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:
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.
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.
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.