Publishers often fall in a contradictory spot when it comes to copyright law. On one level, a publisher’s job is to help disseminate information—to make widely available and to promote a particular set of texts that it deems of importance or interest to its varying audiences. But on another level, a publisher also aims to ensure that those texts remain uniquely its and the author’s own, that no one else copies the words and images and garners the accompanying financial and reputational rewards.
Copyediting and production come last in the process of making a book. As such, when these contradictory goals with regard to the ownership and sharing of information are still in flux at the time that a book is making its way into final form, serious issues can arise and difficult choices have to be made.
Our preference, always, is that all permissions are cleared by the time that the book enters copyediting—or at the latest, composition. This ensures that the copyeditor is looking at the final text and that we are typesetting a book that won’t have a passage or an image removed late in the process, thus requiring the rewriting of a slew of cross-references and the resetting of a chapter or even an entire book.
But preferences are not always possible to stick by if production schedules are to be met. Information often needs to be made available in a timely manner, say, for an event that a book is tied to. Rightsholders, unfortunately, are often notoriously slow about responding to reprint requests (and sometimes never respond at all or cannot be found). A lack of response leaves the author and the publisher in a situation where they have to make a decision regarding whether to take a calculated risk. Will the rightsholder eventually respond? Will the permission be granted and for a reasonable amount? Will the rightsholder emerge after publication and try to assert various demands then?
Complicating this decision is the law with regard to the doctrine of fair use. The fair use doctrine allows writers to use someone else’s work within his or her own if it meets certain criteria, as denoted here. The criteria take into account such questions as: In what ways might the use compromise the original owner’s ability sell his or her own work? Is the use for profit or nonprofit? Is the use contributing or essential to a scholarly discussion or is it more ornamental? How much of the other person’s work is being used? Does this new use transform the original in such a way that a new, distinctly creative product has resulted that does not simply cannibalize the original?
The law with regard to fair use is, in practice, ambiguous. This means that any publisher who chooses to disseminate even a small portion of someone else’s work as part of yet another work risks a lawsuit from the original owner. In general, most writers feel confident that a lawsuit will not result (or that they’d easily win if one did result) when they quote a short passage from someone else’s longer work. Here, the doctrine of fair use is well established.
Confidence fades, however, when the answers to those questions are borderline. Does the full quotation of a four-line poem constitute fair use, for example, if that quote is appearing in a book of criticism about that poet or poem, or is the author essentially robbing the poet of remuneration owed for the reprinting of the poem?
And so we’ve ended up with situations at UGA Press such as one in which an author had to pull a quote from his book because a lyricist told him he was not free to quote from her song, even though, had the risk-averse author simply quoted the lyric and claimed fair use, he probably would have seen no repercussions. Or another situation in which an author wrote an essay about music from the Vietnam War without using any quotes from the songs whatsoever, because, of course, lyrics are essentially very short poems and why bother risking having the RIAA after you? As the publisher in these situations, it’s easy to take a stand with the authors of the critical works; however, as the publisher also of various creative works, it’s easy to see how we might not take kindly to another publisher reprinting in complete or almost complete form one of our own works, even though it might be for critical or scholarly ends. After all, one might argue, we took the financial risk to bring that work to the public’s attention, and now this other publisher is cannibalizing on the author’s success.
Where such issues become difficult for production is when items that would appear to be available for use become unavailable—or become the subject of scrutiny. That photo on page 24, for example, which is a publicity still from a motion picture, suddenly has a two-thousand-dollar price tag on it from a movie studio that was formerly unresponsive to efforts to request permission. But does the author even need permission (the author analyzes the shot as part of the scholarly discussion)? If we remove the photo, what goes in its place? Or do we reset the entire book? Is the author willing to risk a lawsuit?
Such questions bring us back to the contradictions within the concept of copyright itself and the way that publishers walk that line between as purveyors of knowledge who want strong copyright protection to ensure the continuing uniqueness of their own work but also the ability to use others’ works to further the scholarly end of spreading yet more knowledge.
Jon Davies is assistant director for editorial, design, and production at UGA Press.