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, Marxists.org, 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:
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.