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Poetic Injustice: María Kodama vs. The Lit Scene

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This is an exclusive English-language translation of the article ‘#InjusticPoética‘, originally published in Revista Anfibia.

In 2010, María Kodama purchased the rights to her former husband’s complete works for a sum of two million euros. In 2011, her lawyer accused the writer Pablo Katchadjian of copyright infringement. The punishment: an order for seizure of assets valued at $80, and a possible prison sentence.

Where does this story begin? Does it begin sometime in autumn of 2011, when Pablo Katchadjian finds a letter underneath his door and realises that María Kodama, the widow and universal heir of Jorge Luis Borges, had filed a lawsuit against him for copyright infringement? Does it begin when, having recently learned of the existence of a book called ‘El Aleph engordado’ by some young man with an Armenian surname, Kodama decides to speak to a lawyer about filing a lawsuit? Or when Katchadjian adds 5,600 words to the 4,000 comprising the original story, and then publishes the results under the title ‘El Aleph engordado’ in an independent publishing house in 2009? Or months earlier, when he jots down in a notebook: “Try fattening-up a book, like ‘El Aleph’”? Or does this story begin back in the ’40s, when Jorge Luis Borges sits down to write a story about a house and inside, a basement where a single point in space contains every other point in the universe: a point from where one makes out vast oceans, the sunrise, the afternoon, the crowded masses of America, a silver-plated spider web fixed at the center of a black pyramid, a red labyrinth (London, it turns out), bunches of stuff, snow, tobacco, veins of metal, steam, convex equatorial deserts and every last grain of sand, a woman and a young writer, a trial and the outcome of that trial about which we remain ignorant, although there it was, plain to see, in the minute point on the staircase in the house of some such Carlos Argentino Daneri, on Garay street?

***

'El Aleph engordado' - the book published by Pablo Katchadjian based on Borges' classic tale.

‘El Aleph engordado’ – the book published by Pablo Katchadjian based on Borges’ classic tale.

Towards the end of 2011, Pablo Katchadjian was typing away on his computer when someone slipped an envelope underneath his door. He went over and picked it up and read the word “Kodama”. What could that possibly mean? A week earlier he had been speaking with Ricardo Strafacce, a writer and lawyer. He thought to call him.

“I just got a letter,” he said.

Strafacce, as per usual, was at the bar Varela Varelita, one of the greats, the kind of bar brimming with conversation, simple drinks, and tattered menus, populated with politicians, artists, and, of course, writers and poets. Héctor Libertella was among the local denizens.

“Come on over,” he said.

Some time passed and Katchadjian arrived. He approached the table and showed the paper. Strafacce read it.

“This isn’t a letter. It’s a notice from the court.”

Acting through her lawyer Fernando Soto, María Kodama had filed a lawsuit against him for copyright infringement. The accusation specifically concerned ‘El Aleph engordado’. Among other things, it accused him of having modified the original story, “distorting one of Borges’ most celebrated works, turning it into a pastiche…”; of having caused financial damages to a woman, who, it should be mentioned, already had tongues wagging throughout the Frankfurt Book Fair that same year after she transferred legal ownership between Planeta and Random House publishers for a sum of US$2m; and for not having clearly indicated which words belonged to Borges and which were his own. In brief, she accused him of violating intellectual property rights as protected by subsections A and C of article 72 of Law 11,723.

***

Now Katchadjian knows all about it. He knows all about the words that sit gathering dust in just about every archive in the Tribunales district of Buenos Aires: notices, appeals, stays, lawsuits.

“I’ve learnt a lot about civil and criminal law. I didn’t know anything before. For me, it was just a black box where you inserted cases and out came sentences. Now I read the newspaper and think to myself: ‘Ah, now he could appeal that…’ Like when a sick patient is forced to learn about medicine.”

Katchadjian has been sitting for the last couple hours in the same bar where he first found out that he was being sued. Sitting beside him, Strafacce is talking on the telephone. The sun was still out when they entered the bar at three in the afternoon. Now it’s six o’clock, the customers have all come and gone, and the streetlights are coming on. The two of them look like a pair of celebrity authors at the international book fair, journalists all waiting to have their turn for an interview. And even though it’s not an elegant reception hall, or Recoleta, still the journalists keep coming from every sort of media outlet. A reporter from Brazil’s Folha de São Paulo is waiting her turn at one table. Nor is she the only representative from the foreign presses: El País, The Guardian, and many more are also there. The waiter is already ready with a coffee for the next interview. The coffee comes served with signature foam art, a fact Katchadjian and Strafacce like to highlight before starting each interview.

In the last six years since ‘El Aleph engordado’ first appeared, and in the last four since the first lawsuit, there have been a number of reviews of his books. The critic Augusto Munaro, for example, stated that Katchadjian had managed “to significantly alter the act of reading”. Katchadjian rarely does book signings.

Katchadjian was born in 1977. He first broke onto the scene in 2004 with ‘Dp canta el alma’, a book of poems published by Vox, a publishing house known for maintaining a carefully curated catalog. The course he teaches at the Communication degree of the University of Buenos Aires, Expression I, comes highly recommended by all his students. Professors often cite his undergraduate thesis as an example of how to write a proper essay. The thesis dealt specifically with the idea of adventure as a literary genre, in which he wrote the following: “Adventure is an ambiguous power, where the same guiding principles can be championed to uphold capitalism or to promote a complete rupture with the existing order.” Among the books he’s authored, there are ‘Qué hacer’ and ‘Gracias’, and special mention goes to his literary exercise ‘El Martin Fierro ordenado alfabéticamente’, wherein he restructured the verses making up the national epic in alphabetical order from A to Z.

He wears a beige sweater and keeps the table clear of papers, an old scuffed mobile phone the only thing keeping him company. He speaks calmly and wears a pair of plain, thin-rimmed glasses. The moustache he’s had for years is the only thing piercing through an otherwise subdued image. Stylists would call it an imperial moustache: bushy, sculpted into pointy tips that curl upward. He seems tired but still manages to make a few jokes. Several times during the last few years he’s asked himself: “When will this all end?” In fact, at that time there seemed to be just one more step left, an acquittal decision, when suddenly the whole thing started all over again.

And that series of interviews you just had, how did that go?

“For the first three and half years, from 2011 until now, I just tried to treat it like a legal formality that I eventually had to take care of. I didn’t do anything.” His hands hardly move as he talks, except occasionally to stroke his chin or to scratch at his neck. “Now that I’m on trial I decided to say what needed to be said and make people understand, since there’s been a number of strange versions of the story circulating, like that I did it all on purpose, that I was looking for a scandal.”

Borges and Katchadjian (Illustration by Hernán Vargas)

Borges and Katchadjian (Illustration by Hernán Vargas)

***

Katchadjian concludes his book with the following postscript:

“The postscript, dated March 1st, 1943, does not appear in the original manuscript of ‘El Aleph’; written after the story itself, it represents the first reading of Borges’ own story. It is also the only part of the original that remains intact throughout this fattening-up exercise. The other 4,000 words were turned into 9,600. This exercise in fattening-up the text had one single rule: under no circumstances alter the original text, not words, not commas, not stops or structure. That means that Borges’ original text is completely untouched, although entirely traversed with my own, in such a way that if one wished to they could go find in it the original Borges text. Regarding my own writing, while I never intended to hide behind Borges’ writing as if it were my own, I also never meant for my style to stand out: I feel that the best moments are those when the reader can’t tell who wrote what.”

‘El Aleph engordado’ was published in 2009 by Imprenta Argentina de Poesía. In total, 150 copies were printed, of which Katchadjian gave away 100 as gifts. Of the remaining few that went on sale, the selling price was set at $15. The book itself had a simple cover, nothing flamboyant: a light blue background with black lettering. The Spanish author Javier Cercas found the project to be completely brilliant and concluded: “What first appeared an attempt to murder Borges is in fact a great homage”. César Aira was also among those that championed the work: “Here we have a famous story that has been expanded, but that story happens to be ‘El Aleph’. And the choice is completely justified, just as it was with Martín Fierro and the case of national memory; here too we find the latent case for expansion at the heart of el Aleph, inside the Aleph itself,” wrote the author of ‘Cómo me hice monja’ in Otra Parte magazine. At the time, the book was critically acclaimed.

“It took me some time. I was careful with it. It’s a piece of writing. Not a gesture. Not a joke. I printed it, I edited it. For me it’s a book that I wrote. It was a worthwhile thing that I spent my time on. I think the book is good. I wrote it, I published it, and I take responsibility for it.”

It never occurred to you that Kodama might sue you?

“No. I don’t spend my time thinking about Kodama. No one does. I didn’t feel like I was doing something wrong, or that I was harming anyone. No one ever even brought it up. If someone at the time had asked me, I might have answered that she might not like it. But how much can one angry reader do? I didn’t publish Borges’ story. I published my own novel. It’s different. Plagiarism isn’t a literary concept. It’s a legal concept, whatever that may be, but there’s nothing literary about it. I was just thinking about making literature.”

***

Apart from the curious fact that Mick Jagger is sighted reading one of Borges’ books (‘Ficciones’) in the ’90s film Freejack, there seems to be little left that hasn’t already been said about Borges. Nevertheless, in front of Court No. 3 there was one question that still had to be answered: What proof was there that he, Jorge Luis Borges, had in fact written ‘El Aleph’?

So it followed, Kodama’s lawyer Fernando Soto had to provide as evidence issue 131 of the magazine Sur, where the story first appeared in 1945. A copy of the inscription must have been left with the Registry of Intellectual Property in 1940. All to prove that it was “a matter of public knowledge” that ‘El Aleph’ was in fact written by Borges. Whether mockingly, casually, or ironically, both sides seem to agree on that particular point.

With the case already begun, Strafacce wrote the defence that would be presented in December of 2011 in the Investigating Court No. 3, with Judge Guillermo Carvajal presiding. He brought along a copy of Katchadjian’s CV, a copy of ‘El Aleph engordado’ as well as a number of stories and quotes that effectively gave substance to a literary tradition in which the defendant was participating. He stated over and over that there was never any intention to plagiarise Borges.

Amidst rulings and appeals on the part of Kodama’s lawyer, the story can be summarised in the following manner: from the outset, the judge halted the legal proceedings against Katchadjian on the grounds that there was no malice involved (he grasped that there was nowhere any attempt of false attribution of authorship, the postscript having made that clear). Fernando Soto, Kodama’s lawyer, appealed and the Appeals Court upheld the suspension of the case. So Soto appealed again. This time at the Appeals Court the tables were turned. They found Kodama’s lawyer’s arguments persuasive. The indictment arrived on 18th June, placing a seizure on his assets for $80,000.

When there’s a murder, the forensic specialist picks apart a cadaver. They look for signs throughout the body, what stories it can tell and what findings it might have to communicate to the courts. A literary forensic specialist also picks apart a body, of the literary kind. Elsa Drucaroff is a writer, critic, and she’s also worked as a literary forensic specialist. She knows a thing or two and has been responsible for evaluating similar situations.

El Aleph is a classic Borgesian tale (Illustration by Hernán Vargas)

El Aleph is a classic Borgesian tale (Illustration by Hernán Vargas)

“In Katchadjian’s case, it’s just a game of wits. An open door, completely apparent for anyone to see, he just picks up someone else’s work and makes his own intervention. I don’t think that constitutes plagiarism. It’s the problem with the kind of savage capitalism that for some time now has affected the culture industry,” she says. “If he’d done the same with a classic, nobody would have been irked because no living relative has the standing to demand thousands of pesos. However, he did it with Kodama, and with a writer that forms part of a booming industry. But from a literary and theoretical perspective, it’s not plagiarism. Just the opposite, now more people than ever know about ‘El Aleph’, it’s great advertising. This doesn’t hurt Borges at all. Quite the contrary.”

***

The literary scene is in an uproar. Facebook and Twitter are the battlefields where, in Damián Rios’ own words, there’s a guerrilla campaign currently underway. The issue starts to catch on, a group is started on Facebook that features as its avatar the flared moustache of Katchadjian, and soon the whole thing snowballs, turning into a letter of support with signatures from writers of all walks, ages, styles, and ideologies. Martín Kohan, Fabián Casas, Maximiliano Tomas, no one can be left out. Leopoldo Brizuela from his Facebook account proposes a game: list all the works by Argentine authors that in one way or another expand or reformulate another literary work. ‘La condesa sangrienta’, by Alejandra Pizarnik and Valentine Penrose’s ‘La condesa sangrienta’; ‘La señora Macbeth’, by Griselda Gambaro and Shakespeare’s ‘Macbeth’; ‘Help a él’ by Fogwill about ‘El Aleph’ are just a few that make the list. The climax finally comes, in front of the National Library, in a public demonstration demanding that the charges against Katchjadian be dropped. Capping off the night is a debate that includes the author of ‘El Aleph engordado’, César Aira, María Pía López, and Jorge Panesi.

“It’s the best tribute Borges has received in a long time,” says Rios by telephone. “It’s Pablo’s text. Not Kodama’s. We want to reverse the whole line of thinking. It wasn’t Pablo that stole Borges’ text. It’s that Kodama demands ownership of a text that doesn’t even belong to her.”

You wrote that Katchadjian’s text is even better than the Borges original. How do you mean that?

“He made Borges’ story into a small nouvelle, remarkable considering that Borges’ forte was always the story, the economical. Contemporary Argentine narrative is looking to other models now: North American writers, Carver, John Fante, Southern writers, and there Pablo was thinking about Borges. It’s something that happened to many writers, but in earlier generations: Piglia, Aira, Saer, Fogwill.”

Simultaneously, the legal question catches fire with organisations like Fundación Vía Libre, which has long been attempting to put the topic on the docket for discussion. “The idea of authorial rights is undergoing a crisis,” says Beatriz Busaniche, an academic specialist on the topic. Motivated by what she perceives as the great injustices perpetrated by intellectual property legislation, Bunasiche organised a masters program dedicated to the subject and that defends the right to democratic access to culture.

“Every author has the right to enjoy the benefits derived from their work, but that sentiment has to be brought down to earth in order to see its legal applications. The general remarks from the International Covenant on Economic, Social and Cultural Rights of 2005 states it clearly. Lawyers try to avoid it, because what the text says is that there exists a fundamental right of author, but that isn’t equitable with intellectual property rights. The purpose of that remark is to make sure that authors are able to secure a dignified living, without guaranteeing a monopoly for the author’s whole life nor that of their heirs. If there existed such a kind of human right, it would be the right to Borges, which also necessarily implies the death of Borges.”

How does Argentine intellectual property law compare to that in other countries?

“It’s horrible. Argentina faces the worst possible scenario, because it refuses to talk about the subject. Intellectual property is still a sacred cow here. It’s a debate that’s over before it’s even begun. In Chile they at least have the right to parody, and library rights. These modern regulations exist to be made more flexible, not more rigid. We aspire to guarantee the other human right, the right to access and participation in culture.”

***

Kodama is myopic but doesn’t use glasses. She’s diminutive. When she does grant interviews, journalists portray her as affable, full of courtesy so long as you don’t cross any lines. She first read Borges when she was ten years old, ‘Las ruinas circulares’. Many years later she met him. They fell in love. Today she’s one of the most controversial figures of the publishing world. The universal heir of Borges’ intellectual rights is a heavily criticised figure. They make her out to be the Cruella deVil of Argentine literature, the unmoving guardian of the tower. The legal frenzies she’s become known for is her way of guarding over the work of her former husband. Once, she took French critic Pierre Assouline to court because he had suggested that she obstructed the French publication of one of Borges’ books. Another time, she set her sights on the Spanish author Agustín Fernández Mallo and his experimental book ‘El hacedor (de Borges), Remake’. He was never brought before the courts. The publisher Alfaguara agreed to withdraw every unsold copy from the market, making clear that while it respected the legal issue, it also stood behind the literary gesture that the work represented. Later came the head on collision with Taringa! and the author Juan Gasparini. And that’s not all.

Alejandro Vaccaro is the head of the Argentine Writers Society, as well as Borges’ biographer. He’s had his own judicial run-ins with Kodama. She accused him of slander for an article published in 2006 in the magazine Veintitrés. The title of the article read ‘Borges. The sickening fight for his estate’, in which he talked about her handling of the author’s estate and included the sentence: “This woman has altered Borges’ lifework in order to settle personal disputes”. Kodama sued. The case made it to the Supreme Court, where Kodama had to pay for Vaccaro’s legal representation. He says that at this point, such situations don’t faze him:

“True, it’s uncomfortable to go through it all: meetings, lawyers, investigations, but if you can keep your cool, like I did, it turns out fine. In Katchadjian’s case, I don’t think there was ever any intent to harm Borges’ work. I myself might not have written it, but that’s just a literary matter, although it is something new: for me it’s homage.”

While all the commotion is happening, Kodama is in Japan as an invited guest at one of that country’s universities. Fernando Soto says that he hasn’t spoke with her recently, that she doesn’t use email, and that he’ll speak with her when she returns to Argentina. As she’s done time and again, the widower and president of the Jorge Luis Borges Foundation prefers to remain silent and leave the talking for the courts.

***

Straface is wearing a polar fleece and his hair is unkempt. On the table are a few scattered papers and a copy of ‘El Aleph engordado’. Whenever he needs to speak with Katchadjian, he goes out for a smoke. He’s tall, 55 years old, and has spent years working as a writer and a lawyer. He likes to joke that thanks to the lawyer, the writer is able to eat. He spent ten years researching and writing about the life of Argentine writer Osvaldo Lamborghini. He did it all without a grant or any kind of institutional affiliation. He also writes novels: he’s published ‘Frío de Rusia’, ‘La Boliviana’, ‘El Parnaso Argentino’. He presents the books right there in Varela Varelita, the bar with no art objects, no mood lighting, just the fluorescent tube lighting and the red tablecloth with plastic coverings. He says he wants to start moving away from the legal profession.

“Maybe this will be his last case,” says Katchadjian.

***

There are a pair of plaid upholstered sofas inside the waiting room in the offices on Av. Corrientes, Fernando Soto walks in from the street, suitcase in hand, and says hello. He’s wearing a brownish suit, the same color as his tie. Inside his offices, he gets settled in and then says to come in. He’s spent 30 years in the business and has served, among other cases, as the lawyer for the victims of the Cromañon nightclub fires. He often appears on television speaking about topics related to his specialty, criminal law. His profile photo on Twitter shows him in the studio of C5N.

Jorge Luis Borges (Illustration by Hernán Vargas)

Jorge Luis Borges (Illustration by Hernán Vargas)

There’s a large window in the office, a desk cluttered with papers but still allowing for small curios, and a library full of those imposing law books, and just to one side of an old plaster Geniol advertisement: a small figurine, the head of Borges.

-Did you read much Borges when you first met Kodama?

“I’d read Borges at university, and later when were doing an investigation because the publishers had warned that several of his prologues were being sold and reproduced in newspapers without authorisation… when I got down to reading those texts, I thought ‘This is incredible’, and I went back to reading Borges.”

Soto knows when to speak passionately, how to wait for the silence that can serve as a buffer between a question and its response. He speaks with confidence. He controls the cadence of his voice. He always meets your eyes.

“Part of María’s inheritance is to protect Borges’ work. It’s not for nothing that they invite her from every part of the world to speak about the literature of Borges. She guards the lifework of Borges in its entirety so that scholars can study it properly. A painter has their paintings, a sculptor their sculptures, whereas an author doesn’t have anything tangible. It’s the idea, or better, the words. That’s his work, the words are what have to be preserved.”

– How did she find out about Katchadjian’s book?

“I don’t know. She’s always asking me about different things, so she brought me the book and said: ‘Take a look at this’.”

He makes a gesture with one hand and leans back in his seat, but quickly sits upright and clasps his hands together. He’s not smiling anymore.

“She’s very disturbed that Borges’ literature has been transformed and disfigured. The claim isn’t that he copied and published Borges without authorisation, which is actually the case, but that the book is called ‘El Aleph engordado’ by Pablo Katchadjian. It isn’t called ‘Borges’ El Aleph, altered’. You have to read the entire book to understand that what you’ve just read aren’t the author’s own words. Even if you were an expert you wouldn’t realise it. There will always be his text, which is what he wanted and it’s what he got, but it’s never made clear to the reader, not even in the postscript, which is Borges’ text.”

***

Katchadjian is coming back from a workshop he taught in Tucumán. Back in Buenos Aires, he’s answering the telephone while talking to his two-year-old son, who meanwhile is trying to tell him something.

“Business as usual,” he says. “Now it’s just a question of waiting.”

***

The year is 1978. The camera falls on a lamp, a window, and a sofa where Borges is seated, speaking with some difficulty: “I don’t like what I’ve written. That’s to say, perhaps I like a few stories, some poems, a line here or there, which, if a poet hopes to live on, in a few lines, that should do it. He can be happy with that. Everything else was just a draft for that one necessary line, and if that line manages to form a part of the Spanish language, as is my case, if the author of those lines is forgotten, just some South American poet, born in 1899 in the centre of Buenos Aires, all the better. I aspire to anonymity. That’s the greatest kind of fame.”

Translation by Nicolas Allen.

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