WSJ Opinion Highlights The Problems Of 'Permission Culture'

from the that's-not-how-the-world-works dept

A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the "permission culture" we've built up around copyright today. Often we'll discuss some of these things in posts, and defenders of the existing copyright regime will say "well, it's no problem, because you can just ask for permission" (here's an example of that kind of thinking). Of course, the reality is that it's not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it:

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect....

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.

Woodlief talks about his own experiences trying to quote a single eight-word line by songwriter Joe Henry in his recent book, and the fees were simply ridiculous:

But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests --or theirs--are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?

Now, there are some problems with the article, some of which are aptly pointed out by Christopher Harbin. For example Woodlief suggests that copyright is about guaranteeing income to creators, when it's actually about creating incentives for creators to add to the public domain. He also takes issue with the lack of recognition of the overall benefit of the public -- and no mention at all of fair use. Specifically, Harbin points out that with Joe Henry this is a clear fair use situation:

One line from one song that doesn't hurt the market of Joe Henry's song is fair use, bud. You don't need to seek permission because you own it already. Joe Henry doesn't get to control every use of his work, only unfair ones.

While I agree with Harbin that this should be fair use, the unfortunate reality these days is that publishers won't touch such quotes without permission being granted. It's almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don't want the liability of a lawsuit. I've had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it's just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use... but his publisher wouldn't touch it. So I'd say Harbin goes a little too far in suggesting this is a purposeful omission by someone who wants to deny fair use. It seems more likely that Woodlief is accurately describing the state of the industry today, where threats of lawsuits have made permission culture the norm, even in cases of obvious fair use.

And that's where this "permission culture" has brought us. It's eating away at fair use. It's eating away at creativity. It's eating away at education. It's eating away at culture. And very, very few people seem to recognize how far it's already gone.

Filed Under: copyright, fair use, permission culture, quoting, tony woodlief