Why Is There a Rule Against Poetry Critics Quoting Poetry?

In a recent article, the poetry critic of the New York Times complained that to do poetry criticism right, it’s often necessary to quote extensively from a poem. Indeed, in the case of a short poem, it might be helpful to readers to copy the whole thing. But, the critic said, this can’t be done because it might run afoul of copyright law.

It is true that copyright law prohibits the unauthorized copying of any substantial part of someone’s poem, song, or other work.  What does “substantial” mean?  Well, in one recent case, a federal court held that rap group N.W.A.’s unauthorized sample of a two-second guitar chord was infringing. The court’s holding was clear: “Get a license, or do not sample.”

Is this a good policy?  From an economic perspective, no. Use of a small bit of someone else’s creative work to build a new creative work rarely harms the economic interests of the first copyright owner, because most “derivative” works do not directly compete with the original. In the case mentioned above, no one thought that N.W.A.’s rap song “100 Miles and Runnin’” would lure potential paying customers away from Funkadelic’s “Get Off Your Ass And Jam.” (Note: neither song is safe for work.)

Indeed, N.W.A. was probably more likely to lure new customers to Funkadelic. And if the derivative does not compete with the original, why should copyright law address it? Some argue that copyright owners have a “right” to license their work for use in derivative works, but this is a tautological argument – they have a right only if the law gives them one, and the real question is whether the law should do so in the first place.

For poems, the economic case against “sampling”—i.e., quoting—is even weaker. There’s little fear that copying parts of poems in a New York Times review will destroy the market for the poem – most poems don’t have a market, and indeed pretty much the only ones that do are those for which a market is created by a review in a major outlet like the Times. And yet, for fear of copyright liability, even institutions with the power of the Times have reason to be wary. And a lot of valuable expression is thereby chilled.

Copyright does contain an escape hatch–there is an exception for “fair use.” Unfortunately, fair use is more useful in theory than in fact. Knowing in advance what counts as fair is very difficult, and many publishers—the New York Times included, if the op-ed is to be believed—shy away from anything that a court later might deem unfair. So while an important exception to the general rule against copying, fair use is actually very hard to implement in practice.

In part this is because fair use is a standard, rather than as a set of rules. A standard is a general guide of conduct, for example, “drive carefully.” A rule is a much more specific command, as in “drive 65 miles per hour or less.” Fair use is more like the first than the second – the law sets out some factors that are relevant to whether a use is fair (such as whether the use is commercial or non-commercial, how much of the original work is used, etc.), but these are only guidelines, not rules.

Some countries do it differently. Several European nations structure fair use as a set of narrow and specific exemptions to copyright liability – for example rules allowing limited copying for scientific research, for classroom use, or for non-profit use by libraries and archives.

So what’s better, a set of fair use rules or a single fair use standard? Both have advantages, and there is a large legal literature on when, as a general matter, we ought to have rules or standards. Standards are flexible, and allow courts to consider arguments in instances that would not have been anticipated by rules. But what rules give up in flexibility, they gain in ease of application. They also let people know in advance what is allowed and what is forbidden.

Is there some way we can get the benefit of both rules and standards in how we structure fair use? We think so. We could keep the general standard but start developing rules about particular uses that are fair. For example, given the cultural importance of poetry criticism, and the fact that even reviews that quote heavily are more likely to create a market for a poem rather than destroy one, perhaps we should have a rule declaring bona fide poetry reviews immune from copyright complaints. And perhaps we should have rules about personal and non-commercial uses of copyrighted works – no liability, for example, for using someone’s song as background music for a YouTube video of your toddler dancing. No one’s going to pay for a license to make a use like this, and the video won’t cut into the market for the song.

If we collect enough examples like this, we could develop a robust set of rules that would give people guidance. And the general fair use standard would still be there to handle situations not covered by the rule. None of this suggests that fair use should invade the copyright owner’s core economic interest in profiting from her work. But copyright equally should keep clear of uses that don’t threaten authors’ livelihoods. And to strike that balance better, we need to make some rules.

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  1. Mike B says:

    Why says there’s no economic when someone quotes a poem or samples a song? If the entire business model is generating revenue through copyright traps and lawsuits then of course taking that away harms the artists!!

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  2. Tom barger says:

    Only one issue gets attention. Being called a job killer. You will note that Cary Sherman, of the RIAA, is using the term for every situation. Don’t know if he is a conservative or not, but the trade group changes tack with every prevailing breeze. It used to be “think of the children,” which didn’t make sense with Hilary Rosen leading the charge. Now it’s think of the lost jobs.

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  3. robyn ann goldstein says:

    There is an old somewhat Talmudic saying, “Paradise belongs to him (or her) who makes his (her) companion happy.” Wow, what a real profound understanding of the real meaning of love.

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  4. Tarleton says:

    You should check out the work being done at the Center for Social Media at American University. Pat Aufderheide and her colleagues had much the same thought, and have been developing “best practices” documents for various fields that often depend on fair use: documentary filmmakers, media educators, musicians. These are developed by talking with practitioners, a lot, about what they need to do, want to do, feel they can’t do, then developing these into a best practices document that gets vetted by legal experts. Highly recommend.

    centerforsocialmedia dot org

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  5. Rob H. says:

    There are some great points touched on about this subject in the documentary RIP: A Remix Manifesto
    freely LEGALLY available here: http://vimeo.com/8040182

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  6. Craig says:

    I realize the main point of the article is about how far copyright protection should go, but I’m not sure we need poetry critics in the first place.

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  7. jonathan says:

    Hidden due to low comment rating. Click here to see.

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    • robyn ann goldstein says:

      Dear Jonathan;

      OK, I want to follow your logic with a real example and see where it leads me nin the sense that I have no preconceived idea of where it will.

      LEt’s say, someone writes book and the book is published as all dissertations are. Every one of the facts it reports are the authors real discoveries as is the method of approach employed to sort the matter out is demonstrated and its results made obvious for the first time. The book, which is `original,’ but grounded on the original work of another whose work is grounded upon the original work of others …….. So the selling of “my stuff” is not the whole issue here (since my stuff comes somewhat from that of another (who is credited for his work….. but mine has not yet been published in the usually way. (anyone can buy a copy through dissertation publishing abstracts…. The issue is of whether or not someone technically should not be able to use the publication of my research results without my permission?

      So now someone takes my idea and uses it without my permission. But to publish a book that they do make money with. They use its ideas in other ways and credit me indirectly (not by name). Their book not only makes a whole lot of money, but (indirectly) markets my idea i.e., for the time being until I finish that book in which I aim to make my `original’ idea obvious.. Does their money belong to me?

      The only legitimate complaint that I might have is not to have been acknowledged by name or, at least, indirectly (which they already did). But then again, should they acknowledge me by name before I do acknowledge having made this discovery myself ? Now imagine several books like that (indeed a whole slew of em), including my second book that I sold the publishing rights to. I would call all the books a bit of marketing tools since none of the authors credit themselves with the original idea (except mine and a few that acknowledge my discoveries indirectly). Is this fair use? My first feelings were of course not. In hindsight, I have changed by mind and take such usage as an honor. The problem is mine to finish off my work. But since, I framed this as a question, I would like to hear your opinion. Seems to me here is such an example of how one gets from the idea of stealing to fair usage and then there is the question of where one draws the line. I say, ethically and as far as integrity is the issue, usage should be real fair as in the author should be acknowledged in some way (until the person claims their discovery which they alone have a right to do) and when the author acknowledges their own discovery, at that point, the user should acknowledge the individual person by name as in real fair usage.

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      • robyn ann goldstein says:

        Continuing on with this thought, that prof. of mine did acknowledge my achievement of 1974. in his new Introduction. I only learned of it today upon reviewing it for the second time around and real closely now. What this says to me is that we all make mistakes at times. The trouble is, I had to go through alot to find this one out. Life is unfair, perhaps a bit fairer when real justice is served.

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      • Frances Grimble says:

        Robyn Ann,

        Ideas and theories are not copyrightable–only the expression of them, in words or images. Therefore, if another writer or scholar lifts ideas/theories from your not-yet-published work, it is not illegal, even if it harms your academic career by some other scholar getting the credit for your work. People often confuse academic credit and copyright permission. They are not the same thing.

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      • Robin Marlowe says:

        Dear Frances;

        You got the wrong idea. I am only talking about INTEGRITY. And all of the individuals whose works I have been studying had real integrity. Every single one of them did not beg, borrow or steal ideas or thoughts without crediting the person(s) responsible for their thought. They did their own work. Ever hear about the disease of the academy. Read Max Weber. That is part of the problem! As far gaining an academic position. Well, if that never occurs. The loss will be to the academy- I am a good teacher and I have succeeded at gaining a few students willing and able to pass my ideas and thoughts along. So I have succeeded and I did not need an academic position to get there. In all honesty, I have truly enjoyed the luxury of having the freedom to pursue my dream relatively unencumbered by requirements. Just stressed from time to time and only until recently about economics. My only regret, is I would like to mentor students (as my advisor did with me). I have a great deal to offer. Well, if that never happens. So be it.

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      • Robin Marlowe says:

        Dear Frances;

        As to the question of whether or not a college education matters? Perhaps the questions should be to whom and for what. To the teacher, what does it mean to educate? Does it mean to impose one’s own values on others. Not according to Max Weber. It means to educate students enough for them to understand themselves, the consequences of their actions and hence to free them up enough to make wise choices as to what to do and how to live their lives `on `their’ terms.’ I had a friend in college whom I admired and looked up to and still do. Her parents were smart enough, secure in themselves and well aware of teaching her to trust herself and she took on their values willingly.

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      • pst says:

        Weber did not say it was a disease, but that it was “like” one. I say it’s a disease in the sense that if something is happening that is really destructive to your body and you don’t know it i.e., and don’t, therefore, have the wherewithall to do something about it, then it is not just like a disease- it is, in deed, a disease. Luckily, I do see positive changes that would suggest a counter-active effort.

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  8. Gary says:

    Why not add a simple release option into copyright law that allows the copyright owner to give permission for someone to use the work in a derivative work such as a critical review? Reviewer asks poet to allow critic to quote poem freely in exchange for the publicity. Poet grants release, critic publishes review, poet gets attention for future creative works. Poet refuses, critic moves on, poet remains in obscurity. No arguments arise about the meaning of “fair use.” Isn’t this the basic model for poetry anthologies?

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    • Frances Grimble says:

      US Copyright law already fully allows the copyright holder to give permission to use his or her work, and to grant any and all copyrights under his or her control, and to be quite specific about the limitations and purpose of the use.

      It is legal, but considered very bad publishing practice, to ask any reviewer or academic critic to speak favorably of the work. Reviews are supposed to be objective. On the other hand, it’s not only legal but quite ethical in the trade to specify what material will be used, how much of it, for what purpose, how many times, and for what payment if any. Although usually no payment is charged for review quotes. It is legal, but extremely uncommon, to charge a reviewer for quoting part of the work in a review.

      I could see a discussion happening where it turns out the reviewer wants to use so much material, say more than one complete poem of more than a few lines, that it looks like this is going to be a poetry column for the publication rather than a review. If I were the poet, I’d discuss and clarify this, and if it was really going to be a poetry column then I might charge.

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