I’m going to copyright the word “a”. The indefinite article is mine, and whoever uses it is going to have to pay me one dollar. 🙂

I have a feeling this is a mixture of caricature and hysterics.

The author, Kyle Gann, neglects to mention precisely why he can’t quote these short-phrase works of art. He implies that it’s because of copyright law, but of course between fair use and the limitation on copyright law that it does not protect short phrases that is probably untrue.

It might be because of Gann’s own interpretation of copyright law – he is seeking permission (which he may not need), and the rightsholders are being pains in the ass about it.

It might also very well be Gann’s publisher’s interpretation of copyright law. Having gone through this with a major publisher, I can tell you that they do care about copyrights and do want you to get permission for including someone else’s work. They are generally reasonable about it – a short quote, for example, properly cited, won’t cause anyone alarm (and they usually have guidelines as to how much you can quote before you need to worry – 175 or 250 words or thereabouts).

Publishers do understand fair use in that context, but they are also 1) conservative and 2) recognize that, as commercial publishers of commercial work, they are already down a peg on the “purpose and character” fair use test. As such, they tend to adopt a “better safe than sorry” model.

Ignoring all that, this case seems to be unusual in a few other regards. First, the author seems to be writing a book about John Cage. Cage, or rather his estate, has been involved in some of the more ridiculous copyright contortions seen. The instances where he wants to copy a sentence or two seem to be works where the entire work is a single sentence. It would not surprise me to find out that an “artist” who considers a single sentence sufficiently profound to need protection is especially apt to sue someone for copyright violation of the same single sentence, perhaps declaring the act to be some sort of avante-garde performance art. Unfortunately, the legal system is, in nearly all cases, reticent to remove someone’s right to sue. Due process and all. Some states and other areas are enacting anti-SLAPP laws that greatly reduce the threat posed by such frivolous lawsuits.

So, even though publishers can be very (perhaps excessively) touchy about copyright issues, they may be justified in this case since the particular artists involved–if they’re anything like Cage or Cage’s estate–may be in a camp that will cause legal trouble for the publisher just because they can.

I can provide a little information about what the process is actually like in the nominal case – when you’re not dealing with fringe artists, fringe works, and an author or publisher who seems ignorant of or unwilling to negotiate on copyright.

Getting permissions to use others’ work in a book of yours is, assuredly, a minor pain in the ass. You have to be diligent about where you used the work of others. I’m not sure that requiring a small bit of diligence in this regard is a bad thing; we’ve recently seen a high-profile example of what happens when you don’t carefully keep track of these things.

You then have to get the copyright-holder’s permission. Most people are quite friendly about it. If you can’t contact the author directly, there is nearly always a readily available rights and permissions address, phone number, or website in the source you’re quoting. They generally require a little paperwork and sometimes a small fee ($20 or $30) for unlimited commercial publication. They may also require a disclaimer in the front of your work.

Some people and publishers are not reasonable. One particular dictionary wanted several hundred dollars per definition. The solution to that was simple enough: use different definitions. Another institutional copyright holder requested a nearly page-long disclaimer for a single figure. They won that round. I was particularly amused by this because my opinion of this particular institution was that it was full of gits, and this experience did nothing to dissuade me from my opinion. In 20-30 sources, though, these were the exceptions.

In the end, this minor pain in the ass doesn’t rise to the level of a condemnation of the entire system. The system could be more efficient (most publishers still want you to use–horrors!–written letters and physical stamps and such), and things would be even easier if there were some sort of compulsory mechanical license for written and graphical works. Fair use could be increasingly clarified by the courts. But to claim that things are “out of control” is a little histrionic.