I'm happy to be corrected on the legal nuances of asking first. Doubly so, since I already knew the rough details of the case Dan mentioned, but had never thought of it in terms of the "asking first" aspect of things. So thanks to Dan for that. :) That said, I'm going to quibble a bit -- in a friendly fashion, I hope -- with the notion that asking is "polite" and "less complicated." To be sure, asking may be polite ... but it's not clear to me that not asking is necessarily impolite. Especially if one is asking a corporation, rather than an individual. I can certainly imagine it being polite to ask someone if I could use, say, a family photo of theirs that they'd posted to Flickr or Facebook. Not so much if I'm asking CNN for permission to republish a screengrab of the front page of their website. I’m not sure it’s even possible to be impolite to a corporation ... but that’s a philosophical question for another moment. More to the point, the norm (scholarly and otherwise) when it comes to using other people's printed words is NOT to ask except in cases where the quote in question is exceptionally long. And we generally don't claim that it's impolite to quote other people's words without permission (or that etiquette demands we ask permission anyway). Quite the opposite, actually. We assume that as long as we follow scholarly norms of attribution and citation, that we can -- and must be allowed to -- quote other people’s words freely, and that they do NOT have the right to grant or withhold permission when we do so. Mind you, I'm happy to accept that there are real differences between words (on the one hand) and images, songs, websites, etc (on the other) that matter with respect to both copyright and fair use. But I'm not sure those differences typically register at the level of social courtesy. And asking can actually be *very* complicated -- if only because the questions of *who* actually needs to be asked and *where* they can be reached is not always simple. I'll give one personal example to illustrate this, but I'm sure it's not unique. A few years ago, I wrote an essay on Eminem that was accepted for publication by the journal Popular Communication. I'd completed the revisions the editors had asked for, and everything was set ... until the legal team at Lawrence Erlbaum (who publish the journal) said I needed to secure permission for any lyrics I quoted that were longer than a sentence fragment. I had to write the letters, pay the fees (if any), and produce documentation of all of this ... or drop all un-cleared lyric quotes from the essay. I pushed back -- arguing the quotes were all textbook examples of "fair use" (e.g., brief quotations for the purposes of scholarship and cultural criticism) -- but they didn't budge. (Not right away, anyway. Eventually, they relented. But I'm trying to keep this brief.) So I tried to contact "Eight Mile Publishing" (Eminem's music publishing company) to request the permission LEA insisted that I had to have. But, of course, like most music publishing companies, Eight Mile is a paper corporation. It has no staff. It has no offices. It has no street address. It doesn't even have a post office box. Or, more crucially, if it has any of those things, that information isn't publicly accessible in any easy-to-find fashion. I went through every sideways and back channel I could imagine simply to figure out where to send a letter to someone who *might* be in a position to make sure that my query landed in the hands of the right people. None of the letters I eventually sent off ever resulted in so much as an acknowledgment, much less an actual response to my request for permission. This whole process took several months. And it was far more complicated than it would have been simply to treat the quotations in question as “fair use” from the start. To be sure -- and this may be what Dan is getting at -- those several months of frustration were undoubtedly easier than being in the receiving end of a copyright infringement lawsuit. Even if “fair use” would have won out in such a case. I get that. But let’s also not pretend that "asking first” is necessarily an easy thing to do. cheers gil On 09/03/2010 12:23 PM, Dan L. Burk wrote:
No. In fact, the leading USSC case on fair use, Campbell v. Acuff-Rose, involved a successful assertion of fair use after a request for permission to use the copyrighted work (Roy Orbison's song "Oh Pretty Woman") was denied.
Asking is polite. Asking is less complicated. Asking is (usually) less expensive. And if you don't get permission, you can claim your statutory exemption later.
The rest of Gil's comment is spot on, however.
DLB
I'm not familiar with the notion that asking for permission might eliminate/jeopardize a future fair use claim. Is there legal precedent establishing this?
-mz
-- Michael Zimmer, PhD Assistant Professor, School of Information Studies Director, BS in Information Science& Technology Program Associate, Center for Information Policy Research University of Wisconsin-Milwaukee e:zimmerm@uwm.edu w:www.michaelzimmer.org Dan L. Burk Chancellor's Professor of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits:dburk@uci.edu
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