Permission Culture: Want To Quote A Single Sentence In A Book? Pay Up!

from the copyright-law-at-work dept

Benjamin points us to yet another (and another and another) example of copyright law gone insane. It involves Kyle Gann, a music professor, composer, author, etc. who was working on his latest book, but had to drop an entire section because he wasn't allowed to quote short sentences that are, themselves, apparently considered works of art, without getting permission from the original authors:
I've been trying to get permission simply to refer to Fluxus pieces like La Monte Young's "This piece is little whirlpools in the middle of the ocean," and Yoko Ono's "Listen to the sound of the earth turning." And of course, Yoko (whom I used to know) isn't responding, and La Monte is imposing so many requirements and restrictions that I would have to add a new chapter to the book, and so in frustration well past the eleventh hour, I've excised the pieces from the text.
Yes, it's become so impossible to quote a single short sentence, that it's just not worth doing at all. Welcome to permission society. Some copyright system believers may claim that this is just the market at work, but it certainly seems a lot more like an undue restriction on freedom of expression at the hands of copyright law. I can't see, frankly, how using copyright law to ban such writing isn't a clear violation of the First Amendment. He even wasted a bunch of time thinking about ways around this:
Some of these pieces are too brief to refer to without quoting them in their entirety. How do you use Nam June Paik's "Creep into the vagina of a living female whale" as an example without giving the whole piece away? How am I supposed to refer to it: "Creep into the vagina, etc"? Call it Danger Music No. 5 and tell you to look it up? Paraphrase it: "crawl into the birth canal of a matronly member of the order Cetacea"? And if the copyrights are held by unreasonable people who can hold your book hostage to their detailed demands, then it's just time to find a different research area. The situation is absurd, somebody under whatever questionable chemical influences scrawls seven words on a piece of paper and 50 years later I can't refer to that piece of paper without paying someone some money and following their prescriptions.
Now, I would think that Gann would have a pretty clear claim to fair use if he were to use the phrases he wanted, but it appears his publisher doesn't even want to bother with the potential battle -- and since fair use is (as copyright maximalists gleefully love to remind everyone) merely a "defense" rather than a "right" (which isn't entirely accurate either), the only way to guarantee that this is fair use is to (a) get sued and (b) have a court rule on it -- something that no one should have to contemplate, just while writing a book on art. What a shame and a loss. Yet, it's what this world has become thanks to out of control copyright law and this sense of "permission culture," where even free expression now requires a request for permission and an open checkbook.

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  1. icon
    Isaac K (profile), 28 Jul 2009 @ 6:20am

    Fair Use idea?

    God, this is getting so frustrating to work with.

    Perhaps we could petition to setup a legally recognized organization with the ability to determine "fair use."
    Basically send in a brief and have it ruled preemptively as fair use before publishing/implementation and therefore exempt.

    Admitedly, as an economist I recognize that this places significant friction in what otherwise SHOULD be a rather frictionless process.

    HOWEVER, preemptive rulings will shut up those who sue at the drop of a hat. If we implement the right (requirement) of a court to fine those who bring suit against the party who obtained preemptive fair use, it WILL dampen the random suing of individuals by presumptive "rights owners."

    Essentially, we can use the "chilling effect" in the opposite manner, where people become reluctant to sue under the presumption that prior fair use was already obtained and thus that they face an automatic fail.

    Since the use would be determined by a legal body, there could be no belly-aching about "enabling rampant file-sharing," since it would already be denied in such cases (except in rare circumstance) from fair use.

    ON THE OTHER HAND, it would prevent the RIAA, MPAA and various record companies from being so triggerhappy in gunning for derivative works in an attempt to shut them down.

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