Code of Best Practices in Fair Use for Poetry: a vital first step

A quiet regular reader of Via Negativa who knows of my interest in such things tipped me off to a new Code of Best Practices in Fair Use for Poetry (via Boing Boing). It grew out of the earlier and most excellent “Poetry in New Media: A Users’ Guide” (which is still perhaps a more interesting document, especially to people outside of the United States). Developed under the auspices of the Poetry Foundation, the new document is a first crack at an articulation of Fair Use standards for the American poetry-making and -using community, standards that could not only guide use but could even conceivably influence U.S. copyright cases, because as it points out, courts deciding such cases often take into account “whether the user acted reasonably and in good faith in light of standards of accepted practice in his or her particular field.”

I’m a little uneasy at the way in which these new standards were generated without any popular input, any attempt to poll or crowd-source among poets and fans of poetry. The New Media Working Group panel members listed in the back of that earlier report [PDF] are a pretty high-powered bunch, and I’m sure they’re all fine people (one is a Facebook friend), but I don’t see any scruffy poetry bloggers or remix artists among them. (Poet and lyricist Wyn Cooper comes the closest. Almost all the others are academics.) We’re told they had “an additional information-gathering meeting in Boston in November of 2009. The Center for Social Media and the HMPI [Harriet Monroe Poetry Institute, part of the Poetry Foundation] then held six additional small group meetings, each with 10 to 20 participants — two at the 2009 MLA convention in Philadelphia, two at the 2010 AWP convention in Denver, and, in April 2010, two at the Poetry Foundation offices in Chicago.” MLA = Modern Language Association; AWP = Association of Writers & Writing Programs. So this was a very elite, academic, and exclusive process.

I hate to raise this objection, though, because I like most if not all their conclusions, and I think the document represents a huge step in the right direction. Moreover, as authoritative as they try to make it sound, nothing compels us to accept it — which is precisely why they should’ve worked harder to include more people in the drafting process. In their defense, poets rarely manage to discuss much of anything without considerable acrimony, and a more public process might’ve been hard to pull off. And nothing prevents a bunch of us hoi polloi from convening ourselves, consulting with some intellectual property experts, and trying to build support for another set of standards via a more open process. Since these initial, suggested community standards are, by the report authors’ own admission, incomplete, maybe that’s indeed what needs to happen next, six months or a year down the road.

The seven practices for which new standards are suggested are: parody and satire; new works “remixed” from other material; education; criticism, comment, and illustration; epigraphs; poetry online; and literary performance. I was especially cheered by the recommendations for epigraphs:

[…] Members of the poetry community generally found this practice to be non-controversial.

PRINCIPLE: Under fair use, an author may use brief quotations of poetry to introduce chapters and sections of a prose work or long poem, so long as there is an articulable relationship between the quotation and the content of the section in question.

LIMITATIONS:

  • Quoted passages should be reproduced as accurately as possible to reflect the poet’s underlying creative choices, except to the extent that modification is specifically justified by the purpose of the use.
  • Authors should provide conventional attribution to sources unless the original is readily recognizable by the intended audience or the absence of proper attribution is justified by the purpose of the use.
  • An author employing multiple epigraphs should draw from multiple sources unless there is specific justification for limiting quotations to one or a few sources.

I hope this standard becomes widely adopted, because currently all too many publishers require authors to get permission and in some cases pay steep fees for the use of epigraphs. I actually set aside a project of my own — a book-length poem that makes extensive use of epigraphs — and decided not to bother revising and pursuing print publication mainly because I couldn’t see running that gauntlet.

The “poetry online” section suggests a standard for people who like to blog entire poems from others without explicit permission:

PRINCIPLE: Under fair use, an online resource (such as a blog or web site) may make examples of selected published poetry electronically available to the public, provided that the site also includes substantial additional cultural resources, including but not limited to critique or commentary, that contextualize or otherwise add value to the selections.

LIMITATIONS:

  • Compilers of poetry sites should reproduce poems accurately, to reflect creative choices embedded in the poems they include.
  • Compilers should provide conventional attribution to source material no less extensive than would be appropriate for use in a conventional publication.
  • Where a poet’s work is reasonably available for purchase in volume form, compilers should restrict themselves to the use of single or isolated poems only.
  • In itself, a compiler’s inclusion of simple finding tools on a poetry site is not sufficient to justify an assertion of fair use with respect to quoted passages or poems.
  • Nor is the mere assertion of the compiler’s admiration for or personal association with a particular passage or poem independently sufficient to justify inclusion.
  • A blogger quoting a poem in a blog should use only as much of the poem as is necessary to the blogger’s specific goals, whether the purpose is providing commentary or making some other discursive point.
  • Poetry sites should formulate and enact policies to provide for prompt and reasonable responses to objections by poets (or their qualified successors) to either the fact or the form of any use.

Important as these standards are, they are obviously only applicable to works covered by U.S. copyright law — no other nation has something comparable to our Fair Use provisions. They are also predicated upon the assumption that most creative writers will continue to employ standard copyrights, rather than grant additional use rights with a Creative Commons license. I think that’s an unfortunate assumption. Working on the current Translation issue of qarrtsiluni, I’ve been frustrated to see wonderful poems we might not be able to publish because the current copyright holder for the works of some poet who died decades ago might be unknown or unreachable, and because translations are considered derivative works, even though they are completely new creations using borrowed templates. (Recipes and other sets of directions can’t be copyrighted.) If we as writers want the freedom to publish our own translations without having to ask someone else’s permission, or if we want to enjoy the kind of standards outlined in this report for works from around the world, we need to lead by example and apply Creative Commons licenses — the kind that don’t say “no derivatives” — to everything we publish. You know, “be the change we seek” and all that.

As I’ve argued before, the source code of the imagination is existentially open. We ought to follow the example of the Free/Libre and Open Source Software (FLOSS) movement and make sure we don’t let narrow self-interest stifle innovation and the flowering of poetic culture. Since I know a lot of people are enjoying Luisa Igloria’s poems in response to my Morning Porch posts, let me point out that, even if these new standards are widely adopted, they might not cover this kind of use without special permission from the copyright holder — permission I grant up front to anyone who wants it via a Creative Commons license. That’s because most of the time she is using the entire post. The new Fair Use standard for remixing, which includes “found poetry,” suggests that “quotations should be brief in relation to their sources, unless there is an articulable rationale for more extensive quotation.” So it’s pretty murky. Why not spell it out? The new report itself puts it best:

Poetry, as a highly allusive art form, fundamentally relies on the poet’s ability to quote, to copy, and to “play” with others’ language, and poetry scholars and commentators equally rely on their ability to quote the poetry they are discussing. In fact, poets generally acknowledge that essentially everything they do in their workaday lives, from making their poems to writing about poetry to teaching poetry, builds on the work of others.

Whether you’re a poet, a blogger of other people’s poetry, a poetry teacher, a writer who likes to quote poems in books or essays, or anyone who loves to share or build upon poetry, please do read, discuss, and hopefully help shape the successor to this brief but important document.

22 Comments


  1. It is wonderful to see your interest in the Code of Best Practices in Fair Use for Poetry. We think it will be an essential tool when you are creating using cultural products that are not Creative Commons-licensed, even when you are creating work that you may want to CC. In your editing and anthologizing work, the Code may be particularly useful to you in deciding when it is acceptable to reprint work or print translations of work without permission or payment. At the Center, we would love to tell others of your successes; please let us know at socialmedia@american.edu. Your comments on process are also very interesting. It may be of some comfort to you that participants in the workshops that crafted the consensus around the code included remix and digital poets. As with all the codes, these groups were kept confidential, in order to permit the greatest latitude for expression in the meetings.

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    1. Hi Pat – Thanks for commenting. Yes, as I said, I’m sure you had good reasons for confidentiality. I’m glad you strove for diversity in the participant base, but given how easy it is to set up and publicize web submission forms and online surveys, I don’t think a need for confidentiality precludes a wider canvassing of the poetry-making and -using public. I’d recommend doing something along that line for future iterations of the Code if you want real buy-in. The American poetry community is exceptionally Balkanized, as I’m sure you know, but most factions are online, at least, and there are a few listservs and blogs that almost everyone reads.

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  2. Your points about translation are well-taken; I had not thought about that aspect of fair use, etc. I’m currently working on an opera libretto based on a (barely) pre-1923 novella in Russian, and we have had some concerns over the translation issues (translator is not even identified in the text we have been using). I am reworking most of the material, so there isn’t really very much direct quotation in the libretto, but we do think about this stuff. It won’t matter much until (I hope) we get funding, but best to be prepared.

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  3. … and may I add, snarkily, that I work in academia and I am kind of tired of the phrase “best practices” and grow weary of committees that consist of folks chatting about theory when they are not necessarily contending with the actual experiences of the rest of us. Not to be purposely dense; I do understand the need, legally etc. And I think theory can be very valuable to understanding (hey I was a philosophy & literature major once). But. Artists tend not to use “best practices.” And poets are artists.

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    1. Hmm. I hadn’t thought about how their language might strike the ear of someone who works in a bureaucracy, academic or otehrwise — which would account for most poets in the U.S., I imagine. Since I am a hermit, I don’t have to contend with that much.

      Thanks for commenting, and best of luck with the libretto — sounds fun!

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      1. “Best Practices for Pedagogy in the Liberal Arts.”
        “Best Practices in Retention Strategies.”
        “Best Practices among Developmental Educators.”

        I keep my head down at the college and am staff, not faculty, but the BP thing is truly epidemic. And the sad fact that many (most?) US poets are employed in educational institutions may be what led to the use of this term among the folks who put together this proposal.

        Much of what I teach is that we “build upon the work of others” as stated in the document. It is a way of acknowledging and paying tribute to other literary artists, and yes–it should be done with some form of artistic respect and not out of crass commercialism.

        Crass commercialism being an unlikely link to poetry. Maybe so few are commenting because so few of us earn income from our original works anyway–and “exposure” therefore seems valuable in and of itself? (I mean, w/o accompanying remuneration, but with acknowledgment).

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        1. I think lawyers actually took the lead in drafting this document. Say no more, right?

          Yeah, to me, the very fact that poetry is so non-commercially viable is what gives us so much freedom — for example, to apply permission Creative Commons licenses as I am advocating. It’s very much in our interest to have bloggers spread our works around, filmmakers to envideo them, translators to translate them, etc. With the visual arts, for example, it’s a very different issue — image-stealing is rampant, and serious money can be made — or lost if the artist isn’t careful.

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  4. Hi Dave

    I just learned about this via twitter, looked at the pdf and then looked for a forum to discuss it and found none. I’ve never dug around the Poetry Foundation website but on a casual glance my eyes failed to find one. As you and Ann touch on above, I was baffled by their lack of inclusion of the idea of promotion. I want to promote/air certain poems/poets in hopes people WILL buy their books. Since most poets and books of poetry are abysmal commercial failures, shouldn’t the new media, with its ability to reach so many people, be used to create a new poetry renaissance? (OK, pie in the sky there but why not think big?) Is the fear of others profiting from the posting of poems actually helping to keep poets in their spartan garret?

    What if I want to create a regular podcast reading poems from books at my local library in order to encourage the public to check them out so they stay on the shelves? I realize this should fall under fair use, but if I repeatedly use the same poem or poems? If those podcasts are posted online and left up in perpetuity, then it does seem to infringe on those rights.

    I quote the poems of others on twitter. I don’t see that covered anywhere (though it’s hard to imagine a poet feeling threatened by quoting 100 or so characters from a poem), yet since it’s not within the framework of another original work, it would actually seem to violate fair use.

    Well, I could rant on. I wish they would consider poetry promotion, perhaps even give guidelines for poetry promotion (limit of posting of poems from a given volume or somesuch).

    I agree that this document is a wonderful first step and hopefully further discussion will result in revisions.

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    1. Hi Jen – Well, the Poetry Foundation’s Harriet blog did have open comments until a year ago, but they couldn’t moderate them effectively — they turned into vicious battlegrounds. So they closed comments for good — just as Ron Silliman did at his blog some 9 months later — and I can imagine that sapped any desire they might otherwise have had for providing public forums. Anyway, sure, they could do a much better job of fostering this discussion and providing guidance on copyright issues for poets and poetry fans, no doubt. But it is also our responsibility to educate ourselves about the law. It’s actually kind of fascinating to me how our legal system tries to balance property rights with free speech rights.

      Poetry is experiencing a bit of a Renaissance on the web, I think. Quite a few people have told me that reading poetry on blogs had rekindled an interest in buying poetry books, and/or engaging with poetry, that they hadn’t felt since college, and I’ve even heard from some who were never interested in poetry at all before they started to encounter it online, on their friends’ blogs. Quite often this is new poetry, original to the blogger, or posted on scruffy little webzines such as the one I operate (qarrtsiluni). Videos for Billy Collins’ and others’ poetry on YouTube have garnered hundreds of thousands of views. At least a half-dozen different poetry prompt sites have attracted enthusiastic communities of weekly responders, to say nothing of online workshop sites and forums.

      Reading an entire poem for a broadcast, including a podcast, is not covered by Fair Use as I understand it, but that’s one of the things that this first-draft code of poetry community standards didn’t get around to addressing. If we were to follow their suggestion for public readings, what you’ve described would be O.K., and I’ll admit I’ve done that once myself, in the very first episode of my Woodrat Podcast. It’s just the sort of thing most poets would be delighted by, I think, and my advice to you would be to go ahead and do it, but provide, as this new standard for bloggers suggests, an easy-to-find email address or contact form for authors to use if they want you to remove something. (Of course, removing something from a podcast and reuploading it could be a real pain in the butt if you don’t have a pretty fast internet connection.) Also, if you follow each poem or excerpt of a book with fairly lengthy commentary, I think you’d have a pretty strong case that such a use does constitute Fair Use (presuming it’s a U.S. author).

      Quoting on Twitter should be O.K. If anyone ever complains, it’s not hard to delete a tweet. The trouble arises when an aggressive copyright holder issues a takedown request to a blog hosting service (Blogger, WordPress.com) or shared webhosting provider. It seems unlikely in the extreme that a poet would do this, but you never know. Some webhosts have been known to comply with such requests by taking a site down immediately, without even giving the blogger a chance to appeal.

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  5. Just do it — don’t ask, don’t tell — it’s easier to say you’re sorry afterwards than to argue about why you want to do it in the first place.
    Fuck ’em.

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  6. ~:-) Mulling this last night, I found myself wishing someone would create a website where poets would post their rights statement with any hard copy publication, maybe naming X, Y, and Z as creative commons poems within that volume or even a more general statement about their position on their work. For instance, I’d heard quite some time ago that Lucille Clifton is very sensitive about copyright, so, though I love some of her poems, I wouldn’t post them. Or institute something like there is for music when after X number of years, a work converts to a freer use, if not outright public domain.

    Until, as you say, I’ll try to be respectful but not slavish. The spirit if not the letter.

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    1. There should be such a site; you’re right. If I weren’t already going crazy with all the different online projects I’m involved with…

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  7. This is awesome, Dave. Despite being a poet who spends a lot of time on the internet, I hadn’t heard about these standards of practice. Most of my awareness of questions of fair use comes out of my involvement in the Organization for Transformative Works and the community of media fandom; it’s intriguing to think about how the fair use questions I’m used to might or might not map onto poetry.

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    1. Oh yes, that’s right, you would know a lot about fair use, wouldn’t you? Well, anything you can do to spread the word about these standards would be great.

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  8. I like that they mention CC licenses and point out that any explicit license overrides their code.

    You’re right that simply licensing everything for re-use mostly makes life easier, but never underestimate the ability of people to screw that up. See the lawsuits over Woody Guthrie’s “This Land Is Your Land” despite an explicit license… Sure, it was dismissed, but having to go through the motions is painful.

    I’m often asked for permission (or notified of use) for some CC-BY licensed photos. It makes the likelihood of later misunderstanding much lower. But they don’t seem to mention contacting the copyright holder anywhere… For the potentially contentious issues surrounding on-line transclusion, contacting the copyright holder tends to be fairly easy.

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    1. Hi Jason – Thanks for the comment. You’re right, they should add that suggestion to the code.

      I have to think Woody Guthrie would’ve loved the FLOSS movement and the Creative Commons — not to mention the whole the way the corporate music industry has lost control of music production and distribution!

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  9. I am at the AWP conference, Dave, and I noticed:
    The people at the Poetry Foundation/Poetry Magazine table were handing out pamphlets that contain the basic Best Practices Code, & telling people to find the .pdf on the website.
    There was also a longer, fancier version (spiral bound, tabbed, cardboard cover) that several small presses and webzine folks had acquired (I didn’t find out from where, but the booklets were definitely produced by the Poetry Foundation.org).
    Furthermore, there was at least one panel on copyright law this time & one of the panels I attended included a discussion of copyright law as it pertains to review, critical essays, and collaborative work.

    So–AWP attracted 8000 attendees. At least SOME of them ought to be thinking about the copyright codes and the difficult balance between fair use, artistic license, rights retention (and whether it matters; to some writers it matters A LOT)…and academic use of materials.

    Maybe the discussion will get going now?

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    1. Outstanding! Thanks for sharing that info. Of course, there are some significant poetry communities that aren’t well-repesented at AWP, but it’s a good start. Very reassuring.

      Wonder what’s in the fancy version?

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  10. Thanks for this, Dave. I was at the AWP conference, too, and attended the conference session about this Code of Best Practices. I got the impression that, during the early stages of assembling this Code, much effort was made to get varied input from diverse poetry communities.

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