Catherine Daly

You Can’t Prove a Negative:  Continuing to Scan

by Catherine Daly


Like many not-quite-academics, one of my current projects is scanning works of poetry which are in the public domain, writing about these works, and locating people with server space online who might host these books. In addition to Project Gutenberg, which makes texts available as unformatted.txt files,, Al Filreis’ English 88 site, and John Mark Ockerbloom’s Online Books Site at University of Pennsylvania, which contains Mary Mark’s Celebration of Women Writers site, host books in their entirety.   Mary Mark’s Celebration of Women Writers site now hosts Genevieve Taggard’s first book, For Eager Lovers, which was published in 1922, and which is in the public domain (as are all books published before but importantly, not including, 1923). 

I collect books I find in pre-1923 editions.  I will eventually scan all of these books, but I am most interested in scanning the works of female modernist poets.  The vast majority of public domain texts now online are pre-1922 “classics” and translations of “classics.”  There are very few works by women available at all.

Since I began this project, I’ve learned some practical information about copyrights and online publishing that everyone working with poetry written in the earlier portion of the twentieth century and published in the United States should know.   Copyright for materials of this era can’t be researched online:  the U.S. Copyright office only offers online searches for materials published after 1978, which is a bit silly.  Those materials will be under copyright protection for quite some time.

When works are reprinted, they are re-copyrighted.  This is important to note since many small presses and academic presses fill their lists and anthologies with reprints of public domain materials, since there is no reprint or permissions cost.  For example, one of the books I will be scanning is William Carlos William’s Kora in Hell.  Most experimental poets know it from the City Lights edition; I was lucky enough to locate the 1920 edition with a lovely, uncharacteristic etching by Stuart Davis.  While in most cases only the apparatus and new introduction (there is generally one) in a reprint is under a new copyright, it is not possible to prove that no emendation or other editing was performed on the original text (and hence protected by copyright) without reference to the original text.  In other words, as far as free use of public domain materials is concerned, the City Lights version of Kora in Hell is useless. 

Savvier literary executors will republish public domain materials under their stewardship in a slightly edited form and with new front matter for a different reason:  many libraries will not allow access to frangible holdings in the public domain if a more recent version is available.  This republication can prevent anyone from using the work without obtaining permission.

I did not scan and upload Genevieve Taggard’s 1923 Hawaiian Hilltop, as it was not published before 1923:  it is not definitely in the public domain.  In fact, I didn’t bother to research the copyright and see if it was renewed or not.  Copyright for materials published between 1923 and 1964, like Hawaiian Hilltop, had to be renewed at twenty-eight year intervals.  The copyright on Hawaiian Hilltop would have had to have been renewed anywhere from 1950-1952 (there’s a window of time for renewal).  It would be worth checking renewal on this work in particular, because this is not a full-length book, and because its copyright came up for renewal immediately after Taggard’s death.  It is the sort of thing that might have been easily overlooked by a new literary executor dealing with a blacklisted author’s estate during the McCarthy period.  For example, the copyright on Lola Ridge’s Red Flag, while published in 1925, was not renewed:  it is in the public domain. 

In order to research Red Flag, I went to the Los Angeles Public Library, which, as all decent libraries do, has shelves and shelves of the print volumes of the Catalog of Copyright Entries.  For researching Hawaiian Hilltop, I would examine the 1950, 1951, and 1952 volumes for the renewal, photocopying the pages of all places the renewal could have been listed, looking for renewals by anyone who might be a publisher or an executor as well as every possible permutation of the author’s name.  For example, even in the case when a female author continued to publish under her maiden name after marriage, as did Taggard, copyrights are often renewed under her married name, especially when the executor is a relative. 

However, even if you do not find a renewal, you are in the business of proving a negative:  you are saying the renewal does not exist.  The material is in the public domain, but most academic journals, and academically sponsored servers and initiatives, etc., will not take the small risk of having to show in court that there is no renewal.  Many literary executors will threaten a lawsuit as a matter of course, whether or not they have a case.  This sounds much more frightening than it is; what are they going to do in court, show that copyright has been renewed?   If you yourself are willing to take this small risk, and own a server, you may make the text available online.   Some academic presses, especially in the case of copyrights that no one thought to renew on novels that might make good movies, pay and otherwise recognize (generally in their print editions) people or other small presses who do not hold the copyright as copyright holders in order to avoid the risk of litigation. 

Copyright is a property right:  it may be transferred in specific writing, and it may be willed and inherited along with other property in an estate.  While some authors appoint qualified literary executors, and those executors appoint people to take their place as they age, more authors allow control of the work to pass to their heirs, or allow relatives who are not writers or lawyers to act as literary executors.  While some of the archives of materials writers collect are quite valuable, and academic institutions pay millions of dollars to obtain them, more archives have a minimal value, and that only to academics.  It is uncommon for anthologists to pay as much as the Eliot estate, for example, demands to reprint a poem.  Ironically, the descendants of Communist Party faithful who wrote minor verse in approved styles are most determined that their inherited property be full of value. 

In order to quote, upload, or otherwise “do criticism” or make “derivative works” based on literature published in the 20s and 30s but not in the public domain without having to negotiate what fair use of the materials is, you can generally locate excerpts or individual poems in periodicals and anthologies published before 1923, and use those versions.  This is particularly the case for the female modernist poets of my interest.  They often published one slim volume after a career of periodical publishing.  When you cannot locate the materials you need in public domain editions, you must rely on the vagaries of fair use. 

The two most obvious attempts to use fair use guidelines to make materials under copyright protection available were Napster and, in the poetry world, Red Frog:  Poems from the Planet Earth.  The initial idea in both was that if each person uploaded to server space on the internet what she was allowed to upload under fair use, and the results were pooled, entire works would be available free.  In the case of Red Frog:  Poems from the Planet Earth, individuals were encouraged to type 250 word or less short poems which were not in the public domain into a submission form, no more than one poem a day.  These were then indexed by author.  The server itself was located in Poland, adding an extra level of protection to the copyright violators, the owners of the servers.  While it was a commonplace for the more determined estates, such as those of E. E. Cummings, to police personal web pages and force the removal of poems, as of this writing, I was able to locate about 70 of Cummings’ poems online at the time of this writing by using a cursory web search.

There are some problems with fair use.  It is vague.  While any work of criticism discussing the materials or any reuse in an artwork is fair use, it is generally not considered to be fair use by uninformed literary executors, who would like to consider criticism or “sourced” artworks to be “derivative works” not allowed under fair use or “libelous”.  Fair use is nearly impossible to protect or enforce.  In general, most large research institutions prohibit exercise of fair use for copyrighted materials.  The letter of the law, as at the Cornell Legal Information Institute site, is:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

The problem with fair use is that most every use of copyrighted materials is fair use.  Why on earth would one want to quote or print some or many poems, letters, or even photographs of obscured writers except for purposes of criticism, comment, teaching, scholarship, or research? 

However, many institutions are concerned with other sections of the law, in which, for example, a library, archive, or institution may not allow copies to be made if the person receiving the copies may profit from use of the materials, or if the copyright holder is attempting to profit from the use of the materials.  The consideration of “profit” together with poetry and academic writing has always seemed particularly laughable to me.  It is not always that the literary executor has a fantasy of making a movie a la Reds out of her mother’s old fellow-traveler ballads.  There are ways that a critic profits from writing and publishing a paper on a forgotten poet.  There might be a ridiculously small payment from a literary journal, or at least a free copy or two.  It’s a resume builder: it might help the critic get a job. 

The estate might perceive negative reviews, or any reviews, as defamatory or libelous.  It can be difficult to distinguish between art made from the copyrighted material and “derivative works.”  Libel laws, like the estate, inheritance, and property laws, are not federal laws.  They vary from state to state in the U.S.  They vary according to where the item was published, and if the author was a citizen or not.  The strongest case for libel in this arena is one of financial injury.  A case for financial injury might involve a copyright holder unable to reprint a work because it was reviewed unfavorably, or because the only “interesting” parts of it were printed.  In the case of blacklisted writers, some relatives acting as executors believe that even mentioning political activities which are matters of public record would cast their forebear in an unflattering light. 

Those who would like a better understanding of American poetry in the early twentieth century are quickly amazed at the number of books and poems in periodicals written by women, women whose works are not available to anyone outside a major university or a major metropolitan area, women who have been completely forgotten.  Those who work with print materials in an academic setting are frequently surprised that their use of print matter, which seems so clearly to fall under the guidelines of fair use, becomes embroiled in considerations of copyright.  In the United States, where being “safely dead” does not end copyright, those determined to write with reference to past writing without interference learn about copyright laws. 


Bio: Catherine Daly lives in Los Angeles. Tupelo Press will publish her first book, Locket, in 2003; SALT Publishing will publish her second book, DaDaDa, a trilogy of mss., in 2003.  She is at work on two collections of criticism: of contemporary experimental poetry written by women and of early modernist poetry written by women.

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