Thoughts on Fair Use

I ran across this article today: $1,884 to quote 300 words from The New York Times in a book: Two authors try to stand up for fair use.

This highlights an issue that I have run up against myself as I have worked to get permission to use quotations for a non-fiction book.  I had a fairly short quotation--maybe 75-100 words—but the big-name publisher I applied to had contract terms for use that were just too much for me. 

1)   They wanted an amount of money far in excess of the proportion of words I was using from their work. 

2)   They wanted to restrict permission to just the United States, which would have effectively limited my ability to distribute my book.

3)   They wanted this contract to only last seven years, which meant I would have to renegotiate the whole thing over again in seven years. (I could just imagine them upping the price then and pulling permission if I didn’t go for it, which would require pulling the quotation from my book and going through publications stuff all over again.) 

4)   They also had a bunch of additional clauses affecting distribution through wholesale or book clubs or mail-order catalogs.

This contract was long, all for something I thought was relatively simple. Just let me use the quotation, darn it!

They were willing to give me permission to quote and distribute to English-speaking countries, but they would not budge on the re-negotiate-in-seven-years clause. 

That did it. I wasn’t going to have anything to do with that. I pulled my quotation.

But it made me think about the burden that charging others to quote an author’s work puts on new authors.  An author who creates their work out of nothing doesn’t have to worry about getting permission because they created it. Further, they may look forward to others asking them for permission. 

But what about scholars? What about the researchers who must link their work to other reputable sources and show how their ideas fit together with others? They need to use quotations. They may need a lot of quotations to support their ideas.  Are they to be burdened with charges to use those quotations? It sounds to me like a great way to ensure that only those with the deepest pockets are able to publish those kinds of books.

But on the other hand, what about the authors who did the hard work to write their books in the first place and whose work others want to quote? Shouldn’t they get compensated for use of their hard work?  In theory, yes. But I think that compensation needs to be at least proportional to the amount of work quoted.  The problem is that if you take a typical non-fiction book of maybe 60,000 words, sold for maybe $16.99 retail, then quoting 100 words or so is only going to give the original author something like 2 cents share of that work.

Publishers will try to get around this small number by calculating the payment to take into account the number of books expected to be sold. And then they add some on top of that too.  So the 60,000 page book with the 2 cent quotation is expected to sell 5,000 copies, then a fair bulk payment should be $100.  But if there are lots of other quotations to pay for, the cost of fair permissions could get steep.  And if the price is higher, then it’s even harder.

It seems to me that the hard part is paying it all at once. If the payment could be just-in-time on-demand, then it would be reasonable to ask for a proportional share.  Except our financial transactional systems are not set up to work that way.  Transferring 2 cents between accounts is a non-economical transaction.  If there were a system to set up payments for that kind of thing, then perhaps there would be a way to be more fair.

But looked at in another way, the author who quotes (call him Jim) is also doing a favor for the author who is quoted (call him Bob). Bob’s work might be totally forgotten and ignored over time, but gaining a foothold in another Jim’s work through quotation ensures Bob’s work will live on a little longer.  Call it idea stickiness.  Easy and cheap permission to quote enables ideas to spread and become more sticky.  Without easy and cheap permission to quote, good ideas can’t become sticky until they are more widely accessed, which might be when they move into public domain far after the author’s death.  (Thus, there is a very practical reason for artists/authors who are only famous after they are dead. Or 70 years after they are dead. That’s if they aren’t completely forgotten.)

In the meantime, it seems to me that I as an author can do something to make it easier for others who might want to quote me.  On my copyright page, I could place a notice stating that quotations of my work below a certain word count—say 100 words—would be free, with my permission still required.  Then I can state a fair rate for quotations above that word count. What this would do would ensure that those who use my work have the freedom to do so in small amounts and that those who might rely on it heavily would know right off what they can expect to pay if they want to use more.

Here’s an article that talks about the difficulties of creating story anthologies for children: The Perils of Permissions.

It is easy to see in this case that the story authors and their publishers want to profit off the reproduction of their work if it would be included in a children’s anthology. But yet, there is also the factor that being included in an anthology at all is a fabulous way to increase their exposure in the market, to increase story stickiness.  It’s a valuable a service to the author, increasing their distribution.  There’s a give-and-take here that has to be considered.

Here’s another article on the problem of permissions, fromanother scholar who needed to use work from authors overseas.

His main problem was difficulty reaching authors in the first place, let alone obtaining permission. (Evidently African authors can be an elusive bunch, especially if they’ve gone through a difficult experience such as imprisonment and torture in Apartheid.) The lesson here is that if you happen to want to approve permissions requests personally, then you’d better keep your publisher informed of your current address.  

In this next article, a biographer who wanted to write aboutShel Silverstein found his efforts to get permission from Silverstein’s estateto be stymied completely.  (warning: a little bit of naughty language)

This article suggests that there may be some very popular creators of works that do not get studied because their estates do not give permission for their works to be reproduced as part of commentary by scholars.  Just think about that for a second.  Shel Silverstein could be studied like the great poets of yore… but his estate won’t allow it.  (Of course, there is the little sticking point that Silverstein’s work was not just in children’s literature, but also in certain (cough) adult magazines (cough), and he also wrote some songs that were a bit profane, both bits of a curriculum vita which could certainly be a bit of a shock.  With that perspective, it is likely that Silverstein’s estate seeks to keep that unsavory bit of info from gaining wider currency.)

So it seems that one must be prepared to give appropriate permissions during one’s lifetime, but also give fair instructions to be used by executives of one’s literary estate.