Is it ever O.K. to use a copyrighted text in a video without the copyright holder’s permission?
Annie Ferguson, curator of The Fluid Raven, sent along an interesting question:
Could you help me out with an appropriation dilemma? How are artists using recordings of poets like Plath and Oliver in their videos without being illegitimate? Is there a place where these poems are free to grab and use?
I’m a filmmaker/poet and wanted to create cinepoems with the words of famous poets, but I ran into copyright infringement. Yikes. I’d love to know more about it though, because I think it’s important for filmmakers to share poets’ work in a new way.
I asked Annie’s permission to share her question here. My off-the-cuff response was that if we’re not getting permission from the copyright holders, we are leaving themselves open to being sued for copyright infringement. (Or at least getting a take-down notice under the DMCA). That said, a liberal interpretation of the Fair Use provision in U.S. copyright law might find that envideoing a poem is sufficiently transformative to pass muster. The Center for Social Media’s Code of Best Practices in Fair Use for Online Video suggests, for example:
Unlike many traditional creator groups, nonprofessional and personal video makers often create and circulate their videos outside the marketplace. Such works, especially if they are circulated within a delimited network, do enjoy certain copyright advantages. Not only are they less likely to attract the attention of rights holders, but if noticed they are more likely to receive special consideration under the fair use doctrine. That said, our goal here is to define the widely accepted contours of fair use that apply with equal force across a range of commercial and noncommercial activities, without regard to how video maker communities’ markets may evolve. Thus, the principles articulated below are rooted squarely in the concept of “transformativeness.”
In fact, a transformative purpose often underlies an individual creator’s investment of substantial time and creative energy in producing a mashup, a personal video, or other new work. Images and sounds can be building blocks for new meaning, just as quotations of written texts can be. Emerging cultural expression deserves recognition for transformative value as much as more established expression.
More professional filmmakers will of course make an effort to contact rights holders. In some cases, they may be asked to pay quite a lot of money. But an even more insurmountable difficulty may be finding out who holds the rights in the case of poets who are long dead and out-of-print. If you’re using a translation, you need permission from both the translator and (I think) the original author. I’ve gotten around that on a couple of occasions by doing my own translations and hoping the poets’ heirs weren’t litigious. (Needless to say, the Fair Use provision only applies to poets who were U.S. citizens.)
Another way out of this dilemma might be to forget about the big names and look for poets who apply Creative Commons licenses to their work (the kind that don’t include the phrase “no derivative works,” abbreviated “ND” in the short form of the license), or simply work with living, web-active poets who are quick to respond and unlikely to ask for money. And of course an ever-growing number of classic poems enter the public domain every year. But fortunately (from my perspective as a reader and viewer) there are good filmmakers with a bit of an outlaw mentality who shoot first and ask questions later. Without them, we might not have any good videopoems for poets like Plath and Oliver.
Have you ever broken copyright to make a filmpoem, cinepoem or videopoem? Are there any circumstances under which you think it might be permissible?
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Dave Bonta is a poet, editor, and web publisher from the Appalachian mountains of central Pennsylvania.
Certainly supporting poets who apply Creative Commons licenses to their work is a good idea, just on principle. (And using those poets’ works in videopoems might help to spread those works around / boost their popularity / garner more readers, which seems to me a fine reward for being generous with the work in the first place.)
That said, I’m not a lawyer, but I suspect that a videopoem could be a sufficiently transformative work that it would qualify as fair use. I would always attribute the work to its original author, so it was clear that I wasn’t claiming that the words of the poem were mine; but the video/audio editing and mash-up work involved in the process could certainly transform the poem such that the whole multimedia work is now saying something expanded or new.
I don’t think there’d be any problem unless the entire poem was quoted. But excerpting a bit should be okay, yes? Am I correct that any poem written prior to 1927 (or is it 1923) is in the public domain and does not require permission?
Excerpting should be O.K., at least for work protected under US copyrights. As for when things enter public domain, see http://en.wikipedia.org/wiki/Copyright#Duration
On that copyright question, as someone who publishes both Mary Oliver (who now has a top New York agent) and Frieda Hughes (Sylvia Plath’s daughter, who controls her mother’s copyright) – and knows how they would feel about this question – I would say unhesitatingly that no film maker should risk using the work of poets like Oliver or Plath, or any other copyright poet, without seeking permission. There’s no way in which any filmmaker can use more than a few lines of work of living poets without breaching their copyright, but all the filmmaker needs to do – or at least in Britain where I work – is to contact the poet’s publisher (the publisher controls these rights in most cases, except for a small number of poets who have agents) with an outline of what they want to do, and in most cases the publisher, after consulting the poet, will give permission. It’s all good publicity for the poet after all, and poets are always interested in seeing what artists from other fields will make of their work. We’ve made a number of agreements with filmmakers and use a straightforward agreement which grants free permission with the necessary acknowledgement in the first instance, but with a rider stating that in the event of the film turning a profit, the filmmaker has to come back to negotiate an amendment to the agreement which would provide for some income to the poet. In most cases the filmmaker is no more making money from their work than the poet is; it’s creative and a labour of love. But in those cases where something does make money, we provide for that.
Neil Astley, editor of Bloodaxe Books
(we do our own poet filmmaking too which simplifies the copyright process when the work used is that of our own authors!)
Thanks for weighing in, Neil. I think this is good advice for more professional filmmakers on both sides of the Atlantic, even if it’s true that the fair use provision of US copyright law would protect certain types of videopoetry as Rachel is suggesting.
Of course, for every professionally made poetry film there are at least 100 amateur efforts of varying quality on YouTube and Vimeo, and I don’t think too many poetry publishers or agents are actively trying to shut those down in the way that the big music companies issue DMCA take-down requests even for home videos in which a copyrighted song may be heard playing on the stereo in the background. I’m not saying it’s right, but realistically and pragmatically, some blogger making a quick-and-dirty video using found footage to illustrate or accompany a classic poem would never make the effort if they had to go through official channels in the way you suggest. And to me as a fan of poetry, it would be a real shame to lose that often inchoate but creative ferment of amateur poetry videos on the web.
Needless to say, it would be awesome if more poetry publishers followed your example in having in-house filmmakers. I only know of a couple of others at this point, neither of them anywhere near as large as Bloodaxe. Keep up the great work.