alfred A. Knopf, but stranger things have happened. If Johnson chooses, I’d be happy to review a copy of the letter and evaluate its authenticity as well as the merit of any claims it asserts against him.

UPDATE: Richard Owens at Punch Press sent me a copy of the letter. Its contents, and some other information I received, have convinced me that it’s real. Owens has asked me not to comment on the contents of the letter for now, so I won’t, although there’s certainly more to be said.

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9 Comments
  1. Kent Johnson permalink
    September 9, 2010 \am\30 11:45 am 11:45 am

    Richard,

    Thank you very much for this information. We may be in touch with you. We’ll see what develops after the book’s appearance.

    I can assure you the letter does exist!

    thank you,

    Kent

  2. Kent Johnson permalink
    September 9, 2010 \pm\30 2:42 pm 2:42 pm

    Richard,

    I missed that you say the letter was sent directly to me. Just to clarify, it was sent to Richard Owens, publisher of Punch Press.

    Would you please write me? thank you:

    kent.johnson@highland.edu

    Kent

  3. September 9, 2010 \pm\30 3:02 pm 3:02 pm

    Kent,

    in comments at Digital Emunction, I alluded to my own wondering about the letter’s authenticity, saying that, because we haven’t heard otherwise from Padgett or Davis, we have to assume that it’s real. (Since they are, if I understand correctly, authorized spokespersons for Koch’s literary estate.)

    You say “the letter does exist,” Kent, but is it authentic?

  4. September 9, 2010 \pm\30 7:41 pm 7:41 pm

    Oh — it’s authentic. Araki Yasusada just sent me a copy.

  5. Henry Williams permalink
    September 10, 2010 \pm\30 10:47 pm 10:47 pm

    I’ve been intrigued with this since I first read of it the other day. Presuming it to be authentic, I can understand the O’Hara faction’s reaction since it would basically remove authorship of what could be considered a poem central to his poetic legacy. The Koch estate’s reaction is a bit harder to understand for me since were Johnson’s hypothesis true it could do nothing but enhance Koch’s legacy or myth, in that not only was he a skilled enough poet to write such a poem, but he could do so in a voice which could credibly be attributed to O’Hara, and then with great generosity of spirit, to cede the poem inspired by his friend to his friend, and keep the secret….But the one thing that troubles me about the letter, and I have not seen it so I cannot know how it was signed or by whom, is the inclusion of Alfred A. Knopf, the publisher. It has been said that the letter came from the Koch estate (I presume on their letterhead?) but was from, or on behalf of, or drafted by a group, which included Knopf. I guess the thing that troubles me is that I don’t understand if the anger of Knopf was just thrown in for good measure by the Koch and O’Hara folks, or if there were an actual person from Knopf, say the publisher or general counsel, who attached their name to this letter. In my experience, publishers such as Knopf do not send vague anonymous threatening letters, they send cease and desist letters from a specific person in their legal department, and usually when there is truly actionable reasons, or reasons they perceive as such, to do so as in a case of copyright infringement. But as was pointed out above, quite well, there does not appear to be any truly actionable claim here.

    • September 11, 2010 \am\30 8:35 am 8:35 am

      I am not sure what myth of Koch’s this would enhance.

      • Henry Williams permalink
        September 11, 2010 \pm\30 1:12 pm 1:12 pm

        Myth as in mythos, his legend, as a poet of great craft and character.

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