Saturday, January 29, 2011

Know Your Rights: Poetry and Copyright




So there I was, stepping into the offices of the Poetry Foundation to drop off a contract for a piece I'd written and pick up a couple of lunch companions, when I found someone pressing a svelte little printed document into my hand. Glancing down, I read the title: "Code of Best Practices for Poetry."  Fantastic, I thought: here at last was the guide that would give me such useful tips as "Don't use too many rhyming couplets — people find that annoying nowadays" and "Writing another pseudo-Ashbery poem? Ask yourself why before proceeding with extreme caution."  I wondered: dare we hope for an appendix on the care and feeding of egomaniacal power-brokers in the poetry demimonde?


Four hours later, when the remains of the massaman curry had long-since been carted away by the long-suffering waiters at Star of Siam, and Issues of Great Importance permanently resolved by the consensus of the gathered poets, I popped the document out of my pocket for a proper looking-over.  As it turns out, it wasn't a guide to the best practices for poetry: it was a guide to the best practices "in fair use for poetry" — a set of guidelines for using copyrighted material in criticism, scholarship, performance, and in one's own poetry.  And it was good, too: we've needed something like this for some time (if for no other reason than to put bullies like Paul Zukofsky in their place — I mean, PZ has been trying to intimidate people for years about the use of Louis Zukofsky's poetry, and now his over-stepping of his legal rights  will be seen for what it is).


I had the privilege of playing a small supporting part in the creation of these guidelines, which emerged from interviews with many poets across the country.  But the real work was done by a host of legal minds, under the general guidance of Peter Jazsi of the Program on Information Justice and Intellectual Property at American University, who worked along with Professor Patricia Aufderheide  of American University's Center for Social Media and a Legal Advisory Board including Michael J. Madison, of University of Pittsburgh School of Law, Gloria C. Phares, of Patterson Belknap Webb & Tyler, and Elizabeth Townsend-Gard, Tulane University School of Law.  These are some serious people in the field of copyright law: they're responsible for the Best Practices guidelines for documentary film, and they've advised many other industries on these issues.  They know what they're talking about, and they know how to listen, too: the guidelines they developed represent a consensus view from a broad and deep survey of people in the field.


The general consensus, says the document, is this:




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.


And here, in the briefest form possible, are the general guidelines on fair use for material that remains in copyright:

1. Regarding Parody and Satire



PRINCIPLE: Under fair use, a poet may adapt a poem or a portion of a poem in order to (1) offer a direct or indirect critique of that poem, its author, or its genre; (2) present a genuine homage to a poet or genre; or (3) hold up to ridicule a social, political, or cultural trend or phenomenon.

2. Regarding Allusion, Remixing, Pastiche, Found Material, etc.



PRINCIPLE: Under fair use, a poet may make use of quotations from existing poetry, literary prose, and non-literary material, if these quotations are re-presented in poetic forms that add value through significant imaginative or intellectual transformation, whether direct or (as in the case of poetry-generating software) indirect. 

3. Regarding  Education



PRINCIPLE: Under fair use, instructors at all levels who devote class time to teaching examples of published poetry may reproduce those poems fully or partially in their teaching materials and make them available to students using the conventional educational technologies most appropriate for their instructional purposes. 

4.  Regarding Criticism and Illustration



PRINCIPLE: Under fair use, a critic discussing a published poem or body of poetry may quote freely as justified by the critical purpose; likewise, a commentator may quote to exemplify or illuminate a cultural/historical phenomenon, and a visual artist may incorporate relevant quotations into his or her work. 

5. Regarding Epigraphs



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.

6. Regarding Online Use



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. 

7. Regarding Literary Performance



PRINCIPLE: Under fair use, a person other than the poet may read a poem to a live audience, even in circumstances where the doctrine otherwise would not apply, if the context is (1) a reading in which the reader’s own work also is included, or (2) a reading primarily intended to celebrate the poet in question. 

There are, of course, subtler points to be made regarding each of these principles, including limitations.  You can find the whole document online if you're interested. It's a great way to begin to understand your rights. 


40 comments:

  1. Anonymous9:30 AM

    Any ideas about how all this applies to archive material; stuff that's not been published. The other thing is that it's the Presses that are worried about this stuff, running scared from PZ et al.; I don't think there's much chance that they could be persuaded to test some of these fair usage cases in court for poetry criticism. And bullies like PZ won't be reined in by such as the above because they can still threaten to withhold permissions for the archive stuff if authors don't kowtow to them regarding their extra-legal whims.

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  2. Hi Anonymous,

    One thing this document may do is make presses less jumpy. Things have been as bad as they've been in part because no one in publishing had any notion of an industry standard to which they could appeal: now they have one, with the weight of some serious legal thought behind it. The documentary film industry was a fraught with anxiety as the poetry world, but things have improved a great deal since the introduction of new guidelines.

    As for PZ: well, he can threaten all he wants. But it seems unlikely his more extravagant claims would stand up in court, and at some point someone's going to call his bluff when he threatens legal action. He can then either back down or go to court and, in all probability, lose -- which would mean shooting himself in the foot regarding future instances of the use of LZ material.

    Bob

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  3. Bob (and the Poetry Foundation), I have an important question, or two:

    On this:

    >PRINCIPLE: Under fair use, a critic discussing a published poem or body of poetry may quote freely as justified by the critical purpose; likewise, a commentator may quote to exemplify or illuminate a cultural/historical phenomenon, and a visual artist may incorporate relevant quotations into his or her work.<

    I'm wondering, then, if the Poetry Foundation should by all rights publicly and prominently support me and Rich Owens of Punch Press in the matter of the barely veiled threats of lawsuit made against us by the Estates of Kenneth Koch and Frank O'Hara, as well as by Knopf Publishing (with the explicit backing of poets Tony Towle, Bill Berkson, Ron Padgett, and Jordan Davis)? These threats made because we wished to use about six to eight lines each (within a book of 180 pages!) from Koch and O'Hara, in A Question Mark above the Sun: Documents on the Mystery Surrounding a Famous Poem "By" Frank O'Hara"...

    And if the Poetry Foundation would choose not to offer some statement of support, then would it be safe to assume that these principles are to be taken as valid only in cases where "convenient" or "comfortable" to defend them?

    I am asking this very seriously. There is a rather startling extant case of violation of these principles, and the target and victim is a small poetry press, essentially threatened by one of the largest publishing conglomerates in the world (the parent company of Knopf is Bertelsmann Inc.). Again, are these principles meant to be defended in egregious instances of abuse, regardless of the "cultural weight" of the transgressor, or are they merely a symbolic protocol barely worth the paper its points are written on?

    I guess we'll see?

    For more information directly relevant to this, see here: http://thechagallposition.blogspot.com/2010/09/you-and-what-army.html

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  4. Hi Kent,

    You'd have to ask people at the Poetry Foundation about this, I think.

    For my part, all I can say is this: I think that in commissioning this comprehensive study, and in publishing the results, the Poetry Foundation has already done a great deal to help people in situations like yours. When you find yourself in a position where you're in conflict with others about the fair use of copyrighted material, you now have a set of industry best practices to which you can refer. This should help prevent legal actions, and could come in handy if you end up in a legal action. So I wouldn't get angry at the people who've just done something that can help you and others in your situation.

    I doubt that the PF would come forward in individual cases -- it may even be in violation of the way they're constituted as a non-profit foundation to do so (I don't know this, but I suspect it may be the case).

    I think they've done a great deal in helping bring this document into existence. A lot of time and effort, and not a little money, went into the effort. And it gives you something to which you can appeal. I imagine the rest is up to you.

    Also, the Foundation helped sponsor this, but they didn't write it. I listed some of the lawyers and academics who did. Maybe they're the people you should contact.

    Bob

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  5. Bob,

    Your points are well taken. There is, admittedly, some emotion showing on my part. Can't deny it. The whole affair was somewhat tough to take...

    And I suppose the toughest thing about it all has been that the attacks on the project (attacks that were groundless and made by people who never even saw the manuscript!) were quite well known within the poetry world, particularly after David Lehman twice blogged on the matter at BAP (a number of other sites noted the issue, as well).

    And yet despite this, despite the news being prominently out there, only a handful of people saw fit to even SAY a public word about it. Or to INQUIRE directly about it. Here was a small poetry press under explicit legal threat, including from powerful interests in the publishing industry. In fact, among those who did say something about it, some (including Ron Silliman) shamelessly cheered the assault. Never, at any point, did any person associated with the Poetry Foundation utter a private or public word about it. Never was a question asked back-channel about it. Not even was an objective news-link item offered, something that would have been quite simple to do, as a way of at least helping to call attention to a very unfair situation: a situation that truly, hyperbolic as it may sound, has to my knowledge no precedent in the history of small-press publishing since (in much more momentous case, granted) the assault on City Lights over Howl.

    In the end, the publisher of the book felt compelled--so to guard against legal actions he could not afford to defend himself against--to suppress both the covers of the book and all direct quotation important to its hypothetical case, even though any court of law would have found the quotes easily within Fair Use practices. In other words, Richard Owens would surely have won any trial, but he would have been bankrupted in the process--this is a strategy media corporations are at liberty to undertake: to threaten even when knowing they don't have a case, to conquer through intimidation, knowing the sued party won't have the financial means to undertake a prolonged defense.

    So that's the source, I guess, of my emotional post. I suppose this one is just as emotional. But I AM glad that this document is there. Yes, it is a very good thing that it is. I applaud it. One thing it may allow us associated with A Question Mark to do, in fact, is to publish the larger edition of the book with all quotations restored. We'll see.

    But I am, admittedly, still angry that some well-placed (or not so well-placed!) people who should have spoken up some months back never did. And I have my feelings about the fundamental reasons they didn't. And those reasons have everything to do with the power arrangements, influences, connections, and attendant protocols that structure the poetry field. These, by and large, will usually trump principle, when the cards are on the table.

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  6. The concluding paragraph to my comment above might give the wrong impression. I certainly don't mean the poetry-field dynamics to which I allude were the general reason so few chose to speak in defense of Punch Press. For most, obviously, the book just didn't even register. What I mean is that in *some* instances (and some of them quite prominent) the failure to speak out in such a clear test case is to be "politically" understood.

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  7. copyright on creation correct?

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  8. Anonymous1:55 PM

    kent johnson was never "threatened" with a lawsuit. this is why no one's commented on it.

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  9. Hi Anonymous,

    I don't know whether Kent was threatened with a lawsuit or not. I have no problem with the two of you discussing the issue here, if that's what you want to do and this is where you want to do it. All I'd ask, if it does turn into a disagreement, is that you sign your name to your opinions, out of courtesy to Kent.

    All best,

    Bob

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  10. Anonymous3:09 PM

    i don't have any interest in arguing with kent on this non-issue. i do feel the need to pipe in and remind people of his claim's non-status, though. kent's a brilliant hoaxist and propagandist, he knows the more arguments over the legitimacy of this non-existent threat, the more legitimate it seems. i can't knock the hustle, but i think it's good to enter these discussions just to remind people that kent's claims are bogus.

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  11. We received strong written admonitions from both Estates *and* from the top office of Knopf, explicitly refusing permission to quote. The unambiguous message received, and it was sent more than once, was that legal avenues would be pursued if we published a single line from the work of either poet. This even though our requests were very modest (again, about *six lines* for each poet) and clearly within boundaries of Fair Use.

    So in regards to the comment by "Anonymous" (and what's up with all this anonymous commenting when it comes to this issue, I wonder?), why don't you send an email to Rich Owens, Editor of Punch Press, and ask him? Or maybe you'd think he, too, is making things up? Actually, why don't you write Tony Towle, Bill Berkson, or Jordan Davis? They might be able to offer some information, as well.

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  12. Okay, then. So we've got Kent saying "check my sources" and Anonymous saying "look at Kent's prior hoaxes" and "this is a hoax" (and also "Kent is wrong but I'm not going to argue with him, or sign my name").

    Looking at the matter without trying to take a side, I'd say it is now incumbent on the guy who's calling Kent a liar to check Kent's sources.

    That seems fair, doesn't it?

    Bob

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  13. Anonymous3:31 PM

    kent's a known hoaxist, and he won't cite anything he claims. end of story. who cares who i am. i'm not claiming anything, or asserting anything. skepticism as a passive state. believe whatever you want about kent's claims, i'm just pointing out that he won't back them up, even after repeated requests for him to do so.

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  14. Anonymous3:39 PM

    kent hasn't posted any sources. i have emailed owens (months ago). he says the letter exists, but just like kent, refuses to cite or publish any part of it. and i'd just like to note that the publishing of this letter would be protected under much legislation, and judicial precedent. dead ends.

    anyway, like i said, believe whatever you want. i'm just piping in in case anyone cares about evidence when they're deciding what they believe. there's none.

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  15. Well, I'm not sure I can buy what you're saying here.

    "I'm not claiming anything" is, I think, at odds with the prior statement that "Kent's claims are bogus."

    And Kent gives some names beyond the publisher Owens (Tony Towle, Bill Berkson, Jordan Davis). I'd say checking in with them would give your claim some heft.

    I cannot help but think you're being a bit disingenuous, Anonymous.

    With respect,

    Bob

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  16. BOB:

    thanks for permitting this discussion to take place here. i've watched this dialog unfold over the past couple days but, even now, i'm incredibly reluctant to participate in it all -- and i'd like to think this will be the last time i do participate in any discussion concerning this topic.

    the skinny is, quite simply, this: immediately before the release of Question Mark, which was subsidized entirely by advance subscription and which was *sold out* in advance of publication, i received a series of aggressive and, in several cases, stunningly insulting hard-copy, certified letters *and* email messages -- first from the Kenneth Koch Estate in late August, then the O'Hara Estate, then various senior editors at Random House. in many cases a number of poets close to these estates were carbon copied. lawsuits were threatened time and again, and in clear and unambiguous language. some of these messages and letters i've shared with concerned friends, asking them simply that they not make these documents public for a range of reasons i don't feel the need to disclose here.

    viz. from August 2010 through December 2010 i received more than a few threats of legal action from both estates and Random House which were intended, i believe, to preempt the publication of the book.

    credible or not, i refuse to furnish cantankerous gadflies and anonymous neigh-sayers with the letters. nor do i plan to address this issue again. the uninterrupted string of threats, coupled with unanticipated difficulties on the home front, made living through the last months of 2010 impressively difficult and i still find myself wildly bitter about all of it. but Kent's book is a wonder to behold and i couldn't be more satisfied at having published such brilliant, genre-bending and critically incisive work.

    no more free lunch ... rich ...

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  17. Anonymous4:13 PM

    fair enough, robert. i don't mean my claim that kent's claims are bogus as a claim-proper. it's equally uncorroborated as kent's. i'm not asking you to "believe" me though. just questioning kent's lack of evidence. i'm more than done here, though. thanks for posting my responses even though i rudely ignored your request to identify myself.

    all the best to everyone, especially kent, good luck with this one. it's been interesting.

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  18. So, as I understand it, this where we're at:

    On the one hand we have an anonymous accusation of lies and hoaxes.

    On the other hand we have a guy who likes to do literary hoaxes, and his publisher, denying the anonymous accusations.

    We have no documentation on either side of the issue. (And I'm not asking anyone to come forward with anything they aren't comfortable sharing).

    Whatever the situation is, I don't think there's much profit in pursuing it in the absence of evidence pro or con.

    Thanks to everyone for taking the time to have their say,

    Bob

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  19. Fascinating that the very fact of "Anonymous"'s comfortable anonymity speaks, so suggestively, to the depressing and self-serving timidness shown by so many poets in regards this issue-- which I remark on in my first comments above.

    Again, it was well known by many that a small-press publisher was under direct threat by powerful media interests, and practically NO ONE came forward to offer even a word of alarm or solidarity.

    Poets in Egypt, I'll bet, would have had more spine. See you at the AWP.

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  20. Hi Bob,

    It seems to me that the bigger and ultimately more important question than whether or not Rich Owens was threatened with legal action is whether or not the Poetry Foundation and other institutional cultural forces are willing to defend fair use when such use threatens the very conditions and assumptions that allow for our current faith of authorship as such.

    Micah

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  21. HI Micah (&Kent),

    I think the commissioning and publication of these "Best Practices" guidelines is the strongest defense of the fair use of poetry we've ever had in this country. It will change the whole field for the better. It will give poets and publishers confidence about what they can do, put an end to many idle threats, and let scholars proceed without fear.

    As for getting involved in individual cases -- I don't know why the Foundation (or any other organization) operates as it does. I can venture a guess -- that as sponsors of the new guidelines, they'd find their impartiality, and therefore the authority of those guidelines, undermined if they were seen as partisans in this or that case. But that's just a guess. You'd have to get in touch with someone from the Foundation to get a proper answer.

    Best,

    Bob

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  22. I hear you, Bob. But I can't help wondering if the Poetry Foundation (or some other institutional force) would voice their support for some other, more institutional press - say a major university press like Cornell or Princeton - if they were to come under similar fire as Punch for publishing a work by an establishment poet/critic - say Dan Chiasson - that drew into question the authorship of an O'Hara poem. I admit I'm speculating here, but I do wonder.

    And as for Anon: (s)he seems to equate Kent's long project of challenging modern notions of authorship with an assault on the Truth, an assault that (s)he seems to think should preclude Kent from the protection of fair use. An astonishingly conservative attitude!

    Yrs.

    Micah

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  23. Bob:

    I'm one of the people who've seen the documentation. The threats are real. I have a hard time taking anyone seriously who makes such "passive claims" anonymously. Then again, there are those who refuse to believe in the existence of A Question Mark..., merely because they haven't seen it (as noted above, the book's sold out). All of which helps drive home the point of Kent's entire poetic project remarkably well.

    This is also the last time I'll dash into this fray, but just to rehearse points previously made: Why would Kent and/or Rich fabricate legal threats that involve several prominent poets, the literary estates of prominent dead poets, and said poets' publishers? Wouldn't that constitute some kind of actionable slander? Why would those parties remain silent if indeed such slander had taken place? Oh, right... because "kent makes shit up."

    Rich and Kent are under no obligation to produce "proof" which can just as easily be cast into doubt as anything else. I think the frustration expressed above with regards to the poetry foundation is not an expectation that it will arbitrate every case that comes up, but that it should perhaps be expected to put its money where its mouth is when it comes to helping protect and defend individual poets vis-a-vis "fair use."

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  24. Hey Micah and D.,

    I don't want to be cast in the role as "spokesperson/defender of the Poetry Foundation," but I will say (again) that the creation of the best practices document was indeed a matter of their putting money where their mouth is.

    A quick question: has Kent, or someone from Punch Press, gone to the Poetry Foundation, or to "some other institutional force" with the details of the case and asked them to take a position on this case? If not, that seems like a good place to start. I don't imagine the foundation would leap forward to defend Chiasson or anyone else if no one took the time to have a meeting or phone conversation to discuss the case.

    My advice to Kent has been, and remains, to send an email to the foundation, or to some of the people who drafted the best practices documentation.

    Best,

    Bob

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  25. PS for D Hadbawnik:

    Re: "Rich and Kent are under no obligation to produce "proof" which can just as easily be cast into doubt as anything else."

    I don't think anyone has demanded that anyone come forward with any documentation. I'm not against you here -- I just don't see where you're coming from with the remark.

    Best,

    Bob

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  26. Bob

    Fair enough. not directed at you, but hasn't anonymous "passively" demanded evidence?

    best,

    David

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  27. Just want to point out that "Anonymous" has posted on my blog as well—almost word for word what he or she has posted here. This was in response to my post this morning (see here). I responded to him or her here, where my key point is that no one mentioned by Kent as being involved with the threatening letters has come forward to deny their involvement or its existence, which to me argues for the authenticity of these letters. Nevertheless, I can certainly understand why Richard Owens would not want to subject himself to Internet standards of evidence—Obama's experience with the Birthers doubtless fresh in his mind. Though I will say that they, at least, attach their names to their rejection of his birthright.

    One more point: Anon keeps calling Kent a "hoaxist," as if A Question Mark Above the Sun could be considered a hoax. It cannot. Kent claims only to raise questions based on apparent anomalies in the authorship evidence. He has a theory that means to explain those anomalies. He has attached his name to the theory, and like any literary theorist he has attempted to quote evidence that favors his theory. It is the party of Anon which has denied him the ability to quote that evidence in print; at the very least, Anon supports the suppression of Kent's book. This ought to give pause to anyone with a stake in the free exchange of ideas.

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  28. "free ideas"
    "fair use"
    these phrases/buzz-words are oxy-morons, huh?
    call my lawyer! quick
    before I lose my tenure
    or
    worst

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  29. Bob,

    To respond to your question: Yes, back when a number of postings were coming out on the matter, I sent some links to the Poetry Foundation (there were blogs by John Latta, David Hadbawnik, Edmond Caldwell, David Lehman, Mike Kelleher, Joe Hutchinson, Michael Hansen, a couple others I'm blanking out on now, probably), suggesting, specifically, that this was a somewhat scandalous development that deserved the institution's attention. There was never even the courtesy of a back-channel acknowledgment, much less any notice on the PF site of the rather disturbing situation. Certainly a link to one of those posts might have been something "newsworthy" for the PF's "News" section, given that, arguably, no small poetry press in America had been subject to such intimidation from established forces since City Lights with Howl? Here is a partial selection from the PF "News" items two or three weeks following the release of the information, of which, again, the PF was obviously aware:

    --Daylight Savings poetry in the NYT
    --Poet, be like Bill Gates
    --Not all conceptual poems are treated equal
    --"Luminous" and "fun", an app for erasures
    --Saving Grace: A children's treasury of Mark Smith's verse
    --Speak, Machine!
    --Hoop dreams for poets
    --You epithalalium is showing
    --If you give me a dollar, I'll take my top off
    --The politics of poetry and pie

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  30. Kent,

    I see.

    Well, I'd say if you're serious about wanting the Foundation's support, you should probably phone the offices, ask to whom you might speak on this issue, and actually ask for support.

    Or at least set up a meeting or (if you don't want to drive in to Chicago) a phone conversation.

    Indirection and suggestion don't really seem like the right approaches if you want public support on a legal issue.

    If you actually speak to someone, you'll get answers, I bet.

    Bob

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  31. Bob,

    You mean email doesn't work anymore?

    Actually, though sort of a side note: I have a phobia of the telephone, as the PF can tell you, actually (they once asked me to do a Podcast on C.D. Wright, and I was so incoherent due to panic that I told them I was giving up and that they should get Steve Burt or Bob Archambeau do it--they got Burt and he was incredibly good, of course, almost as good as you are on their Podcasts, Bob. What can I say? I have phone anxiety.) But I did get on the death-black machine a couple months back and try to speak with Bill Berkson when this was all going down. There was a party, and he was busy talking to others when I called. I left my phone number, specifically and earnestly asking that he call me back so we could talk about his endorsement of the threats. But he never did. I say "endorsement of the threats" both because his name is added to the first letter of warning we received (along with those of Jordan Davis, Tony Towle, and Ron Padgett) and because he by mistake later forwarded Rich Owens an email thread containing many snide comments by people involved about me and Rich and the book: Comments which included, amazingly, excited praise for Jim Behrle's infantile attacks on the project at his blog. One comment by Berkson said something to the effect that Rich and I seemed to have gone quiet and that obviously the "legal tactic" was working. I am not making this up.

    Anyway, your comment, Bob, honestly, seems like a bit of grabbing at straws. My point is that the PF (and quite a few other prominent folk, like--and at least he's open about it--Ron Silliman) don't want to touch this issue because, in fact, they have close allegiance to those who tried to suppress the book. Simple as that. It's poetry politics.

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  32. In the prior list of some of the blog posts there last fall about A Question Mark, I failed to mention Mark Scroggins's "Books, Bonfires, Lawyers."

    Scroggins, as most people know, is one of the finest critics at work, and I know people at the Poetry Foundation follow his blog-- as they follow some of the ones I mentioned previously, notably John Latta's, where much information related to the book has appeared.

    So just to make clear that there can be no debate about the PF being fully aware about what was going on...

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  33. Hi Kent,

    Sorry to hear about your phone phobia. I'm sympathetic: I've got a fear of heights that's pretty visceral, so I know how it can be.

    Anyway, my real point isn't about phone or email, I suppose -- what I'm trying to find out is whether or not you actually came out and asked the Poetry Foundation to make a public statement in support of you.

    A little while ago you emailed me the message you sent to a couple of people at Poetry magazine (affiliated with the foundation), and I have to say that if I had received it, I wouldn't have thought you were asking me to come forward and take a position. You don't come out and ask.

    As for the claim that the PF doesn't "ant to touch this issue because, in fact, they have close allegiance to those who tried to suppress the book" -- well, I don't know. I've never heard of them taking anyone's side in a copyright dispute. Do you have evidence for this claim?

    Unless I'm missing something, I've got to say that I don't think the anger at the PF is justified. If what you sent me was your only communication, what we've got is this: you didn't come out and ask for support, and they never gave support.

    It seems like the ratio of "effort to get support" to "effort spent complaining about the failure to get support" is off, here.

    That is: unless there's some other attempt to communicate with the PF that you haven't mentioned (beyond the email you forwarded to me), you've spent far more time and effort wrangling around in this comments stream than you have in trying to get support.

    I'm not really sure what's at issue just now. So I'll just state my current positions, based only on what you've shown me:

    I'm all in favor of people being able to quote poetry.

    I'm against people trying to intimidate those who have kept to fair use by threatening lawsuits.

    I can't get too upset with the PF for not coming out and taking you side in this dispute when (as seems to be the case) you didn't really ask them to do so.

    I don't see the point in complaining publicly about the lack of support just now, but I do see the point of going back and clearly asking them (by whatever medium you feel comfortable with) for support.

    All best,

    Bob

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  34. >Unless I'm missing something, I've got to say that I don't think the anger at the PF is justified. If what you sent me was your only communication, what we've got is this: you didn't come out and ask for support, and they never gave support.

    Bob, I guess I don't quite know how to respond to this. Since when do people at the Poetry Foundation need to be "asked for support" in order that some kind of gesture of acknowledgment be proffered? Are you suggesting that they were unaware of the issue? Unaware that there seemed to be something highly unusual afoot, in regards the book? I can assure you they were not unaware. The email I shared with you (as did a follow up) puts forward a polite, unambiguous suggestion that the PF site make a note of the controversy, via a simple link at their "News" section to one of the numerous posts available on the matter. They publish a list of "newsworthy" items three or four times a week. I sent them four or five possible links they could cite. I did this because I thought they would deem the issue to have some broader implications for the poetry world, that they might at least wish for their readers to know about the issue and consider it, for the sake of some deliberation about poetry-field "Right Practices" writ large. That the PF might wish, that is, to put forward at the very least a news item-link (with no editorializing) concerning the fact of a small poetry press under aggressive pressure by prominent parties, including by one of the most powerful publishing conglomerates in the world. I thought it would be of obvious relevance for an institution like the PF to note that this pressure was being exerted over a book that does nothing more than offer a hypothesis about a poem by Frank O'Hara.

    I never, as I said, even had a back-channel of acknowledgment. To none of my messages. And Richard Owens never received any word, either.

    Really, Bob. I'm not going to go hat in hand to the Poetry Foundation for their support when they patently can, and should, take a position (or at the very least offer acknowledgment of the problem's existence!) of their own accord. But in any case, you are missing something here: I am asking why they chose to IGNORE the matter all together, when there was ample discussion and concern about it in the poetry blogosphere. Why the utter Silence? And to wonder such about the most influential and most endowed poetry institution in the country seems perfectly legitimate to me.

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  35. Okay. We're going to have to agree to disagree.

    I think it is unreasonable to be angry at the Poetry Foundation for not expressing public support for you when you didn't ask them to do so.

    You, apparently, think that the organization should spontaneously express support for you, and that it is beneath you to ask for it ("hat in hand" -- really?), but not beneath you to complain when it is not forthcoming.

    I regret that I can't be in sympathy with you on this aspect of the affair.

    I really don't have anything more to say about it.

    I do wish you well, and I look forward to reading what you write.

    Best as ever,

    Bob

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  36. Bob, (comment in two parts)

    I've not yet referenced an anecdote that I feel is very suggestive in regards all this, and I will do that below. But I wanted to first make a few remarks on our own exchange. As I think you know, despite our disagreement here, I have respect aplenty for your critical capacities and work (everyone should take a look at Bob's essay, by the way, in The Monkey and the Wrench). But in this discussion, your argument is uncharacteristically weak.

    You've spoken rather curtly in your last message, so allow me to be perfectly candid in return: You seem to be working hard to ignore the obvious regarding this bigger issue, trying to divert focus from it by alluding to supposed "inconsistencies" in my remarks. In fact, I have no idea why you think I'm suggesting the PF should have given some kind of developed defense of Punch Press early on in the fracas. I never said that. I asked, rather, and in hypothetical spirit, if it would not be consistent with their new "Right Practices" document for them to *do so at this point*, when what Rich Owens suffered is so clearly an abuse of those stated principles. I mean, it's a perfectly reasonable question, and I'm befuddled that you don't seem to think it is.

    I *did*, though, assume it should be expected of the PF site, as a forum which purports to be an open source of news for poets, to proffer a simple, objective, non-editorializing note/link about the controversy, as a courtesy to readers who might have wished to pursue the highly unusual developments on their own. I've said that I contacted people at the Foundation various times on this (directly to the Foundation offices and in personal messages), that I shared links, and that I stated in those communications that the situation was alarming and demanded notice. I've told you I never received a single peep of response (oddly, my correspondence to them on other topics seemed always responded to, with courtesy and promptness). Yet you keep implying that I am at fault for expecting too much, that there is nothing at all strange about the hush, and you continue to insist, and rather ridiculously, that it is incumbent on ME to further "explain" the situation to the Poetry Foundation when the concern was, and is, very clearly and prominently explained. And not just by me, to be sure.
    [cont.]

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  37. [actually, three parts!]

    I know you have warm relations with the folks at PF, and I understand that you would want to defend them. And I don't doubt they are all perfectly good people! I admire much of the work they do, and I am very happy that they have put out this document. What I am asking (since I seem to need to say it again) is WHY there has been not a smidgeon of acknowledgment from the most influential American poetry institution about a completely singular and disturbing assault on a small, struggling, but well-respected publisher of poetry: not any back-channels of query for further information nor, even, any acknowledgment of attempts at communication; not any notice of the various blog posts on the situation at the PF "News" items; not any notice of the matter at the Harriet blog, devoted, supposedly, to issues and items of relevance to the poetry community. That silence, to me, is astounding. Rather than me going to them now, pleading for support, as you keep suggesting, I'd think it would be much more logical, at this point, for the PF to say something about their choice to be so quiet on it all. And of course, someone from the PF, if he or she wishes, can easily join the conversation here. I'd be more than happy to "explain" my concern to them, as you say...

    Do you see, now, what I'm saying? You've claimed I'm requesting different things, that I'm making confusing complaints, and so forth. No, what I'm saying is quite level and clear, and it is in reaction to the jaw-dropping failure of an institution that proclaims "Right Practices" utterly *ignoring*, for five months on, what is arguably the most spectacular abuse of "Right Practices" we've had in the poetry world for a good number of years. I want an explanation. And since no one there wants to write me about it in private, I am pursuing my case here. Because I know they are reading.

    This is a serious topic for discussion, because the principles involved extend beyond the case of my particular book. And I can assure you that I'm not the only one who thinks so, even if only a few people have been ready to step in.

    Now, as I said when I started this comment, I've not yet mentioned something that is (I believe you should agree) deeply revealing of the bigger problem of indifference I'm highlighting. And I suppose you could see it as a big reason why I never exactly bothered prostrating myself before the Poetry Foundation, begging for some formal statement of sympathy, or whatever. As you'll see, I had a pretty fair sense from the start what the climate of reception to the issue likely was among prominent figures related to the institution.

    On September 6th of last year, shortly after news of the first letter of threat emerged at John Latta's blog--a post that, among others at the time, urged poets to express solidarity with Punch Press--someone copied and sent me a discussion about the Latta post at Don Share's Facebook page. (I have it saved and could easily reproduce it.) In that Facebook thread, and in clear reference to the post about the certified letter of legal threat Rich Owens had received (a letter with cc. to the Editor of Knopf and the four NY poets I've mentioned previously), Share, the Senior Editor of the Foundation's magazine, expressed his estimation of the ethical import of the matter (his comment came in midst of other sarcastic remarks by some of his Facebook Friends). He wrote, in full:

    "Big meh."

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  38. Two days before, I had sent Share the link to the post at Latta's, expressing to him that I felt the threat was a rather "remarkable development" deserving of consideration. No reply, of course. Though perhaps he thought I was on Facebook and that this would serve as his answer, I don't know...

    In any case, and even though I do have good feelings and admiration for Don otherwise, it speaks pretty loudly, I'd say, and might suggest to you it was no oversight, really, that not a word about the controversy was ever expressed by the Poetry Foundation. And the sad fact of such snide dismissal does indeed take us back to the query I made at the beginning of this discussion: How would these principles of "Right Practice" apply to the fate of the book A Question Mark above the Sun, and might we find some uncomfortable contradiction, now, between the proclaimed ethics of the Poetry Foundation and the "practices" of its representatives in the context of a recent test case?

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  39. Kent,

    We disagree on everything here.

    For me, the important thing is that you go after the people who threatened Punch Press.

    For you, the important thing is that the PF apologize and explain itself for not posting your links.

    For me, your best action is to ask the PF if they are legally able (as a non-profit) to intervene in what could be a test case for the best practices document. That would give you big legal guns in defending Punch Press.

    For you, it seems that sending what looked like "hey, FYI, here are some links" demands a response, and an explanation for a non-response.

    For me, the biggest impediment you have with the PF is your refusal to have a meaningful and clear exchange with them about what you could do together.

    For you, the biggest impediment you have with the PF is a conspiracy of the powerful against you.

    For me, Don's "meh" followed by 2 more days of mentioning your situation is ambiguous.

    For you, it is a sign of contempt or hostility.

    For me, it seems increasingly clear that you don't really want to go after the people who threatened Punch Press, but want to play out a victim act.

    For you, it seems increasingly clear that my three-times-ever lunching with Don Share have made me too close to the PF to see straight.

    For me, you keep shifting gears and changing explanations in order to justify your inaction on the legal issue, and to wallow in self-pity because the PF didn't write back to you.

    For you, I'm trying to get away from the real issue, which is that the PF should have done what you wanted.

    My engagement in conversation with you on this issue doesn't seem to be profiting anyone in any way. I have given you my best advice on how to try to get something done for Punch, possibly with the involvement of the PF. You have essentially told me you're too offended by the PF to do anything but fold your arms, pout, and await an apology that is not forthcoming.

    I do not want to take this exasperated tone. Therefore I do not want to discuss this with you anymore.

    Bob

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  40. .


    I’m afraid
    of the great reckoning,
    having to see ourselves
    when all gray walls collide
    and every dark oppresses…

    comfort me, beckoning
    blindly to any help, protect me
    from having to decide
    myself from my impressions.


    Copyright 2006 – Specimens-Selected Poems, Gary B. Fitzgerald

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