Risk aversion in academic publishing
One of my favorite images in the draft of Copy This Book! » that I successfully submitted to Stanford University Press illustrated the joke told by the best-selling postcard of all time:
Unfortunately, you’ll not find this racy dialogue in the final version of the book. I was unable to get permission to use the image and deleted it from the manuscript. Like virtually all other academic publishers Stanford requires its authors to get a license to use copyrighted images (more in a minute on whether the image is, in fact, protected).
But does the law actually require me (and other authors at numerous other presses) to get permission from copyright owners to use an image like this?
The best case on point is Bill Graham Archive v. Dorling Kindersley, Ltd. which involves litigation over images reproduced in a commercial book entitled, Grateful Dead: The Illustrated Trip. The authors of the book found it impossible to tell the story of the iconic rock band without including copies of colorful, psychedelic pictures used on posters and tickets to promote its concerts. Seven groovy images were included without the permission of their copyright owner, the Bill Graham Archive (BGA).
Bill Graham was a legendary promoter of famous bands in the San Francisco Bay area in the 1960’s, and BGA actively licenses much of the artwork he commissioned for concerts held there. The authors tried to negotiate with BGA for a license but balked at the offered terms. They then proceeded to reproduce the images (albeit in a smaller size than a full-size poser) in their book.
The Court of Appeals for the Second Circuit held that the use of the images was permissible under the 4-part test of the “fair use” doctrine. Most importantly for academic presses, the court found that the “nature and character” of the use of the images was “transformative.” The original use was to promote rock concerts, while the book’s authors used the works instead to illustrate the history of the Grateful Dead. The book only transformed the physical pictures slightly, but the purpose served by the reproduced images was different
The second and third factors, the nature of the copied work and the amount taken, might have tilted in favor of BGA, but the court held that a truly transformative use diminished the importance of those considerations.
The fourth and final factor, the effect of the use on the market for the pictures, seemed to clearly favor BGA. After all, it had established an active licensing market for the images, and the authors did not pay the customary fee. Nonetheless, the court, emphasizing the transformative purpose of the use, found for the authors.
Now, consider the Kipling joke post card and my book. The original purpose of the postcard was vastly different than my academic purpose, and work is an orphan, with no identifiable copyright owner to contact for permission. I have a better argument than Dorling Kindersley in the Bill Graham case, yet most academic publishers will still err on the side of not allowing such an image to appear in one of their books.
So, why do academic publishers behave as if the Bill Graham case doesn’t exist? First, publishers don’t want to get into the business of evaluating the fair use prospects of every image an author wants to publish. The four-part test is pretty touchy-feelie and often does not provide a crystal-clear answer.
Second, publishers are notoriously risk averse. Why even take a chance on being sued? Statutory damages for a single act of willful infringement can be assessed as high as $150,000. Isn’t it easier to just require written permission?
Finally, publishers have too great a respect for copyrights. Their business model depends on the effective enforcement of copyright law, and that has generated professional norms that have enlarged the scope of protection intended by Congress. Unfortunately, the uber-respect of publishers ends up subverting a main goal of copyright: making works available to the public.
Finally, finally, the image produced above is almost certainly not protected by copyright at all. Unfortunately, the Copyright Office is not organized in such a way that allows a researcher to determine whether the work was properly registered and renewed. Chapter One of COPY THIS BOOK provides this full tale of woe, illustrated by the famous image of steel workers lunching on a suspended beam, high above the Manhattan skyline.
Post-script: If you’re wondering why SUP is willing to publish the Kipling joke image in this blog post, my guess is that it recognizes (properly!) that this is clearly a work of non-commercial, editorial criticism, which is even more clearly a fair use than the profit-producing sale of COPY THIS BOOK (assuming readers don’t take the title too literally).
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