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Le Guin-Doctorow squabble: Is it fair use to copy just one paragraph—600 words long? And how about epigrams?
November 11, 2007 | 2:43 pm
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By Garson O'Toole
Does anyone understand copyright law? Can a fragment of text be copyrighted? The builders of the TeleRead-style electronic libraries of the future will face these perplexing conundrums. Meanwhile consider this topical textual altercation.
Ursula K. Le Guin, literary powerhouse and doyenne of fantasy, recently composed a gleefully sardonic genre-bending short story about a “zombie.” Indeed it is a very-short story since it consists of a single paragraph containing about six-hundred words. The story is graciously available on her Web site here. However, the story does not appear directly on TeleRead because this author does not wish to be accused of flagrant criminality as the remainder of this article will perhaps elucidate.
Intrepid activist Cory Doctorow did decide to copy the story in its entirety onto the prominent blog Boing Boing. Le Guin was greatly irritated by this and felt that the action violated her rights. When Doctorow was notified of Le Guin’s unhappiness he removed the story and apologized. He went a bit further by “also removing all other quotes and references to Ms. Le Guin from Boing Boing’s archives”—well, almost all.
Doctorow still contends that his replication of Le Guin’s story was legally acceptable. He argues as follows:
However, I still believe that my quotation was fair use. I have discussed it with copyright scholars, and my understanding is that the proportion of the work in quotation is one factor in determining fair use, but not the only one (imagine if "taking the whole thing isn’t fair use" was a hard and fast rule — how would one quote a double-dactyl or a haiku?). I also believe this to be consistent with jurisprudence on the subject. However, fair use is judge-made law, and this is an area where people of good will can have legitimate disagreements. I say this not because I wish to slough off responsibility for a mistake, but because I think fair use is an important concept in the free flow of information.
The mention of Haiku is illuminating. Are Haiku copyrightable? Haiku usually combine three lines, but what about one-liners? A fascinating article about a man named Ashleigh Brilliant whose livelihood is based on the composition and copyrighting of epigrams and one-liners appeared in the Wall Street Journal in 1992. Brilliant is tenacious when asserting his rights, “He’s written more than 350 threatening letters to alleged infringers, and has filed and won a half dozen copyright cases.”
When the Funny Side Up catalog offered underwear emblazoned with the uncredited epigram "I May Not Be Perfect, But Parts of Me Are Excellent," he threatened to sue their pants off. But before Mr. Brilliant could file any briefs, the company sent him $1,000 and agreed to stop selling the offending garment.
I hope that the replicated epigram that is embedded in the excerpt above is ok because no textiles were involved, but I do not know for sure.
Photo credit: Marian Wood Kolisch.
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Comments:
Is that a rethorical question?
Yes.
But I do believe that he did that as a fan of science-fiction, not as an “intrepid activist.”
Yes. (IANAL.)
They too. (IANAL.)
I think I can answer many of your questions by saying that “fair use” requires and assumes copyright. Uncopyrightable works cannot be used fairly. And paragraphs of more than 200 words ought to go the way of their inventor, Julius Caesar, the thought of whose Commentarii de Bello Gallico still make me wake up in cold sweat in the middle of the night.
Thanks for your comments Branko Collin. One reason that I find the topic of copyright puzzling sometimes is exemplified by the following quote from the Wall Street Journal article cited above.
This quote suggests that some fragments of text can be copyrighted and some cannot. Alternatively, it is shorthand for saying that some text fragments can be freely replicated via “fair use” legal provisions and other fragments must be licensed from copyright owners. However, trying to assess “epigrammatical” nature of a phrase seems rather tricky.
It seems to me that if copyright has any value at all, a fan (or activist) can’t simply copy a work in total and publish it somewhere else. With the usual ‘not a lawyer’ caviates, I’ll just say I don’t see Doctorow’s side on this one.
I wonder if the controversy will help both of them sell books? I wonder if that was the point of the exercise?
Rob Preece
Publisher, http://www.BooksForABuck.com
Cory was wrong and he should have known that, being that he is generally savvy about such things. What he did was what splogs do: grab someone else’s work and run it as their own. Now, he didn’t claim authorship, but the effect was the same — he denied her site the traffic it should have gotten.
As for one-liners, I’d agree with that court verdict. The one-liner happens to be the Total Creation.
But now we get into some sticky territory that degrades Fair Use. Author Ken Bruen is one of the most generous men on this earth. In his books — until recently — he would preface a chapter with a line or two from another author’s novel to set the stage or mood. I absolutely loved this. Not only did he pick the best quotes, but his doing that made me go and *read those authors,* many of whom I’d never heard of before or would have even encountered were it not for his “sampling” them.
Now he has had to stop doing that. Greedy bastard publishers and agents are now demanding to be *paid* for such Fair Use. Often, the authors being quoted are not party to these shenanigans by these greedy interlopers. When I’ve told authors Bruen has quoted about this, they’re shocked, and every single one of them said they *love* that Bruen used them and wished he’d continue doing so.
(Interestingly, I’ve just read a novel where the author quotes a single line from several songs in the novel itself — using the line to indicate a song playing in the background — and there is no Copyright attribution, something which usually happens when any part of a *song* is used. I won’t name the book because ASCAP and the RIAA and the like can go to hell.)
One more thing (my Columbo Moment again…).
I recall a segment on 60 Minutes billions of years ago. A man was trying to make money off a T-shirt that had a unique variation on the intercourse slang: Fucque, I believe it was. I think he was ripped off but I don’t recall how. However, somewhere in that piece was something about whether a single word like that could be Copyrighted.
I had an art teacher in college who claimed a friend of hers invented that LO over VE graphic of LOVE and was ripped off.
And there was also a 60 Minutes or Primetime or Dateline segment a million years ago about Hallmark ripping off smaller greeting card companies word-for-word.
Fair Use to me depends on:
1) Total length of work
2) Length of work quoted
Bruen would get a Fair Use pass from me. The three I cited here would pay damages to their graves for outright and complete theft.
Thanks to Rob Preece and Mike Cane for their comments. The story behind the LOVE figure is intriguing. Mike Cane said:
Blog readers who do not know what the LOVE image looks like can click here to see the version that appeared on a United States postage stamp. The Columbia Encyclopedia says that Robert Indiana created the image “for a Christmas card printed by New York’s Museum of Modern Art”. The New York Times ran an interesting article about Indiana and his LOVE figure in 2003. It is available from the archives here:
I never was curious enough to investigate the history of the LO/VE graphic. My art teacher was a bit dotty (although, like me, she loved the movie “A Horse’s Mouth” — make of that nexus what you will!), so my mentioning it here is anecdotal and not meant to slander whoever the credited creator might have been. Evidence I do not have (and I wonder if the teacher did?).
As for the two other things I cited, it’s way past time for those TV newsmagazines to publish their transcripts in easily searchable form on the Net! I could have given URLs as evidence of the report’s existence.
Two corrections:
1) The art teacher was High School
2) God, the movie is of course actually titled “The Horse’s Mouth.”
There will always be a job for proofreaders in the post-print world! (At least for my stuff!)
Of course, simple respect for another’s creation would cover most uses without ever having to drag an imperfect law into it. Simple respect should tell that to reproduce the totality of a piece of work ought to require permission of the creator (or, alternately, permission of the entity to which the creator has ceded the work).
This whole thing could have been avoided had Doctorow simply emailed LeGuin and asked her permission. As an author he should know that you shouldn’t just take someone’s work and reprint it in full without consent. Even if it were legal it would still be very rude. Why even reprint it? Why not just a link, an excerpt and some editorial?