RE: poets and the right to quote

Quotation for the purpose of review or criticism is an accepted fair use. Mr. Olsen was duped -- although I'm sure I would make noise, too, if my work was being quoted and criticized. However, the fair use would only extend to copying so much of the work as is necessary to make a point -- not the entire work in most cases.

Michael R

-----Original Message-----
From: Karl-Erik Tallmo [mailto:ketallmo[_at_]nisus.se] Sent: Thursday, October 16, 2003 2:00 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] poets and the right to quote

Hello all!

On the POETICS list a question recently arose about fair use and the right to quote poetry. Kirby Olsen (whose entire post I submit below - with Kirby's permission) had heard that a poet has the right to every single line of poetry and thus could forbid another author or critic to quote. Even one quoted line in a novel has to be paid for, is what Kirby was told. You can also see my answer below where I dismiss this as overprotection and an attempt to deceive. However, Kirby insists that this has happened.

My question here is: has anybody ever heard of a court case where the copyright holder has been able to enforce such position? To me it sounds unlikely, since it goes against what I know of written law as well as its application.

Thanks in advance for any hints!

Karl-Erik Tallmo

• from our discussion on the POETICS list: ======

>X-Accept-Language: en
>Date: Tue, 14 Oct 2003 13:56:19 -0400
>
>Sender: UB Poetics discussion group
<POETICS[_at_]LISTSERV.BUFFALO.EDU>
>
>Organization: SUNY Delhi
>Subject: Re: Question re Poetry Citation and Copyright
>To: POETICS[_at_]LISTSERV.BUFFALO.EDU
>
>There are a tremendous number of sad stories floating around about
>translation rights.
>
>However, I wanted to point to a tangential issue which can be just as
>hair-whitening. In order to publish criticism of a book of poetry, and

>in order to cite even one line, you are supposed to have permission to
>do this. Even one
>line of a 200-line poem has to have a garnered permission slip from
>the owner, or
>sometimes the owners, of the poems.
>
>I ran into this with a chapter in my book Comedy after Postmodernism.
>I had thought that the "fair use" stipulation applied, and was quoting
>a poet, but when I asked for rights, this poet said no way. He didn't
>like what I had written! As
>it turned out, I had to cut the chapter. I took most of the
>technical ideas and
>recycled them in another article I wrote, so it wasn't a waste, and
>actually I was
>trying to do the poet (who doesn't have much or any critical writing
about his
>work) a favor. Surprise!!
>
>The legal precedent apparently has to do with the poet-critic Yvor
>Winters who worked at Stanford or Berkeley in the 50s and was slashing
>the throats of the competition. He wasn't merciless, but he was
>writing stuff that Wallace Stevens and others didn't appreciate, and so

>a number of poets got together and made a suit in which they claimed
>that EVERY line is integral to a poet's work. And so
>even one line in a novel for instance has to be paid for. Even one
line in a
>critical book has to be paid for, or at least permission has to be
granted.
>
>In reality, I doubt if there are any suits. It costs proably ten grand

>to initiate a law suit and carry it through, but with lawyers for the
>arts even an impoverished poet could probably manage this.
>
>In newspaper and journal reviews, or even in articles the stipulation
>doesn't apply, but in books, it does. This is why when you read Yvor
>Winters he is killing Wallace Stevens for being a pagan without any
>sense of transcendence but he doesn't give examples, which is how it's
>normally done. You can read a whole
>book and not find an example. It's because permission wasn't given.
>
>I would love to find the legal paperwork having to do with this
>case, but although
>I know lawyers, I don't know any copyright lawyers. There are
>probably a number
>of them in Albany, NY an hour away, but who on earth would know about
poetry
>copyrights! Poetry is hardly even a cottage industry. Lawyers usually
want
>something more substantial to slice their teeth into.
>
>I have heard horror stories about how impoverished critics have had
>to lay down
>three hundred dollars or a thousand to publish a poem they wish to
>critique in a
>book. Meanwhile, fiction falls into the realm of fair use.
>
>Could anybody give me their experience of this? I had never heard
>of it before
>this happened, and I have never heard of it since. The law itself if
it truly
>exists is probably buried somewhere in some law journal from the
>1950s and hasn't
>been opened since. It would seem to me that this would hurt the art
>of poetry if
>anything because it would tend to slow freedom of discussion, and
>even go against
>the idea and principle of the first amendment. As a critic, I now get
a full
>release form (non-exclusive world rights) from any poet I'm working
>on, or from
>the estate, and would never even think on working on a difficult
>poet. If I sense
>any tension whatsoever, I close the file and advise all and sundry
>to do the same.
>
>-- Kirby Olson

This sounds like an attempt to overprotect and - deceive. I would very much like to see a judicial decision of some sort arriving at that. I know that many publishers (especially in the US) list the sources and rights for each and every line from a popular song that happen to appear in a novel, for instance, but I believe this is probably overprotection, especially if they have paid for the use too. Like all those disclaimers you read on software packages or labels that tell you not to try to shave with your lawn-mower etc.

The right to quote is really an essential part of copyright, one of the exceptions in the author's monopoly, that is what he or she actually "pays" in order to get this privilege.

article 10 of the Berne convention says:

> (1) It shall be permissible to make quotations from a work
>which has already been lawfully made available to the public,
>provided that their making is compatible with fair practice, and
>their extent does not exceed that justified by the purpose,
>including quotations from newspaper articles and periodicals in the
>form of press summaries.
>
> (2) It shall be a matter for legislation in the countries of
>the Union, and for special agreements existing or to be concluded
>between them, to permit the utilization, to the extent justified by
>the purpose, of literary or artistic works by way of illustration in
>publications, broadcasts or sound or visual recordings for teaching,
>provided such utilization is compatible with fair practice.
>
> (3) Where use is made of works in accordance with the
>preceding paragraphs of this Article, mention shall be made of the
>source, and of the name of the author if it appears thereon.
>

So, pretty much is left to the courts to decide, but the general 'esprit' of this law text is that it must be regarded as permitted to use a fair amount of a published works for critical or educational purposes. Regarding the amount that may be quoted, this is supposed to be pretty short, but general application of this law in most countries permits for instance the use of a whole poem, say of 10 lines, to be quoted in an article about a poet. What courts usually consider here is whether the quotations are made to "illustrate" one's own critical or journalistic reasoning, or if the quotations are actually the main part of the new work and the quoting author's own text is merely meaningless glue.

Karl-Erik Tallmo

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