Fair Use

An author of my acquaintance, who has published a number of well-regarded works of both fiction and non-fiction, has a new book coming out next year. It’s a sort of “nonfiction novel” or extended essay, giving his very personal take on what it means to live in our current high-tech-mediated, pop-culture-dominated world. Since the book is about the here and now, the author weaves in quotations from multiple sources, all recognizable parts of the mediascape we live in.

The author has fought with his publishers for months about “sourcing” these quotations. He regards them as being covered under “fair use,” but the publisher demands that he get explicit permission to use them. The publisher will not budge. And so, the other day I received a form to sign. It requested explicit permission to quote some 90 words of mine, and also required me to certify that I did indeed “own” the copyright on these 90 words. I agreed to sign the document, just to make things easily for the author who wants to quote me; but I added an addendum, stating that his use of my words is covered by fair use, and therefore does not require my explicit permission.

An additional irony of the whole situation is that, of the 90-word passage of mine that the author is quoting, 50 of these words are not “mine” at all, but rather the words of somebody else, who I happen to be quoting (with full attribution). I regarded, and still regard, my own quotation as being an instance of fair use, and so I never asked the author of those 50 words for explicit permission to quote them. I got away with this, I suppose, because I published the text in question online, so I didn’t have a professional publisher to hassle me.

All this is idiotic in the extreme (not to mention that it must be a real pain for the author to collect all the permissions his publisher has required him to get). But we shouldn’t dismiss it as just idiocy; for it shows the real dangers of the current draconian interpretations of copyright and “intellectual property.” Lawsuits, threats of lawsuits, and overzealous self-censorship by publishers in order to cover themselves against the mere possibility of lawsuits: all this adds up to a much greater danger to freedom of speech, freedom of expression, and freedom of thought, than anything the government could come up with. All thought is inspired by, and comes out of, previous thought; all writing is inspired by, and based upon, earlier writing. Without the freedom to quote, to cite, to remix and recompile, etc., there is simply no freedom of speech, expression, or thought at all.

(Note: in fairness to the author, in order to respect his privacy and to spare him unnecessary hassles, I have omitted his name, and that of his publisher, from the above).

13 Responses to “Fair Use”

  1. Gordon Potter says:

    First, let me say I completely agree with your premise and the threat to thought.

    Just out of curiosity do you believe in the possibility of an unregulated system of intellectual property? What would happen in a system of no copyright at all?

    If seems that things would move towards an economic state where it was not easy to “quote, to cite, to remix and recompile” etc. In music there would be more concerts and less dependence on records sales. Open source software developers sell their embodied expertise, etc. Corporations and publishers would move towards more fragile and idiosyncratic encryption technologies and stumbling blocks. But there would also live a parallel world of open distribution.

    I support the idea of fair use, but the concept seems flawed. Because it requires a level of parsing of the definition which puts the onus on the producers. I think what would be better is an appeal to the ethics of the audience. If I decide to clone and republish Steven Shaviro’s books as my own, beyond the level of fair use, then a properly enlightened readership should be able to differentiate and understand that. Take plagiarism for example. There are so many sources of content to plagiarize but your average student who feels the need to plagiarize is likely not sophisticated and will resort to the nearest google or wikipedia search. The nice thing is that an instructor or professor can use google too. So the blatant abuse is quickly ferreted out by the open system. But the student who is able to produce something undetectable as plagiarism in an open system, perhaps that constitutes a form of novelty.

    Would we make more progress by refusing the very premise of copyright?

  2. Gordon Potter says:

    Perhaps we need more blatant violation of fair use. I think Derrida had a serious point when he chose to quote in its entirety John Searle’s response in the so called speech act theory debate.

  3. “So the blatant abuse is quickly ferreted out by the open system. But the student who is able to produce something undetectable as plagiarism in an open system, perhaps that constitutes a form of novelty.”

    Haha, so true. I would love to see this novelty too – unfortunately, if it came by I suppose we wouldn’t know!

  4. John Brabble says:

    The author ought to be able to quote your work, footnote it, then supply an index in the back with the quoted work, where it is from, the author, etc.

    I do not see a problem with quoting something and giving credit where credit is due.

    This is NOT dangerous to free thought, to free expression.

    I write novels, plays, poetry, prose. I shoot short films and feature films that I have written. All of these things take a GREAT DEAL OF TIME, EFFORT, working and developing talent and a work ethic over a number of YEARS.

    YEARS of work.

    You do not get to use what I have created for free for your monetary gain. Period. What one needs to do is approach the creators of said work, let the creator know what you intend to do, ask for permission, ask what it is going to cost, then wait for a reply.

    People against copyright baffle me. You might think that all information ought to be free, but it is not.

    And no, we would not make more progress by refusing the premise of copyright. Period.

  5. kirbyolson2 says:

    The general rule is you can’t use 6% of a work. But with poetry every line is considered integral to the work.

    Publishers are getting more and more squirrelly about permissions, but I don’t think any of this ever goes to court. Libel cases against fiction writers are very rarely won.

    What’s there to win against an academic author whose book will sell no more than 500 copies?

  6. “I do not see a problem with quoting something and giving credit where credit is due.”–John Brabble.

    See, I quoted you, and since this forum has nothing to do with monetary gain for either of us, I’m sure you’ll forgive me for not sending you your check.

    The problem, Mr. Brabble, is that Shaviro isn’t disputing “giving credit where credit is due” (a phrase I’m sure you invented wholesale from your dreams–unless you approached the person who originated the phrase and paid them for using it and then forgot to cite them). In his own work you can find innumerable instances where he quotes an author, or even gives another writer credit for an idea if he’s not using the precise words. What is being disputed here is the concept of ownership over WORDS. The words I’m using to compose this sentence wouldn’t communicate anything unless they belonged to both of us–the fact that we can go to another text and find the meaning of them is what constitutes the possibility of their communication.

    Now hold on while I go ask for permission from Oxford’s for using all of these English words.

  7. Kirby Olson says:

    Intellectual ideas do constitute work. Some people have no work ethic, and thus don’t honor this. They just want to copy other people’s ideas and get credit for them. But thinking is work, just as building a house, or clearing a forest, is work, or planting a field is work.

    Think up almost any phrase, something like, “The tubular notion inscribed in the worm,” and google it. You’ll find only one or two phrases that are identical.

    A person’s words are as individual as their thumb print. It’s how they caught the Unabomber.

    Music, literature, dance, and other vehicles of expression should be copyrighted, but as long as you are quoting from someone else in a work of scholarship and thus giving attribution, and you are not using more than 6% of a given work, this should be legal.

    But publishers keep getting more and more restrictive. Poetry is especially difficult to quote from without permissions, since every line is considered integral to a poem. I couldn’t use even a single phrase from a Charles Olson poem in my book on Codrescu without permission. It was too much effort to write to the publisher and wait for a month for permission (a month is a cinch, but often the publisher won’t write back for a year, or won’t even write back). So, I paraphrased the line.

    That seemed like an awful thing to have to do, as I would rather have quoted the original.

    But I don’t think people should just be able to present other people’s phrasing and ideas as if they were their own. Thinking is an awful lot of hard work, and communists are stupid if they don’t realize this and honor it. Capitalism is intelligent to protect it.

  8. nightspore says:

    A while ago, L was asked by her press NOT to seek permissions if she thought a quotation was fair use. The press was explicitly interested, and had signed on with a bunch of other presses, in not setting ludicrously narrow precedents. You can certainly quote a line of poetry without getting permission. Insist on it, If the press requires it, take the risk yourself and hold them harmless.

    I don’t think the 6% number is accurate in any way. It would be absurdly too much to be able to quote from most long works, and too little for a short poem.

  9. kirbyolson2 says:

    Nightspore — obviously this depends ENTIRELY on the press. When I published my book on Andrei Codrescu the press I was working with — McFarland in North Carolina — insisted that I have permissions for every LINE of poetry. That is in fact the academic standard. And to use a single line of poetry in a commercial book will cost you a lot — especially if you plan to put it on the inside cover.

    6% is the agreed upon standard for works of prose. It is, admittedly, a lot. But you have to put what you’re using in quotes (not steal it, or present it as your own work — that would get you into all kinds of trouble).

    McFarland never asked me to get permissions to quote from prose documents. But there is a rule that you can’t quote much more than a paragraph.

    This varies with the press. But having now written three academic books and published them with three different academic publishers (my Corso book was at Southern Illinois, my comedy book at Texas Tech UP, and my Codrescu book at McFarland), I would say that you’re wrong wrt the presses at least with which I have worked.

    You cannot quote a single line of poetry without permission.

    This makes it very hard, and very dangerous, to work on poetry if you plan to do this in a book publication. They can scotch your whole work if they don’t like what you’ve said.

    So you can waste years!

    Corso gave me carte blanche before I started working, as did Codrescu. Otherwise I would have never worked on their writing.

    A poet I shall not name refused to allow me to use a single line of his poetry in my comedy book, and I had to pull the entire chapter.

    Without the permissions, the publishing house can’t go forward, even if you indemnify yourself. They are still responsible. A big lawsuit could shut a publisher down.

    It’s not what we think is reasonable that matters, it’s the law that has decided it, and the law is mostly hidden until it comes time to publish your book, at which point you must get permissions.

    You can, by the way, publish individual articles in journals about poetry, and there, you can quote as much as you like, including the whole poem! It’s only in books that this matters.

    Lay people will argue that that’s not reasonable, and I would agree, but go ahead and write a book about poetry, and see if any university publishers will touch it without permissions. It’s your life!

  10. jhanson says:

    if a poem has been recited out loud and a person hears it and quotes a line or two verbatim without referring to a particular text it would seem that this is public domain fair game

    i’ve recently run into a similar snag regarding musical performance
    it would seem that recording companies are looking at commercial obsolescence so they’re trying to force the idea of public performance
    demanding that establishments presenting live music must pay a copyright fee
    in short
    this is resulting in a dumbing down
    young people are being given the message that they can only play their own “music”
    this used to be limited to music that has actually been written out as music but now seems to apply to music one learns by hearing

    intellectual property
    like taxing the metaphysical

    this calls for clever thievery

    j

  11. Caleb Kelly says:

    I have just published a book through MIT Press and none of these issues came up. They are totally happy with quotes etc. Images were also handled in a similar way.
    It is interesting to me as someone new to the game that there is such difference between publishers.

    caleb

  12. kirbyolson2 says:

    Caleb, did you quote from songs without permission? I note that your book is about avant-garde music, so perhaps there are no lyrics cited.

    If there were any, I’d be very surprised if there were no permissions needed.

    Prose can be quoted from, generally, with no problems.

    But if you quoted any of John Cage’s poetry, for instance, I’m almost certain you should have gotten permissions.

    If not, then perhaps MIT is the go-to press.

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