For one of my library classes, a group of us are making a digital library of art and literature from the Buffalo area.  Subsequently, and partly because of the continuous uproar surrounding copyright and other digital libraries (namely Google Books), we have gotten a lot of questions about whether artists’ “rights” will be protected, and it has become clear that not only do artists not know what their rights are, they have no idea what “rights” means.

I would advise all artists/writers/etc. to read the U.S. Copyright laws many times.  It’s actually not too long or difficult to read.  Copyright law is based on two major principles: attribution and profitability.  If you’re using a work in a way that doesn’t attribute it to the creator, you’re violating copyright.  If you’re using it in a way that makes a profit that the creator isn’t benefitting from, again, you’re violating copyright. There are implications and subtleties here but those are the basic principles.

You don’t have to actually apply for a copyright in order to be protected under the law.  There are two ways of ensuring your work is copyrighted without paying to register a work with the copyright office.  First, you can write “Copyright [your name] [date]” on the work and ta-da! You’re done.  Second, you can send yourself a copy of the work through the U.S. mail.  Don’t open the envelope when you get it– the postmark is the copyright.  These two methods will not necessarily protect you outside the U.S.

The idea of “fair use” is particularly important in poetry in two ways.  First, poets “borrow” a lot.  Modernists like T.S. Eliot or Louis Zukofsky seem at times to only write about half their material, and borrow and splice the rest from outside sources.  This is generally an accepted part of the art, just like music borrows from various artists.  There’s a threshold between borrowing and plagiarizing, but it’s not totally clear and may need to be evaluated on a case-by-case basis.  Second, poets xerox a lot, especially poets who want to introduce out-of-print or small-press or expensive books in classes where students would otherwise have trouble accessing the book.  If the book is still in print, you should have your students buy it– poetry presses suffer enough without you xeroxing stuff.  Students pay hundreds of dollars for Chemistry 101 textbooks, they can shell out $12 for a poetry book.  You should not xerox an entire book or even a chapter of a book without the publisher’s and artist’s permission.  They might give you a break or cut you a deal, but you should be on the up-and-up with them about it rather than test the boundaries of legality and ethics.

If you’re a scholar doing research on a poet, “fair use” will protect you from stuff like this.   “Fair use” is

Quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported. (cite)

(Note that if you’re a teacher, “a small part of a work to illustrate a lesson” does not mean a chapter of a book, a sheaf of poems, etc.  Similarly, quotations to illustrate points in scholarly papers should be short, and one cannot quote a whole poem in a newspaper article without permission, even if the poem is short.)  Fair use is actually good for everyone involved.  It allows scholars, journalists, artists, etc. to do the work they want/need to do, and it does not reproduce the artist’s work to such an extent that the artist loses money from the work s/he’s selling.  In fact, “fair use” can act as an ad or teaser and help an artist sell more copies of his/her work, and can help his/her progeny continue to profit from his/her work (if that is in fact the goal of his/her progeny in protecting his/her work).

With regard to the design or layout of a book, if an editor wants credit for that because it changes the nature of the work, that must be copyrighted separately.  The text itself is the author’s, and unless the author has signed a contract with the editor/publisher not to reproduce the work again without permission (which is very uncommon in small press circles), the author has the right to reproduce it again whenever, wherever he/she wants.  Of course, if an author would like the original small press to recover publication expenses, it is more ethical to wait until the work is out of print to reproduce the work in some other way.  But the copyright holder (who is usually the author unless a contract has been signed otherwise) ultimately controls this.

Here are some contracts you may have signed with a publisher.

If you give your work to a library, or if a library buys it, then people can borrow it (and xerox it and read it, even read it aloud to their kids!), but copyright protects you from them ripping it off or selling it.  If you give your work to a digital library, then people can read it online for free, possibly print it out, listen to it, read it aloud, etc.– but they cannot call it their own or sell it or use it in any other way that violates your name or your claim to profits.  If you don’t want your work to be accessible for free to anyone, make sure libraries and digital libraries and museums don’t have it.  (This is why Google Books gets in trouble– they sometimes reproduce work without artists’ permissions.)

If you would like to copyright your blog, photographs, or other material online, see Creative Commons for a standard way to do that.

You should not take the above as the final word on any of these things, but read the documents for yourself.


About Jessica Smith
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One Response to Copyright

  1. yesisaidyesiwillyes says:

    This is a great discussion, and would be even without all its detail and nuance. By which I mean, right on Jessica, for emphasizing at the top and by the post the importance of knowing one’s rights.

    There are other overlays possible on the subject, which I think enter into any consideration of the scope or reach of copyright protection.

    First is the corporatizing of copyright protection. The Disney company (and other big money interests) fueled extension of the length of protection (called Disney because it not-so-coincidentally was done such that — literally — Mickey Mouse didn’t get in the public domain. I call these extensions odious. Free Mickey, let him (and Minnie) into the public domain!

    Also, as you say, the “fair use” lines are quite blurry, and there are no hard and fast rules. As are the concepts of “transformative use” and the like. That said, I look at (for example) Bruce Conner’s collaged found-film movies, and worry that a too rigid application of copyright would prevent those things from being made. That’d bum me out. And so while recognizing the property interests of those that create the original product, I also adore those who take “original product” and make something new.

    But let me end where I began: this is a great subject to discuss.

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