Who Stole My Ladder? Who Took The Words?
by Suzanne Poor

A couple of years ago a transient handyman offered to clean the gutters of our Montclair house for a reasonable fee. “OK,” I said. “May I use your big extension ladder?” he asked. “Sure,” I said, granting permission. Gutters clear of leaves, we heard nothing from him until the following fall when he confronted me at our back porch, saying he’d already done the job for that year. And then he asked me if he could borrow the ladder to purge the neighbors’ gutters. Again I granted permission on the condition that he return the ladder when his self-imposed neighborhood tasks were over. Days passed with no ladder. Weeks, and still no ladder. After a few months and vain attempts at reaching him by telephone (both his cell phone and home phones had been either disconnected or were suffering from a full mailbox), we admitted to ourselves that we had lost our ladder. A piece of physical property that we owned was now in the possession of someone else. We had only granted the wayward handyman one-time use, not permanent ownership. Clearly thievery was involved. The first usage was fair, of course; the stealing of the ladder for his own use was not.

Fair Use, a complex issue
Which brings me to the point of all this. Fair use in communication. The incident with the ladder involved physical property. Incidents with copyright involve intellectual property. Everyone knows or should know by now that any creation that can be touched, seen or heard is protected under the current copyright law and act the instant it is created. One may license those works, whether they be song, poetry, photography or prose. But the creator retains the ownership (unless he or she sells it). Plain and simple. So when Garrison Keillor of Prairie Home Companion fame, for example, included a melange of poets by different authors in his new anthology, he not only had to obtain permission from many publishers, but he was obligated to pay a fee.
The same is true of music — whether it’s in the public domain or not, ASCAP requirements mandate that even the musicians who perform are paid a royalty. The same is true of photography. Photographers or their stock agencies receive money when their work is used. Unless, of course, the images are on royalty-free discs. But even then, the photographers sold all rights to the images, relinquishing them to the royalty-free producer, who — guess what? — charges a fee. The same is true of prose — academic, journalistic, fiction or non-fiction. If something is used word for word or even paraphrased, the source must be given and permission from the publisher noted.

Even in what is considered “fair use,” permission should be obtained (particularly if the lines are quoted in toto) or the source at least acknowledged if only a few lines are reprinted. Just what does this term mean, fair use? According to the Stanford University Libraries, “Fair use in its most general sense is any copying of copyrighted material done for a limited and ‘transformative’ purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner.”

Author’s Guild lead attorney
However, in the words of Anita Fore, Director of Legal Services at The Author’s Guild, “The fair use doctrine, or how much one may quote from another copyright protected [work] without permission from the copyright owner, is actually a narrow defense to a copyright infringement lawsuit. And it’s a sticky issue; there’s no way to predict with 100% certainty whether a particular use would be considered ‘fair.’ Contrary to popular lay opinion,” she wrote in a memo to Creative Times, “it’s impossible to state that any use is ‘fair’ by merely counting the words quoted.”

She agrees with the Stanford Library experts that “the Copyright Act defines fair use as copying for purposes such as criticism, comment, news, reporting, teaching, scholarship or research. Copyright law provides a four-factor test (proportion of the new work that is comprised of the prior work; proportion of the prior work that is borrowed; nature of the use being made — academic and review purposes are favored; and whether the commercial market for the original work will be harmed by the amount taken...)”

Most times honesty pays
Based on this definition, Jayson Blair, formerly with The New York Times, obviously committed a lot of literary crimes. Not only did he fail to secure permission when writing his stories, he lifted whole blocks of someone else’s work without acknowledging his sources.

In the strictest sense, Ms. Fore of the Guild suggests that authors always secure prior permission to quote from a copyright protected work “if they are not writing a review of the work itself.” Period. In other words, don’t take chances. Sometimes permission is granted without charge; sometimes there’s a fee. Pay it. Otherwise you’ll be stealing. Most of the time thieves get caught (our ladder pilferer notwithstanding) and the price is far greater than the pittance required to obtain the permission.