Poets have now created a code of best practices in fair use, to help them exercise their fair use rights. They did it with help from CSM, the Poetry Foundation, the Washington College of Law and the University of California, Berkeley School of Law.
Why would poets need fair use? Consider:
Mark Taylor has been asked by a major press to assemble a collection of the essays on poetry he has written over the years and add several more to make a book. He can’t decide what selections he needs to license, and which ones he can use under fair use. If he licensed everything, he would be paying thousands of dollars more than he would ever see in royalties.
Julie Blake decides to do erasures—taking words out of existing poems, and so making new ones--of the poems from her own collection of sonnets. She thinks the new work is both an evolution from and a critique of her earlier work. When she places the collection with a new publisher, the publisher of the sonnets claims copyright infringement. Does she have a fair use claim to do what she did?
Kurt Flanagan is a collage poet, making poems out of bits and pieces of existing work. His new work addresses war in the first decade of the 21st century. His book-length collage poem draws on news sources and also on literary sources, including but not limited to poetry. One of the poets whose work has been used in fragments sues for copyright infringement. Does he have a fair use argument?
Maria Diaz discovers a poem by a poet who is long dead but whose work is still protected under copyright. This poem, which speaks in veiled ways about marginalization, affects her profoundly, in part because its author, too, was Mexican-American and gay. Esperanza makes a video of herself first talking about the poem and then reciting it. When she posts the video on YouTube, a lawyer for the estate of the dead poet insists it be taken down. Does she have a fair use argument?
Now, with the Code of Best Practices in Fair Use for Poetry, each of these poets can make a reasoned decision about their uses. They can explain their reasoning to others who challenge them, and defend their decisions within the practice of their own community.
Poets join members of other creative communities in asserting their fair use rights. Others include documentary filmmakers, media literacy teachers, online video creators, dance archivists, film scholars, communication scholars, creators of OpenCourseWare. Research librarians are currently working on a code of best practices, after completing a study of their problems employing fair use. Other creative communities have discovered that using the codes changes not only their possibilities when dealing with publishers, producers and others who get their work to the public, but also inspires them to make more and better work.
The code was co-facilitated by Patricia Aufderheide, director of the Center for Social Media; Katharine Coles, the director of the Harriet Monroe Poetry Institute at the Poetry Foundation; Peter Jaszi, Professor of Law in the Washington College of Law; and Jennifer Urban, Professor of Law in the University of Berkeley School of Law.