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.