If A Book Editor Drastically Changes A Book, Would Publishing The Originals Be Fair Use?

from the or-is-that-backwards? dept

Sometimes it's fun to dig into the nonsensical conundrums created by today's copyright law. Michael Scott points us to an academic paper exploring the copyright conundrum facing the widow of famed American author Raymond Carver. Apparently, the widow would like to publish a collection of 17 "original" Carver stories. The stories have all been published previously, but in highly edited forms. The Carver estate does not hold the copyrights on those published stories, which belong to the publisher. So now that the widow wants to publish the original version of the stories, the publisher is threatening to sue for copyright infringement.

This isn't a case of just minor editing either. The paper shows how Carver's original editor, Gordon Lish, didn't just "edit" Carver's stories, but seem to have practically rewritten large parts of some of them, often totally removing sections, and frequently changing endings. The paper shows this comparative example of the original Carver ending and the Lish ending to the story What We Talk About When We Talk About Love to make the point:
Carver Ending:

L.D. put the shaving bag under his arm again and once more picked up the suitcase. "I just want to say one more thing, Maxine. Listen to me. Remember this," he said. "I love you. I love you no matter what happens. I love you too, Bea. I love you both." He stood there at the door and felt his lips begin to tingle as he looked at them for what, he believed, might be the last time. "Good-bye," he said.

"You call this love, L.D.?" Maxine said. She let go of Bea's hand. She made a fist. Then she shook her head and jammed her hands into her coat pockets. She stared at him and then dropped her eyes to something on the floor near his shoes.

It came to him with a shock that he would remember this night and her like this. He was terrified to think that in the years ahead she might come to resemble a woman he couldn't place, a mute figure in a long coat, standing in the middle of a lighted room with lower eyes.

"Maxine!" he cried. "Maxine!"

"Is this what love is, L.D.?" she said, fixing her eyes on him. Her eyes were terrible and deep, and he held them as long as he could.

[end]

Lish Ending:

L.D. put the shaving bag under his arm again and once more picked up the suitcase.

He said, "I just want to say one more thing."

But then could not think what it possibly could be.

[end]
This is not just an edit. That's a rewrite. So if Carver's widow wants to publish the original stories, is she infringing on the publisher's copyright? Is it fair use? Is it a derivative work? Or... is it something entirely different? To some extent, you could argue that with these massive changes, the actual copyright the publisher holds actually applies in large part to Lish's original creativity, and thus might not even apply to large segments of Carver's work. But, obviously there are areas of overlap that make this a lot more difficult.

The paper goes through a variety of different legal theories and questions this situation tests, and highlights some of the pertinent caselaw. It's all interesting, mainly in showing how unprepared copyright law really is to handle such basic situations as this one. In the end, the paper does make a compelling argument that the widow should be able to publish Carver's original stories by using the four factor test for fair use, noting that the work is transformative, and is really being published as something of a "commentary" on the originally published works (i.e., to show the difference). However, that point is key to the analysis. As long as the work is published specifically to comment on the editorial differences between the two -- rather than setting itself up as a "competitor," there's a much stronger fair use claim. But, as with many fair use claims, it really comes down to a judge deciding how much weight to give the various four factors.

And that simply highlights the ridiculousness of the situation. It seems that the are compelling educational reasons for publishing the original works, and yet due to the great unknown of how a judge will rule on fair use, it's not clear that the works will actually get published.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 26th, 2010 @ 12:50am

    she should digitize them or have it done and put them on the internet for all to download, screw the publisher

     

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  2.  
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    Jay (profile), Aug 26th, 2010 @ 1:17am

    Re:

    But then going after her for willful copyright infringement could be very damaging.

    It's $150,000 per case of willful infringement, $200 for unintentional.

    Do you happen to have that much lying around?

     

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  3.  
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    John, Aug 26th, 2010 @ 1:56am

    Or maybe she should do the same as some musicians are doing and notify the publisher that she is taking the copyrights back. I do note this story originally is from 2008, the paper itself is dated 2009. Any more recent info?

     

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  4.  
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    Matt (profile), Aug 26th, 2010 @ 5:33am

    Opportunity for the original publisher

    What the original publisher should do is offer to be the publisher for the unedited works. It would create the opportunity to spark new interest in the originally published books.

    Just think of the bundling possibilities, each individual book bundled with it's unedited version, all books with all unedited versions, all individually, and both edited and unedited separate bundles.

     

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  5.  
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    KimB, Aug 26th, 2010 @ 5:36am

    You're right @John, this is an old case. The book - called Beginners, the original title of the first story - was published in October 2009, the review of it is available here: http://www.guardian.co.uk/books/2009/oct/17/raymond-carver-beginners-blake-morrison

     

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  6.  
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    Wabbit (profile), Aug 26th, 2010 @ 5:38am

    What a shame

    This story provides a clear picture of how our copyright laws are causing the loss of culture and heritage. So much for advancing "the progress of science and useful arts."

     

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  7.  
    identicon
    darryl, Aug 26th, 2010 @ 5:40am

    You dont get two bites of the same cherry.

    Nice try, it would be good to get a chance at more than one bite of the cherry.. Can you imagine it, if this is allowed everyone and their dog will be pulling out old drafts of their works and claiming they are different to the finished version, therefore they have the right to take that bite they have allready had.

    You dont get two chances like that, (in the real world), the auther got paid, and agreed to the copyright, and rights to be sold as is.. He then does not have the right to say, "well ive got a slightly different version, so I will claim that as a new complete version, with new copyright". Sure it was a draft of what he SOLD,

    And really "fair use" good luck with that, and trying to claim it as a "commentry" is a bit of a joke too right ?

    Lets see what happens in court, If I were her though I would not be holding my breath for a big payout..

    They had their chance, they won the prize..

    And why mike would you want to see someone paid for something they have allready been paid for, for work they have allready done, from profits from the copyright.

    I thought you were against people being paid for making music or writing or such ?

    Yet you seem to want this person to be paid twice for the same work ? nice double standards !!

     

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  8.  
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    KimB (profile), Aug 26th, 2010 @ 5:45am

    @darryl - too late I guess, the book was published last year!

     

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  9.  
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    RD, Aug 26th, 2010 @ 5:47am

    Re: You dont get two bites of the same cherry.

    Dear douchebag retard,

    Please show all of us where Mike has ever said the following that you claim:

    "I thought you were against people being paid for making music or writing or such ?"

    Please. We are waiting to see your citiation for this. Because Mike has never said or advocated any such thing.

    "Yet you seem to want this person to be paid twice for the same work ? nice double standards !!"

    How can it be a double standard when it was never said or claimed to begin with? Your arguments have no credibility when you make such obviously blatant false statements like this.

    Put up or shut up. Proof or go away little boy.

     

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  10.  
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    Anonymous Coward, Aug 26th, 2010 @ 5:49am

    "Along as the work is published...."

    i suppose its a typo if you miss the 's' and the space bar.

     

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  11.  
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    Authors changing works?, Aug 26th, 2010 @ 5:58am

    Isn't this similar to a director's cut? How does copyright play out with the "updated" cut of movies, such as Star Wars? Is it a new, transformative, and original work, or does the copyright remain 1977? Did adding Hayden Christensen to Return of the Jedi create a new work with a 2004 copyright, rather than 1983?

    What if Lucas published his original script for Star Wars (which is completely different than what ended up on screen)? Wouldn't that be a completely different work? Would he still be able to call it Star Wars?

     

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  12.  
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    Anonymous Coward, Aug 26th, 2010 @ 6:23am

    Every draft is a copyrighted work

    Can you imagine it, if this is allowed everyone and their dog will be pulling out old drafts of their works and claiming they are different to the finished version, therefore they have the right to take that bite they have allready [sic] had.

    Since EVERYTHING is automatically copyrighted even if the author doesn't ask for a copyright, there's strong justification to claim that every draft is a copyrighted work, completely independent of any other.

    The original author might have transferred the copyright of the finished work to the publisher, but unless he also explicitly transferred all the drafts they presumably belong to his estate.

     

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  13.  
    identicon
    Anonymous Coward, Aug 26th, 2010 @ 8:31am

    Re:

    it doesn't matter, because Lucas holds the copyright to the original and to all the different iterations. In this case, the publisher holds copyright to one and the widow wants to publish (and presumably maintain copyright) to the other.

     

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  14.  
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    Anonymous Coward, Aug 26th, 2010 @ 8:34am

    There is in my opinion nothing contained in the factual situation presented here that in any significant manner pushes the boundaries of copyright law. Moreover, the paper that you cite is a student work of the type typically required in order to satisfy at least one research paper in order to graduate and be granted a JD degree. In such papers student authors almost invariably raise any and every legal matter that comes to mind that may have any bearing on the facts presented...even when such legal matters are for all intents and purposes DOA.

    If one is looking for a poster child to try and hold up copyright law as an unintelligle morass of conflicting provisions and doctrines, this matter is certainly not such the child.

     

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  15.  
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    TtfnJohn (profile), Aug 26th, 2010 @ 10:49am

    Re:

    I can see darryl lawyering up right now.

    Interesting, isn't it, that the nick used here has the same name as the guy who sued IBM, Linux and everything else he could think of for copyright violations on copyright it didn't and never had owned? Right now that company is in bankruptcy and unlikely to ever emerge. Oh yeah, and that darryl is out of a job.

     

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  16.  
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    Stephen, Aug 26th, 2010 @ 12:59pm

    an editor's view

    1. Lish's ending is immeasurably better than Carver's. That's why there are editors.

    2. That aside, this is not a copyright issue. This is a competitive works issue. Every trade book contract has a clause indicating that an author can't publish a competitive book on the same subject (with some allowance for academics who might use their work for both academic and trade works, which are for entirely different audiences; and journalists, who might publish their work as part of their day to day business, but in an entirely different venue than a book). This came up, for instance, when Billy Collins signed his huge publishing contract with Random House and wanted to use the poem that had been published in his books with U Pittsburg press.

     

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  17.  
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    Anonymous Coward, Aug 26th, 2010 @ 1:32pm

    Stephen has a point that this issue may have been dealth with in the contract. Carver MAY have signed over all rights to the work and all derivitives.

    However, I think the issue is being argued backwards...
    Carver has the original work. Lish's is the derivitive.

    third issue: Carver may have had the right (need to look at contract) to approve final edit prior to publishing. He may have agreed that Lish's version was superior to his own. He may not have wanted his originals printed. Many writer's would die if their first drafts got out. It can take hundreds of re-writes to get the final draft. Many of the earlier ones may be terrible, and he may have felt that.
    While earlier drafts may be an appropriate subject for academics (demonstrating the author's progress and work)most writer's would not consider them finished or complete works on their own.

     

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  18.  
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    Anonymous Coward, Aug 27th, 2010 @ 12:25am

    he does state in so many words, that they should get paid twice for the same story, once for the publisher putting the book out and again by the widow releasing the original drafts of the story, getting paid twice for one story

    "And that simply highlights the ridiculousness of the situation. It seems that the are compelling educational reasons for publishing the original works, and yet due to the great unknown of how a judge will rule on fair use, it's not clear that the works will actually get published."

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    darryl, Aug 27th, 2010 @ 6:12pm

    Re: Re: You dont get two bites of the same cherry.

    Goodness, RD you are upset because I did not respond this this peice of rubbish ?

    I dont know if you have ever read what what constantly says, but he is always talking about alternatives or different ways of fleecing the customers, as opposed to letting them pay for a product they want.

    He is always going on with his "equation" and things like reason to buy, suggesting how you can sell other things INSTEAD of the actual music.

    He wants them to get paid but is happy for them to be paid by other methods and not for creating good music.

    And if you want any examples of Mike making those kind of statements, I assume you can read. SO READ. Every couple of days or less Mike is showing examples of alternatives.

    Mike, seems to take the same stance, as you RD.. You make claims and statements, but when called out on the double standards displayed, its all denials. "we never said that!!".

    And you say it ALL THE FREAKING TIME, If I could be bothered I could pull out probably hundreds of examples of this on this site. You can too, all you have to do is read.

    Read first, react later. otherwise you just sound stupid.

    SO thanks MR Mikes guard dog, nice too see you defending his honor... and destroying your own..

     

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  20.  
    identicon
    Anonymous Coward, Aug 27th, 2010 @ 9:43pm

    Re: Opportunity for the original publisher

    i think after a few months they stop editing books

     

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  21.  
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    Anonymous Coward, Aug 27th, 2010 @ 9:45pm

    Re:

    scan them on to her computer and disable all security

     

    reply to this | link to this | view in thread ]


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