« Ambrosia / hides murder in its chest | Main | Unlicensed »

License
May 11, 2007    File under: Information Technology

A few posts back, I mentioned that the new book might even be out in January, but I may have written too soon, because one of the things that has to happen before the book can go into design and production is the clearance of lyrics quoted in one of the book's sequences, and that is more complicated and time-consuming than I imagined possible.

Maybe I began the wrong way, going to the United States Copyright Registry, thinking a public, government, and supposedly legal document would be the first place. I should have begun at ASCAP's ACE Title Database, but I didn't know about that. As ASCAP's website notes, "ASCAP created the dial-up ACE System in 1993 as a useful tool for music professionals." Not being a music professional, I didn't know about this. Thank goodness ASCAP decided to "make an enhanced World Wide Web version of this Database available." I only wish I'd known sooner.

What makes the ASCAP/ACE system more useful than the Copyright registry is that ASCAP/ACE will separate records for composer and writers from records for performers and performances. The Copyright registry may contain more than 100 records for a single song, maybe three records for writers and composers and another 90+ for each recorded performance of the song. In my case, I only want to quote the lyrics, and I want to do it properly, so I need to find not only who the writers are but who administers the licenses, but, again, it gets even more complicated after the ASCAP/ACE search.

Let's take, for example, "Blueberry Hill." ASCAP's database lists three writers: Al Lewis, Vincent Rose, and Larry Stock. ASCAP also lists three publishers for the song: Warner Chappell, Larry Stock Music Company, and Sovereign Music. Larry Stock Music Company is handled by another company, the Larry Spier Agency, which does business or routes licensing through a company called Memory Lane Music, and Sovereign licenses all its titles through another company called LCL, Licensing Concepts Ltd. Even had I begun at ASCAP, I would still have two other calls to make before I could find the person I needed to contact, and even then things get tangled, as one call netted me a fax number in the wrong division of the licensing company, so, after waiting the obligatory 15 business days for any reply, I had to call only to discover that my fax had disappeared into limbo. As with Stock and Sovereign, Warner Chappell does not handle lyric reprint requests, so you have to go to another company, Alfred Publishing, which handles Warner's print licensing.

Once I got to the right people, things moved pretty quickly, relatively speaking, but it didn't stop there. In trying to clear one line (that's right folks, one line) from the 1926 song "Bye Bye Blackbird," I bounced around from one publisher to another to yet another then to discover the following: the United States rights are held jointly by two publishers, while world rights are administered by a third agency. In contacting the third agency about "Bye Bye Blackbird," I had to reveal the list of songs quoted in my entire manuscript only to be told that this new company also administers two-thirds of the world rights to "Blueberry Hill," something none of the three other publishers had ever mentioned. I guess that's why they ask...

But I'm left to wonder — especially after one phone call ended with the publisher suggesting I hire an industry insider, a specialist, to clear the licenses — how an author, or even a common citizen, could ever be expected to get this right.

Some might think, as I thought a few years back, that presses would have such specialists and that an author wouldn't have to know not only the fine points of the law but as well the labyrinthine course to compliance. But the fact is that many presses don't have such specialists and, even if they did, it's probably not economical to devote any such labor to doing this work: I've already spent nearly 40 hours, about half on the phone, doing this detective work, an expenditure of time that would cost a press probably around $1000, thus increasing the cost of production of my slim volume of poems by maybe 25-35%, a volume that may never make any money, may never turn a profit.

If you are an author, odds are you're going to have to do this yourself. And, I think, odds are you're going to get it wrong somewhere, so you have to become a devotional person and pray that you're not going to get sued. I imagine that somewhere there's a "due dilligence" provision or a "best effort" — has anyone else (?) noticed with intrigue the disclaimer in the colophon of a University of Iowa Press title: "All reasonable steps have been taken to contact copyright holders of materials used in this book" — but I don't know.

***

Several confidantes have said to me, Well, I guess you won't be using any songs in your next book. They're probably right, but it makes me sad, to think that something so fundamental to my approach to writing poems and suites and sequences and collections of poems, something so fundamental to my Civil Rights project, might be abandoned, that there might be incentives to abandonment.

Let me say some things I don't always say clearly or all together....

First, the more specific representation: the Civil Rights project — the work to write elegies for each of the 41 people whose murders, according to the Southern Poverty Law Center, mark important moments in the fight for Civil Rights in America — is a documentary project. I am executing the project in poems, but the core impulse is documentary. In some cases I am building poems around documents or elements of documents. In some cases I am creating documents, recording what is otherwise only verbal. In some cases I am writing poems that set documents in dialogue. And in some cases, in most cases, I am searching for the intersections that form accidental, perhaps unwitting, but significant documents of the times.

Many of the songs I'm trying to clear for A Murmuration of Starlings are in a single sequence, in which song titles and song lyrics help tell the stories of two of Birmingham's citizens: one is Sun Ra, who left Birmingham for outerspace and a life as a jazz musician and futurist; the other is Robert Chambliss, who was convicted of bombing the 16th Street Baptist Church. In the case of Sun Ra, it's his titles, his composition, his language that tell the story. With Chambliss, because he never wrote (to my knowledge) anything, it's what he hears that tells his story and that tells Birmingham's story. In one segment, when Chambliss is supposedly waiting to bomb the home of Fred Shuttlesworth, the poem has him listening to "Some Enchanted Evening," which was #1 on the Bilboard charts that week: my hope is to use those lyrics both to suggest Chambliss's own romanticization of his work as a white-supremecist bomber and to challenge readers to hear the disconnect between the visible or audible culture and the undercurrent that would come to overwhelm Birmingham in the early 1960s. "Some Enchanted Evening" becomes a document, in the right place at the right time, something that helps us measure the world.

I believe the most powerful documentary films work by finding these accidental documents, and I want to achieve some of that in these poems. As a poetic strategy, this is not unique to me: I admire the way David Wojahn has developed a documentary aesthetic over the years and the way he's used songs to create those documents. (I wonder if he's ever had to deal with this business? Time to write a letter.)

And since I'm undertaking this work in order to draw attentions to the (still unfinished, still unfolding) history of Civil Rights in America, since I mean to locate that struggle in our world so it will be more widely indicated, I don't think I can easily say I'll avoid lyrics in the next segment of this series. This work is a responsive work — these poems respond to facts, to texts — and sometimes the song is the text, sometimes it tells the story.

And I don't mind paying at all. I just wish there was an easier way to find out who and how to pay for this.

Second, a larger point: I think there's an important place for responsive work, for work that is by nature intertextual (as much as it is intratextual or "original" or originary), work whose intertextuality is an ethical (as much as an aesthetic) choice. And yet, the difficulty and expense of licensing even extremely short passages of lyrics (I'm using maybe a total of 50 words and it's going to cost me in the neighborhood of $600) makes the publication of certain kinds of work impractical, especially if those works are works of poetry or literary fiction.

I was talking to an editor about my situation and he mentioned to me that he had recently read a manuscript in which the author quotes lyrics in every poem, something that would effectively make the book too expensive to produce. But, of course, it's quite possible the book could be excellent perhaps even important.

(I know people are probably tired of poets talking about the potential importance of poetry books, given the supposition that they're increasingly irrelevant. But even poorly circulated works (Moby-Dick only sold 3,000 copies in Melville's lifetime) can have serious effects (it has been argued that Moby-Dick laid the foundation for post-modern fiction).)

And it's sad to think that a work that might make a serious ethical or artistic contribution might language in manuscript because it could never generate the fiscal resources to establish itself. Though I guess that's true probably of more books than any of us can imagine.

Third, another larger point: there's an important, perhaps invaluable, place for work that hybridizes genres and my current Thesean wandering through the copyright maze makes me wonder if I've entered a zone in which the legal structures in some ways militate against hybridity.

If my book were a work of journalism, not poetry, if it were a work of journalism, not fiction, I wouldn't have to clear license on these quotations. Presuming, however, that fiction is originary work, that poetry is originary work, using another originary work — a song rather than a newspaper report — requires payment, not just acknowledgment.

I had at one time presumed that this payment was to compensate for potential loss of revenue, that such use was assumed to fail the fourth point of a fair-use test, though such a determination was always confusing to me. If I quote the lyrics to "Blueberry Hill," a sound recording, in a poem, I don't duplicate "Blueberry Hill." I translate it. And I would think that my inclusion of the work is, if it does anything, more likely to send someone for that recording, rather than dissuading them from it, rather than replacing it (see the substitution test). But now it seems that such payment is not required against harm to or diminishment of the original recording to make money but against the lyrics themselves, which, because they are already licensed for fee, make money on their own and are therefore legally a separate, licensable entity. I have to pay the money because if I didn't they would have at least lost the money I could have paid them and would therefore fail the fourth point of the fair-use test, regardless, apparently of whether or not I would pass or fail the substitution test. And that, I believe, may enforce a certain conception of poetry on my present work.

Obviously, that is on the edges of things, something far away and almost slippery-slope-ish, but it's something I think about. I wonder what you think about it.

***

All of this has got me thinking again about the Bob Dylan-Henry Timrod blowup from last year (refreshers: #1, #2, #3, #4).

At the time, a local reporter asked me what I thought about it and (echoing #4 above) I said I wished Bob Dylan would rip off one of my lines: it might help me get around.

But since then I had the pleasure of hearing Katrina Vandenberg read (if you haven't heard her, go find her, and do buy her book) the poem "Record," in which eight words from Dylan's "Tangled Up In Blue" appear, words that cost her $100. The intersection is perfect. Vandenberg's is, too, a responsive poetry, one whose quotations are apt, whose quotations connect the work of the poet to the world beyond her own skin, important work. Amazing.

The reading was stunning, even if too brief, but I left thinking, if she has to pay Dylan for those lines, he ought to have to give something back for the Timrod thing.

The Timrod's all public domain, and I thought at first Dylan was doing his blues thing — there are dozens of blues lines scattered across the Dylan catalogue, most of them "traditional" (i.e., with no fixed author) — but I say if we're going to do the blues thing, and observe communal property, let's do it all the way. Poets sometimes are blues people who sing out of the chorus of forever, and occasionally they let you hear that chorus, they need you to hear that chorus. And I think there should be fewer barriers to that sort of thing. Or at least fair play (if not fair use).

***

And I'd go further to say that at some point there ought to be a test to see if the ethical impulse to brief quotation might be allowed to offset or override some of the other considerations. (In any case, I hope these folks get the proper remedies.) Until then, I've got to get back on the phone and keep my check-book open.

Posted by Jake Adam York at May 11, 2007 8:22 AM



COMMENTS

Horrifying. This kind of foolishness is the best argument against our broken copyright law. Someone should send this post to Boing Boing.

Posted by: Ross at May 11, 2007 3:02 PM




It's much easier when you can quote singers/bands you know, eh?

Posted by: Montgomery Maxton at May 13, 2007 2:27 AM




Hear, hear. I think that this is a terrific, elucidatory post.

Posted by: Dr. S at May 13, 2007 7:24 AM




Post a comment




Remember Me?

(you may use HTML tags for style)