Heart of the City Archives

How I spent my summer, or:
Why I sued a prominent SF librarian
for plagiarism and how I won

Here's a topic I didn't think I would have to address, as it relates to a matter that was swiftly resolved in court several weeks ago, but many of you have read details of Donat v Van Buskirk in other outlets. The San Francisco Chronicle recently ran an item that named me as the successful litigant, but it also used the important journalistic expression, "For the record," yet did not reflect the record in the matter. I would like to lay out my own record here, in my own outlet, then let it go.

In April of 2003, I was approached by a gentleman I knew only by reputation in the gay community. Jim Van Buskirk, the Program Director of the James C. Hormel Gay & Lesbian Center at the Main Library, said he enjoyed MisterSF.com and would like to talk to me about creative ideas. We met sometime later at the library at 100 Larkin Street. Van Buskirk said he was working on a book about cinema history in San Francisco and that my web site, with its extensive catalog of SF cinema locations, was an obvious resource.

I offered my support and encouragement. I told Van Buskirk how much fun he was going to have with the hard work of tracking down well-known and forgotten San Francisco locations in movies and television shows. I told him how I studied film noir entries that hadn't been seen in up to 50 years, and yet I tracked down the locations based sometimes only on the slope of a hill. (One day I set out to find the house where Cloris Leachman made "Phyllis." It was pouring rain that day. I only had a grainy video and a hunch. Though I was set for adventure, the upshot of that story is that I found it in 15 minutes! Other locations have taken weeks and months of off-and-on hunting to find.)

Van Buskirk agreed during the meeting, and also in a series of emails from his library email, to credit MisterSF.com directly for previously unpublished items, and to comply with terms of fair use. "Absolutely! We wouldn't dream of doing otherwise," Van Buskirk wrote.

In March of 2006, I purchased a copy of "Celluloid San Francisco" by Jim Van Buskirk and Will Shank (Chicago Review Press) at the Green Apple Bookstore on Clement Street. Initially, I thought it was a nice book; smart cover, good breadth of films in the index, replete with photos. However, upon closer inspection, I was horrified to find that not only my research, but also my writing was presented as the authors' own.

I alerted Van Buskirk to my concerns via email. He said that the publisher had deleted attributions during production and so he was sorry. To my astonishment, he invited me to post a disclaimer on MisterSF.com stating that my material was the original. I told Van Buskirk that it was a bigger problem than that and showed him evidence of direct copying. He agreed to meet with me along with his co-author, Will Shank.

At this brief face-to-face meeting, I suggested that my name should be added to the byline of Celluloid San Francisco and that I should share in the receipts. Van Buskirk and Shank apologized, but said they had no remedy to offer. I invited them to contact me if anything came to mind that was possibly somehere between my suggestion and no suggestion. Not hearing a word from the authors more than a month later, and with Van Buskirk and Shank set to officially launch their book with an event at the library, I decided to take Van Buskirk to court.

Since I had never sued anyone before this, I found the trial in Small Claims Court fascinating. The arbiter, Judge Ollie Marie-Victoire, is a well-known figure in San Francisco jurisprudence. She administered the oath of office to Supervisor Harvey Milk, presided over Anton LaVey's palimony hearing in the Superior Court, and signed the order that closed the bathhouses in San Francisco. Judge Marie-Victoire once dismissed the charges in 300 prostitution cases because the cops couldn't justify why they didn't also arrest the johns.

I presented a concise and thorough email history and a substantial electronic archive of previously published stories. I argued that Mr. Van Buskirk had abdicated his responsibility by allowing the work to be published - if that were the case - without the agreed attribution, and that nothing I had heard explained direct copying. Van Buskirk argued that Small Claims Court was the wrong forum in which to resolve the matter. He also stated that the publisher was willing to publish corrections in future editions - if any. Now, correcting the Chronicle's uncorroborated for-the-record statement that Van Buskirk blamed his publisher for "the errors;" No evidence of any mitigating production error or errors was presented nor was any offered to Judge Marie-Victoire by Van Buskirk.

The judge declined to hear from Mr. Herbert Gold. The renowned novelist and literary icon of Russian Hill was present at my request to testify, at the judge's discretion of course, as to what rises to plagiarism and what are the rights and responsibilities of authors and publishers. Judge Marie-Victoire begged off, thanks-but-no-thanks style. (Some years ago, Gold provided expert testimony in a local obscenity trial centered around Henry Miller's "Tropic of Cancer." That case was resolved in favor of Miller et al because, says Gold, the bookseller who sold the volume thought it was an astrology book!)

Judge Marie-Victoire ruled in my favor on a finding of plagiarism and awarded the maximum, $7500; I thought that would be the end of it. If it continued, I looked forward undauntedly toward an appeal. When an article appeared in the gay newspaper, Bay Area Reporter, Van Buskirk, through his attorney, denied that he was responsible for plagiarism, said that the misappropriations were the publisher's fault, and added a new defense that I had not yet heard, that a "computer glitch" had deleted quotation marks.

(Zak Szymanski's BAR article is fairly accurate regarding basic facts of the case, though Van Buskirk's raft of imaginative explanations for plagiarism goes unquestioned by Szymanski, as does Van Buskirk's false portrayal of himself as having leapt to the fore with a menu of remedies. In addition, Szymanski refused my multiple requests that he interview Judge Marie-Victoire and others present at the trial such as Gold and Ms. Peggy Dohrman. Like Gold, Dohrman is above reproach. She is a prominent figure on the San Francisco cinema scene who, as sales director for Loew's at the Metreon created Chief's Day to give thousands of at-risk kids a free movie and some non-crisis contact with police officers and fire fighters from their communities. In refusing to even speak with them, Szymanski dismissed Gold and Dohrman as "your people." However, as further evidence that his aim was to rehabilitate fellow BAR contributor Van Buskirk's image, Szymanski failed to disclose that he is a past featured reader at SFPL/Hormel Center programs, having been booked by Van Buskirk for readings of work by Michelle Tea and others. I, on the other hand, hoped to educate the public. After I suggested he get background information on legal aspects of plagiarism from the BAR's own attorneys, Szymanski said they were "too busy with new clients" to discuss it. - HD)

Van Buskirk continued to promote his book and unfortunately told members of the bookselling community and a local private library that it was all a mistake, that the judge had ruled wrongly, and that he was appealing. Privately, Van Buskirk had decided to pay the judge's award because, his attorney said, Van Buskirk wanted to "do the right thing." To that end, I asked Van Buskirk to put an end to public denials about computer glitches and outrageous excuses that damage my reputation by suggesting prevarication or frivolity on my part in regard to this serious issue, plagiarism.

Let me explain this; I have gone out of my way here to avoid celebrating my victimhood with wrenching cliches about what it felt like to see my writing in someone else's book. A painful lesson I have learned is that my beloved San Francisco is so filled with cranks, sitting at coffee houses - talking about how everyone from George Lucas to Oliver Stone stole their ideas - that when someone actually is injured it can be virtually impossible to garner support from a general community. Without a top lawyer and/or alignment with an arts organization, you might as well sit down and order a Macchiato. That, the second part of this experience, was far more excruciating than the discovery of the infraction and the entire trial.

"You have to distinguish yourself from the people at cafes," I was told by an observer of SF politics for 30 years, and I agree. For the record, I distinguished myself by dragging someone into court who represented himself as a leader in the community and then co-opted my work. I proved my case in court and vindicated myself against the stigma attached to being a litigant, a victim, and an independent writer. It was extremely difficult. I did it on my own, for myself and for independent writers and aritsts everywhere. And now I'm done with the affair and its unpleasantness.

I consider Mr. Van Buskirk's obligation to me to be met. While I may have to answer questions from the City or the Library regarding the matter, I do consider it resolved to my satisfaction. However, Chicago Review Press shouldn't misconstrue that personal forgiveness as an exemption from its own legal and moral obligation not to profit from plagiarism. I am trying to set a good example for my readers. Van Buskirk's publisher should do the same. Now, go play nicely while the sun is here.

Update! 9/29/06: Van Buskirk's attorney and publisher jointly reject B.A.R. sympathy articles.

Update! 12/21/06: Celluloid San Francisco is listed as "out of print" and is withdrawn from further sale or distribution by its publisher.

Update! 08/16/07: Van Buskirk quits SFPL Hormel Center after second scandal in less than a year.

Related: Celluloid San Francisco Strykes Back

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