Permission Culture: Want To Quote A Single Sentence In A Book? Pay Up!
from the copyright-law-at-work dept
Benjamin points us to yet another (and another and another) example of copyright law gone insane. It involves Kyle Gann, a music professor, composer, author, etc. who was working on his latest book, but had to drop an entire section because he wasn't allowed to quote short sentences that are, themselves, apparently considered works of art, without getting permission from the original authors:I've been trying to get permission simply to refer to Fluxus pieces like La Monte Young's "This piece is little whirlpools in the middle of the ocean," and Yoko Ono's "Listen to the sound of the earth turning." And of course, Yoko (whom I used to know) isn't responding, and La Monte is imposing so many requirements and restrictions that I would have to add a new chapter to the book, and so in frustration well past the eleventh hour, I've excised the pieces from the text.Yes, it's become so impossible to quote a single short sentence, that it's just not worth doing at all. Welcome to permission society. Some copyright system believers may claim that this is just the market at work, but it certainly seems a lot more like an undue restriction on freedom of expression at the hands of copyright law. I can't see, frankly, how using copyright law to ban such writing isn't a clear violation of the First Amendment. He even wasted a bunch of time thinking about ways around this:
Some of these pieces are too brief to refer to without quoting them in their entirety. How do you use Nam June Paik's "Creep into the vagina of a living female whale" as an example without giving the whole piece away? How am I supposed to refer to it: "Creep into the vagina, etc"? Call it Danger Music No. 5 and tell you to look it up? Paraphrase it: "crawl into the birth canal of a matronly member of the order Cetacea"? And if the copyrights are held by unreasonable people who can hold your book hostage to their detailed demands, then it's just time to find a different research area. The situation is absurd, somebody under whatever questionable chemical influences scrawls seven words on a piece of paper and 50 years later I can't refer to that piece of paper without paying someone some money and following their prescriptions.Now, I would think that Gann would have a pretty clear claim to fair use if he were to use the phrases he wanted, but it appears his publisher doesn't even want to bother with the potential battle -- and since fair use is (as copyright maximalists gleefully love to remind everyone) merely a "defense" rather than a "right" (which isn't entirely accurate either), the only way to guarantee that this is fair use is to (a) get sued and (b) have a court rule on it -- something that no one should have to contemplate, just while writing a book on art. What a shame and a loss. Yet, it's what this world has become thanks to out of control copyright law and this sense of "permission culture," where even free expression now requires a request for permission and an open checkbook.
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Filed Under: art, copyright, kyle gann, permission culture
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Seeds
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Re: Seeds
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(a) get sued and (b) have a court rule on it --
Would you please just *do* this for the betterment of society as a whole, or would you at least propose this on a grand scale to those with some money to burn (Soros?)
Maybe do a speech at TED about it?
Basically, someone(s) needs to step up, use this material in a fair use context and GET SUED, so we can get some precedents established.
I'd do it but I'm broke.
CBMHB
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Re: (a) get sued and (b) have a court rule on it --
Mike, I promise that if you can find a good case to persue I will (and the 6200 websites I do work for) would also support the effort to get a better defined Fair Use court decision in place. I have over 6 years experience as a SEO/SEM and would pay up to $400 per month for Adwords for the cause to just get some better defined rulings in place. Even if we lose I would have no problem as long as you can work within a defined set of rules. I am sure I believe the same as many people that even if we don't like the rules as long as we can understand them we can work within them. Right now you just have to hope you didn't miss some arcane decision that will destroy you.
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Re: (a) get sued and (b) have a court rule on it --
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As long as we're at it ...
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Re: As long as we're at it ...
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Re: As long as we're at it ...
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AP-ish
It's kind of the "copyright maximalists" to point out that fair use is a de facto defense rather than a right. IMO, they've pointed out a problem that needs rectifying.
Fair use SHOULD be a right. Fair use, to date, appears to be a defacto affirmative defence only. Now we know what to write our legislators about.
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Publisher conflict of interest
As much as I hate what "intellectual property" has become in today's world, the original idea for promoting the progress of culture was a good idea. It just depended on copyrights (and patents, etc) being held by reasonable people for a reasonable length of time. We've reached the point where most copyrights and patents are being held by completely unreasonable corporations for excessively unreasonable time periods.
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Re: Publisher conflict of interest
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Nothing else to share w/the class there, Sparky? Just going to go with saying the utlimately obvious, non-informative, mean-nothing comment route, huh? I just gotta try my hand at that:
It's called Fair Use vagina-face, deal with it.
....wow, that was exhilarating. I hereby announce, from this day forward, I will no longer make long-winded diatribes in response to points of view I disagree with. I'm going with this anonymous coward's plan, mis-capitalization and all.
Idiot.
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I just hope Patent Mike isn't around.
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Re:
Who is this "Copyright Mike", that you speak of?
Is it Mike Masnick, the man who runs this blog?
Why, I think it may be!
@MikeMasnick, I think this would be an appropriate nickname for you. Just think, when you get an article /.-ed or something, they could write "Copyright Mike wrote...", and instantly everyone would know who, instead of writing "Mike Masnick over at Techdirt wrote..."
It would be amazing.
I think we need to coin this nickname for you. Seriously.
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nUKES...
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Re: nUKES...
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let them be forgotten.
Don't write about them.
Don't talk about them.
Don't educate the next generation of artists about them.
Let their art fade with time and be ultimately forgotten. If they want to be unreasonable, let them, and the world will go on just fine without them.
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creep into the...
Yet another story of artists condemning themselves to the dustbin of history, dying a slow, increasingly obscure death. All for refusing to be mentioned without being paid off first.
Also, I think we just found a new location to relegate copyright maximalists.
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Well, there go all the term papers I plan to write.
Just to see if people will really believe you have to get permission - academia or not.
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will it ever came to piracy being seen as a act of a hero willing to risk jail over feeding the evil for safety
*burns 2$ in fornt of DanOfSoCal*
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The author, Kyle Gann, neglects to mention precisely why he can't quote these short-phrase works of art. He implies that it's because of copyright law, but of course between fair use and the limitation on copyright law that it does not protect short phrases that is probably untrue.
It might be because of Gann's own interpretation of copyright law - he is seeking permission (which he may not need), and the rightsholders are being pains in the ass about it.
It might also very well be Gann's publisher's interpretation of copyright law. Having gone through this with a major publisher, I can tell you that they do care about copyrights and do want you to get permission for including someone else's work. They are generally reasonable about it - a short quote, for example, properly cited, won't cause anyone alarm (and they usually have guidelines as to how much you can quote before you need to worry - 175 or 250 words or thereabouts).
Publishers do understand fair use in that context, but they are also 1) conservative and 2) recognize that, as commercial publishers of commercial work, they are already down a peg on the "purpose and character" fair use test. As such, they tend to adopt a "better safe than sorry" model.
Ignoring all that, this case seems to be unusual in a few other regards. First, the author seems to be writing a book about John Cage. Cage, or rather his estate, has been involved in some of the more ridiculous copyright contortions seen. The instances where he wants to copy a sentence or two seem to be works where the entire work is a single sentence. It would not surprise me to find out that an "artist" who considers a single sentence sufficiently profound to need protection is especially apt to sue someone for copyright violation of the same single sentence, perhaps declaring the act to be some sort of avante-garde performance art. Unfortunately, the legal system is, in nearly all cases, reticent to remove someone's right to sue. Due process and all. Some states and other areas are enacting anti-SLAPP laws that greatly reduce the threat posed by such frivolous lawsuits.
So, even though publishers can be very (perhaps excessively) touchy about copyright issues, they may be justified in this case since the particular artists involved--if they're anything like Cage or Cage's estate--may be in a camp that will cause legal trouble for the publisher just because they can.
I can provide a little information about what the process is actually like in the nominal case - when you're not dealing with fringe artists, fringe works, and an author or publisher who seems ignorant of or unwilling to negotiate on copyright.
Getting permissions to use others' work in a book of yours is, assuredly, a minor pain in the ass. You have to be diligent about where you used the work of others. I'm not sure that requiring a small bit of diligence in this regard is a bad thing; we've recently seen a high-profile example of what happens when you don't carefully keep track of these things.
You then have to get the copyright-holder's permission. Most people are quite friendly about it. If you can't contact the author directly, there is nearly always a readily available rights and permissions address, phone number, or website in the source you're quoting. They generally require a little paperwork and sometimes a small fee ($20 or $30) for unlimited commercial publication. They may also require a disclaimer in the front of your work.
Some people and publishers are not reasonable. One particular dictionary wanted several hundred dollars per definition. The solution to that was simple enough: use different definitions. Another institutional copyright holder requested a nearly page-long disclaimer for a single figure. They won that round. I was particularly amused by this because my opinion of this particular institution was that it was full of gits, and this experience did nothing to dissuade me from my opinion. In 20-30 sources, though, these were the exceptions.
In the end, this minor pain in the ass doesn't rise to the level of a condemnation of the entire system. The system could be more efficient (most publishers still want you to use--horrors!--written letters and physical stamps and such), and things would be even easier if there were some sort of compulsory mechanical license for written and graphical works. Fair use could be increasingly clarified by the courts. But to claim that things are "out of control" is a little histrionic.
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I don't know. As someone who believe strongly in the First Amendment, the suppression of free expression thanks to the presence of federal law strikes me as quite problematic.
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How is this even relevant to this discussion?
You have no idea if the law is suppressing Gann's expressions, and it seems neither does Gann.
It's not clear that 1) these "works" are even covered by copyright, nor 2) that Gann's uses are not fair use. It's not even Gann's expressions that are even on the table as being possibly suppressed, it's Gann's use of others' expressions. Gann doesn't even seem to be that repressed, seeing as he includes these works freely in a blog post.
Nearly nothing, not even the First Amendment, can protect Gann from getting sued - frivolously or otherwise. It can prevent him from LOSING that lawsuit, but it cannot prevent him from being sued.
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@ Doctor Strange
If we do not know if the law is suppressing Gann's expressions, and Gann doesn't either, the law has failed totally and become useless. For there to be a question concerning such a basic point is laughable. And if the only way to find out is to initiate a suit, at the cost of one's self or the opposing party...this is even less acceptable.
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And the fact that he can be sued and not have the case dismissed outright is problematic as well.
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copyright law
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Fair Use idea?
Perhaps we could petition to setup a legally recognized organization with the ability to determine "fair use."
Basically send in a brief and have it ruled preemptively as fair use before publishing/implementation and therefore exempt.
Admitedly, as an economist I recognize that this places significant friction in what otherwise SHOULD be a rather frictionless process.
HOWEVER, preemptive rulings will shut up those who sue at the drop of a hat. If we implement the right (requirement) of a court to fine those who bring suit against the party who obtained preemptive fair use, it WILL dampen the random suing of individuals by presumptive "rights owners."
Essentially, we can use the "chilling effect" in the opposite manner, where people become reluctant to sue under the presumption that prior fair use was already obtained and thus that they face an automatic fail.
Since the use would be determined by a legal body, there could be no belly-aching about "enabling rampant file-sharing," since it would already be denied in such cases (except in rare circumstance) from fair use.
ON THE OTHER HAND, it would prevent the RIAA, MPAA and various record companies from being so triggerhappy in gunning for derivative works in an attempt to shut them down.
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Who loses?
Of course I wouldn't have even thought this would ever be an issue. I cited music sources all the time in college. I couldn't imagine having to pay for them. I think fair use is clearly on his side. Shame the publisher got in the way. All the publisher needed to do was say, "go ahead, I dare you, sue me."
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It is fair use.
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CwF+RtB ideas
I am a fan. You like fair use, I like fair use. Now we have a connection.
Every penny of a donation will go to defending fair use in a court case. Now there is a reason to buy.
"You may say I'm a dreamer..."
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