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. 

Field Report: The Truth and Life of Myth, A Robert Duncan Symposium

You know me, people: I like to hole up in my study and paw through the pages of obscure texts in solitude as much as the next soft-handed, grumpy, poet-critic-professor type. But last week I was dragged from my cave by the lure of not one but two unusual poetry-oriented events just a Metra ride away in downtown Chicago.

The first of these events was a focus group meeting in the offices of the Poetry Foundation to discuss the future of copyright practices for poetry. As many of you know, there's a bit of a crisis just now, in that the law is unclear on just what constitutes fair use — that is, legal quotation without permission — and publishers can get a bit jumpy about letting poets and critics quote from the poetry they publish. The lack of clarity about the extent of fair use has had a bit of a chilling effect, and has allowed guys like Paul Zukofsky to behave like bullies, threatening people who want to quote from copyrighted works even when the law allows for such quotation. If you want to see just how bullying Zukofsky can be, check out his list of demands to those who would quote from his father's poetry. This is probably not the place to go into detail, but suffice it to say that his view of his rights is a bit singular. He's aggressive and tenacious, though, and has intimidated a number of people, including the editors of Jacket magazine, who removed a group of essays on Louis Zukofsky after Paul snarled and yelped at them. Anyway, a group of concerned lawyers is working on setting up some guidelines for publishers that will, it is hoped, keep the poetry world from falling into the kind of litigious nightmare that has afflicted the world of popular music. It was good to be consulted.

As interesting as it was to be a part of the copyright discussion, though, it was a lot more exciting to drop by the Chicago Poetry Foundation's main event for the year, "The Opening of the Field," a seminar on the work of Robert Duncan. The energy kicked in even before I made it in the front door of the School of the Art Institute: as I paused on the street to make a phone call, Peter O'Leary came loping up to me, looking, as always, like a handsomer version of the young Robert Lowell. "You know where you're going, right?" he asked, grabbing me by the shoulder and hustling me inside. I haven't been steered into a building like that since the last time I was in New Orleans and wandered down Bourbon Street past the tourist bars and strip clubs. Once inside I found myself in a crowd that was both numerous and surprisingly familiar: in the seats immediately around me were the poets Reginald Gibbons, John Tipton, Ed Roberson, Joseph Donoghue, and Norman Finkelstein, the critics Richard Strier, Robert Von Hallberg, and Stephen Fredman (an old prof of mine from my Notre Dame days), and the Brazilian consul general, the writer João Almino (who — unlike any American consul to anywhere — has written on Duncan). I also ran into two poets I've read but never before had the pleasure of meeting — Siobhán Scarry (busy putting transparent sheets of poetry over one another to create multi-layered compositions) and Brian Teare. I heard Jennifer Scappetone, too, but didn't actually see her in the sea of literati.

The event I'd arrived at was a curious hybrid — the first half a poetry reading by Nathaniel Mackey, the second half a paper on Robert Duncan and childhood given by Michael Palmer. The event was actually the second part of the Duncan symposium, but I'd been unable to make it to an earlier panel of papers by Siobhán Scarry, Steve Collis, and Steve Fredman.

Anyway: it was the first time I've actually heard Mackey read in person, and it was impressive. He's got a good reading voice, and a cool, slightly distant delivery. As he dipped into various books of his, it became clear to me why he was such a good choice for an event honoring Duncan: not only did Mackey know Duncan personally, his work is deeply indebted to Duncan's poetry. Like Duncan, Mackey works in serial form, writing long, open sequences akin to Duncan's The Structure of Rime, and doing so with a sense of the spiritual possibility of poetry, a sense much akin to Duncan's own. Like Duncan, Mackey refuses to close down the possibilities of any part of his composition: a word or phrase that seems subordinate in one section of a poem may turn out to be the opening into a larger theme in another section, and the ongoing nature of the composition means the poem remains replete with infinite possibility at all times and in all parts. I think this connects with the spiritual aspirations of Duncan and Mackey, too: this kind of composition is a way of seeing the world in just one grain of sand, and of knowing that any other grain may also open up to a similarly large world at any time.

When Mackey writes about the oud (the north African ancestor of the lute), we get a sense of how he sees discrete moments of music, separated by time and space, as connected, as parts of some larger, historical song:

Some

ecstatic elsewhere's

advocacy strummed,
unsung, lost inside

the oud's complaint...
The same cry taken
up in Cairo, Cordoba,
north
Red Sea near Nagfa,

Muharraq

The kind of connection over distance he describes here seems to me to be something like a formal principle for his serial composition: the parts of the poems constantly reach backwards and forwards to each other; and they yearn to be adequate to some larger spiritual vision that can't quite be grasped, an "ecstatic elsewhere" that we sing of, and to, forever, without quite embodying it in song.

By some odd coincidence, I'd just been reading another African-American poet who works in serial forms, C.S. Giscombe (I'm reviewing his book Prairie Style for The Cincinnati Review). The chance to compare and contrast Giscombe's work to that of Mackey, with Mackey appearing in person, was a real privilege. I think the main point of comparison is the sense of the infinite possibilities of parts of the poem, and the desire to build onto passages that might not have seemed important when they first appeared in the serial sequence of poems. But the difference is this: while Mackey comes out of Duncan's kind of poesis, Giscombe comes out of Charles Olson, whom he's clearly read with care. Like Olson, Giscombe turns to particular landscapes (Canadian, Midwestern, what have you) as his bases of inspiration. Mackey is more free-form, I think.

But I digress. Mackey's reading was followed by Michael Palmer's presentation of a paper called "Robert Duncan and the Invention of Childhood." It began with a collage of familiar writing from the perspective of childhood: James Joyce's famous baby-talk opening to A Portrait of the Artist as a Young Man, both versions of Blake's "Nurse's Song" (the one from Songs of Innocence and the one from Songs of Experience), and a great passage about a princess who could change her head, and kept dozens of alternate heads in elaborate cabinets in her palace (this was from Frank Baum's Ozma of Oz). Palmer went on to discuss how childhood is a period of linguistic openness, where sense and nonsense coexist, with nonsense always lurking just below the surface of sense-making (think of the opening to Joyce's Portrait, where the toddler Stephen Dedalus tries to sing the songs he hears, and comes up with an almost-in-English lispy jumble of syllables, "O the green woth botheth" — it's a liminal case of sense and nonsense existing together). This, said Palmer, is the kind of thing Duncan valued — language, and especially poetry, not as a matter of statement-making, but as a constant hovering at the verge of significance, a hovering that maintains the potential of going off in another direction, or already having a significance that we haven't yet realized was there. Duncan, said Palmer during the Q and A that followed his paper, believed that the poet's ecstasy was like the infant's ecstasy, as the infant tries on all potential syllable combinations and waits to see which few the slow-minded adults can understand. As the father of a fifteen-month old kid, I felt the truth in this.

Palmer's paper must have built on something from earlier in the symposium, since he called us back to some earlier comments about the potential of language. Indeed, "potentiality" seems to have been a big word at the panel I missed earlier in the day: Palmer mentioned that Steve Collis had name-checked Giorgio Agamben, and potentiality is a big theme in Agamben's work. I'm not sure which direction Collis was going in, but I bet it had something to do with Agamben's notion that we should regard all works as gestures toward a larger potential, which can never be fulfilled in its entirety. "Every written work can be regarded as the prologue (or rather, the broken cast) of a work never penned," wrote Agamben in Infancy and History, "and is destined to remain so, because later works, which in turn will be the prologues or the moulds for other absent works, represent only sketches or death masks." My guess is that Duncan would regard this sense of the unending, and ever-unfulfilled, nature of writing as a positive thing, an opportunity to keep talking and aiming one's words at something like Mackey's "ecstatic elsewhere."

As the event wound down I trudged outside for some fresh air, thinking about how glad I was that events like this — with papers as well as readings — were going on outside the auspices of academe (albeit in an academic room). But I didn't get far with these thoughts before running into Zach Barocas, poet and punk rocker extraordinaire, with whom I compared notes on the glories of working in used bookstores (the Strand for him, the long-gone Aspidistra for me), before I hopped into a crowded cab for the next part of the symposium. This time we were extra-academic in venue, too: the Green Lantern Gallery in Wicker Park, which is really a big old loft-style apartment. You know you're in for the real poetry when the instructions for arriving at the reading say: "Green Lantern is above the Singer Sewing Machine shop; the doorbell doesn’t work but the door will be open." You read that and right away you know this ain't no bullshit Derek Walcott reading — this is the genuine, inconveniently located article.

The Green Lantern event began with a great deal of milling around, which was fantastic: I got to talk about the infant's relation to syntax with Palmer and Mackey, got to hear Steve Fredman reminisce about his days on a San Francisco poets' baseball team ("Michael Palmer was the archetypal third baseman, able to go from vertical to flat-out horizontal instantly"), and I got the lowdown on the best Canadian poets I haven't read from Steve Collis (Jordan Stutter and Roger Farr, and someone else whose name I can't quite decipher in my trusty Miquelrius notebook). Brian Teare and I compared notes on the poets at Stanford, especially Ken Fields and Eavan Boland, about whom we have similar feelings.

Since everything was running wonderfully late, I could only stick around for the first two readers — Steve Collis and Joe Donoghue. I'm in dept to both guys. Steve and I first met about a dozen years ago, when we traded chapbooks in the Louisville airport. He's sent me a lot of his work since then, and I've admired all of it. I've just not been prolific enough to send him much of mine. And Joe Donoghue? I think he paid for the bourbon when he and I and Norman Finkelstein hung out at the MLA last December in Philly. And I suppose I'm more in debt now, since each delivered a fine reading entirely appropriate to an event held under the aegis of Robert Duncan.

Collis' early work was very much in the mode of Duncan, and while he's moved on somewhat from that mode, the influence is still clear, even in some of his titles — "Poem Beginning with the Title of a Cy Twombly Painting," for example, echoes Duncan's "Poem Beginning with a Line by Pindar." By a nice bit of synchronicity, Collis also showed a reverence for Michael Palmer, using a line of Palmer's ("There's still no truth in making sense") as an epigraph for "Gail's Books," Collis' powerful elegy for his sister. Joe Donoghue read from a serial poem called "Terra Lucida," and was, if anything, even more Duncanesque than was Collis. He worked some fine anaphoric repetitions while speaking of "the coming of a world of light after a life of knowledge," which seemed very much down Duncan's street, especially after Joe introduced a series of troubadours, alchemists, and Bedouins into the poem. Both Donoghue and Collis got the real poet-visiting-Chicago treatment, in that their readings were punctuated by the rumble of the El, which passed just outside the gallery's windows, and by blues harmonica emanating from the nearby Double Door club. If there'd been a little random gunfire they'd have hit the windy city trifecta.

So: all honor to John Tipton and Peter O'Leary for putting the symposium together. They're clearly guys who know Duncan's poetry, and know how to throw a party. Long may the tattered banner of the Chicago Poetry Project wave.

**

My colleague Josh Corey went to Saturday's Duncan symposium events. Let's hope he blogs about what went down.

Intellectual Property and the Invention of the Poet

It's been a good week for poetry in the vicinty of chez Archambeau. I trucked on down to the redoubtable Danny's Tavern reading series to see Johannes Goransson and Joyelle McSweeney, and ran into a thick clould of poets hovering around the bar: Joel Craig (who gave me the DJ's take on MP3s), Josh Corey, Chris Glomski, Kristy Odelius, and a host of others. Also David Amrein, who conducted the orchestral settings of a couple of my poems this spring. The next day I got to hang with Don Share at the Arts Club, and today there's a John Kinsella reading up at Lake Forest College. Meanwhile, books keep pouring in via the mail (faves this week include Patrick McGuinness' Nineteenth Century Blues and Jerome Rothenberg's Triptych).

But that's not why you stopped by.

You wanted to know how the modern concept of the poet came into being. Fair enough! The last four cups of coffee have given me the confidence to launch on an answer with a vigor I usually reserve for my Official Patented Sunday Morning Post-New York Times Rant In The Local Waffle House About How The Bush Administration Consists Of A Bunch Of Bad Dudes And We Oughta Do Somthing About It Dammit. (Oh eye-rolling denizens of the Highland Park Walker Brothers Restaurant, I beg your forgiveness yet again. I just can't distract myself enough with your placemat mazes and word-searches any more).

So here's the deal. The new Penguin edition of Ed Dorn's poetry had me thinking about an old quip of his, that "sensibility is no substitute for consciousness." Dorn has often been accused of being prosey, of writing essays that pass themselves off as poems. In a way, he sets himself up for that kind of accusation by following the poetics outlined in his quip. When he says sensibility is no subsitute for consciousness, what he's getting at is this: that the post-Romantic notion of the specialness of the poet's personality, and of the poem as a kind of aura of feelings cast by the poet over his subject matter is a very limiting thing. Dorn just doesn't buy what Wordsworth said about the poem being a matter of "feeling giving importance to action." For Dorn, this Romantic notion was still very much with us (he had a point — pick up a copy of any university-sponsored literary magazine produced outside of the crescents of land around southern Lake Michican or the San Francisco Bay and you're still just about certain to find, somewhere in its pages, a poem where an ordinary event or object is meant to be jazzed up to the level of poesis by the special sensitivity of the poet). And for Dorn this sort of poetry isn't, as a rule, of much interest. What he wants instead of a poetry of sensibility is a poetry of consciousness, which for him is always consciousness-of. Consciousness of things in the world, in history, in geography; consciousness of the objectively there.

I'm a weak-spined, pale-complexioned, soft-handed eclecticist when it comes to poetic style, so I tend to think of Dorn's poetic as something that worked for him, rather than as something that must be taken as an eternal verity. But his view of the poem as something more about the world than about the poet's sensibility put Dorn at odds with the pervading norms of his time — post-Romantic norms that have by and large survived within/alongside/around modernist norms. (a while back I blogged a bit on Marjorie Perloff's distinction between post-Romantic expressivism and Modern/Postmodern constructivism — gluttons for punishment can check it out if they really want to). Poetry, if you ask the ordinary early 21st century schmendrick, is more a matter of sensibility than it is of information. Dorn, with his info-shooting gunslinger, just wasn't having it, and so was kind of sidelined in the grand scheme of American of poetry (making a boatload of enemies by always speaking his cantankerous mind couldn't have helped either).

So how did this notion of the poet as a special sensibility, rather than an info-gatherer or Poundian village explainer come into being? (How it is slowly dying is another question, for which I'll need another pot of coffee to opine regally). I think I've got it: the development of copyright law in the eighteenth century. Let me explain!

In the eighteenth century, when most European countries were still trying to get their acts together vis-a-vis the idea of a copyright law, one of the main obstacles writers faced was the notion that all they did was present knowledge, and knowledge was a pre-existing entity, waiting out there for anyone to pick it up. It couldn't be "intellectual property," because it wasn't something you invented (notions of the social construction of knowledge were far off in the future, and even the idea that knowledge grew and progressed wasn't really a mainstream notion). The general idea was that knowledge was out there like air, and you could breath it in, but not own it. Martha Woodmansee, my current favorite Germanist, really nails the situation in her book The Author, Art, and the Market: Rereading the History of Aesthetics when she says:

The notion that property can be ideal as well as real, that under certain circumstances a person's ideas are no less his property than his hogs and his horses, is a modern one. In the country in which Martin Luther had preached that knowledge is God-given and has therefore to be given freely, however, this notion was especially slow to take hold. At the outset of the eigtheenth century it was not generally thought that the author of a poem or any other piece of writing possessed rights with regard to these products of his intellectual labor. Writing was considered a mere vehicle of received ideas that were already in the public domain and as such a vehicle, it too, was considered part of the public domain.

Eighteenth century opinion is pretty clear on the point. I mean, consider the outrage of the philosopher Christian Sigmund Krause, when he was confronted with the idea that an author had intellectual property rights:

With what justification does a person expect to have more property in the ideas he expresses in writing than in those he does orally? With what justification does a preacher forbid the printing of his homilies, since he cannot prevent any of his parishoners from transcribing his sermons? Would it not be just as ludicrous for a professor to demand that his students refrain from using some new proposition he has taught them as for him to demand the same of book dealers with regard to a new book? No, no, it is obvious that the concept of intellectual property is useless.

The guy sounds like one of those Copyleft activists — with whom I instantly have a great deal of sympathy every time I have to write to a publisher asking for permission to quote a poem, and every time I decide to photocopy a whole book and spend as much time looking over my shoulder furtively for the avenging librarians as I do fumbling in my pockets for more quarters. I mean, Krause would have gotten on well with those guys who used to follow the Grateful Dead around, taping all the shows, and declaring that music should be as free as love. (Full disclosure: I tried to tape a Dead show once, at Soldier Field. It didn't work out too well, but that was my fault. I was using the pocket-sized mini-tape recorder I'd used earlier that day to interview Eavan Boland for the Notre Dame Review).

So anyway. How could an author, in the incipient age of commercially viable print, make an honest buck? How could he lay claim to ownership of his writing? Well, if he couldn't do it on the grounds of owning the information, he could try another tack, and say that his particular way of experiencing and presenting the information belonged to him. No one can say they own your personality but you, right? Well: just say the work embodies your private sensibility, and then you can claim it as your own. A bigger blunderbuss in the eighteenth-century German philosophical armoury than Krause, Johann Gottlieb Fichte, fired off this shot in defense of the author's rights:

Each individual has his own thought processes, his own way of forming concepts and connecting them.... All that we think of we must think according to the analogy of our other habits of thought; and solely through reworking new thoughts after the analogy of our habitual thought processes do we make them our own. Without this they remain something foreign in our minds.... Hence, each writer must give his thoughts a certain form, and he can give them no other form than his own because he has no other.... [This form] thus remains forever his exclusive property.

So there you go. For Fichte, a writer is a sensibility. The notion really took off running with the Romantics, and staggers shaggily across the landscape to this day, gasping for breath in the postmodern air but not even close to having a full-on cardiac arrest. Dorn took his best shot at the beast (Roland Barthes wrote the premature obituary), but as it turned out the old gunslinger couldn't quite bring that wheezing buffalo down.