On Slate, Joseph Thomas writes that the time and effort he has spent writing a biography of Shel Silverstein will likely come to naught because he cannot get permission from the Silverstein estate to quote from any of Silverstein’s material (probably because the biography covers Silverstein’s lesser-known adult work alongside his better-known children’s work, and the estate would prefer to preserve his kid-friendly image).

And so I came up against the hard truth of the literary biographer: It’s crucial to establish friendly relations with the estates of deceased (and more rarely, living) artists whose work is protected by copyright. You see, scholars have to request permission to reproduce more than a few lines of a copyrighted poem or song lyric. Or, more precisely, we don’t have to, but our publishers (largely academic, nonprofit university presses) tend to insist that we ask permission in order to protect themselves from lawsuits. You may have heard of something called “fair use.” One would think fair use was custom built to protect scholars and artists who want or need to reproduce excerpts from copyrighted work in the service of education or art or scholarship—and one would be right. But whether we’re protected or not, most presses prefer to play it safe and make scholars request permission.

With that requirement for permission in place, writers might find themselves playing it safe and leaving out any controversial material in order to avoid offending the estate who has the power to grant or deny permission for the excerpting they need in order to be able to publish their work without legal trouble. For example, he points out a song Silverstein wrote and performed about how he hated childen, complete with use of the “f-bomb” (and quotes five lines, perhaps in the hope that the estate will sue and Slate will take them to court). As long as the estate is able to wield the power of censorship over anything that presents the writer in a way they don’t like, it is essentially unpublishable.

And so we once more encounter the critical problem with “fair use”—the fact that it is a defense, not a right, and anyone who wishes to test it needs to be willing and able to defend himself in court for it. This means that, by and large, only those companies that can afford to spend lawyers’ time like we spend cell phone minutes get to enjoy it. For example, no one had the money or resources necessary to build a complete scanned index of all printed books, including those in copyright, until Google did it. After years of costly legal wrangling, it only just got declared to be fair use—and even that ruling has yet to weather the appeals process.

Oh sure, sometimes you will find civil rights groups speaking up for some individual’s rights as in any other cause, but most people end up stuck like Joseph Thomas—having poured years of their life into a project that will probably never see the light of day. Without a publisher willing and able to stand up to Silverstein’s estate, he might as well shove it in a safety deposit box and leave it to his grandkids to publish when the material hits the public domain beginning in 2051.

And it’s not clear what, if anything, can be done about this. The White House has suggested providing greater access to resources about previous findings of fair use, so that authors and their estates will have a better idea of when something is likely to be found to be fair use by the courts so they can decide not to spend the time and expense of suing. But that’s not going to help if they decide they want to sue anyway—especially since, as in this case, the mere threat of legal action could be enough to keep the would-be fair user from being willing to risk it regardless.

Unless some solution can be found, it’s going to be hard to get past the problem of needing permission to paint an unflattering view of someone if it involves quoting from their works. Which is a real pity.


  1. No less a figure than Laurence Lessig has faced a similar situation with a lecture of his on YouTube being taken down despite his fair use of copyrighted material. He was able to enlist the support of the Electronic Frontier Foundation (EFF) as described here: http://www.tuaw.com/2013/12/31/price-comparison-between-apples-new-mac-pro-and-a-comparable-di/
    Academic fair use has other shields as the Georgia State University case showed. For example, academics teaching in publicly supported institutions are shielded from lawsuits for money damages related to the discharge of their assigned duties (e.g. teaching) under the 11th Ammendment to the US Constitution (sovereign immunity).
    University Presses are often not financially strong enough to defend their authors. They are also not publicly supported agencies even though their institutional namesake might be. One might actually be in a better position by self-publishing. That is, obtain relevant legal advice and possibly establish a limited liability corporation as the publisher.

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