"Where Credit is Due": a follow-up
on ©opyright and Fair Use

In the Autumn 2013 issue, Haiga Workshop was devoted to a brief survey of copyright. Not that we've never had to remove material from an issue already released—which shows how fortunate we are in our community of contributors and readers. However, there have been near misses and some of our regular contributors have been touched. It has around my interest in Copyright, Public Domain and Fair Use. In addition to the Workshop article, I've been developing a curriculum unit on copying images for my classes at school and have realized just how poorly understood he issue is for many people. It is a fascinating study that broaches on literature, history, law, psychology, and the expectations that different cultures have of artistic originality.

This issue's follow-up article is to share some of what I've learned since the Autumn 2013 issue was released. I received an email from Dr. Ira Lightman of the University of Northumbria, a writing instructor and conceptual poet who has been documenting plagiarism in poetry. Lightman wrote me about two Haigaonline contributors whose haiku published elsewhere had been slightly changed and republished by someone else. Cornered with evidence, the author had made vague apologies, then became defensive and the offending poems had not been taken down, Since then, his Google blog with the mea culpa has been made private and Lightman's own website is gone. Readers now can only reconstruct what happened through third-party reports that are still online (some are listed in the resources below), and Lightman's Twitter feed.

Plagiarism, "deja-ku"(cf. Welch) or something else? In this case, Lightman had so many examples that the behavior had to be intentional. Why would someone do such a thing? One benign explanation might be that the author intended "honkadori", a Japanese device of literary quotation that is a linking technique in renku (cf. Tsukamoto); another might be that the haiku were written as "modeling", an exercise in which you study another author's poem by building your own poem on the original (cf. Rasmussen, Root-Bernstein). However, advocates are clear on one point: if you do manage to transform the original enough to warrant submitting it for publication, you should credit the original.

When called out, offending authors may claim they were writing a cento, or they didn't know it was wrong, or that they didn't know it was wrong. Considering how hard our high school and college teachers worked to instill the understanding of footnotes, it's a weak defense, but the Internet is full of people who believe that everything is free for the taking. And in fact, the wider Art culture encourages this impression. In the years since Marcel Duchamp drew a moustache on Mona Lisa, "appropriation", "repurposing" and "upcycling" have become standard artistic practices.

At what point, though, is quotation mere plagiarism, or does image appropriation fail to rise above predatory expropriation? To understand the issues, you have to know something about Fair Use and an elusive exception to copyright called "transformation".

Shortly after my exchange with Lightman, I learned of Cariou v. Prince, a landmark court case in New York that turned on a celebrity artist's having pillaged a lesser-known artist's work with neither permission nor royalties. In 2000 French photojournalist Patrick Cariou had published a book of photographs he had taken over a six-year period in Jamaica. Richard Prince, a New York artist who has been using news photographs and ads (notably the Marlboro Man) in his work since the 1970s. In 2008 he opened an exhibition at the prestigious Gagosian Gallery that included thirty works in which he'd reused Cariou's images, some barely altered. At the opening gala, sales were over $10 million, as against the $8000 Cariou had earned from his book. Cariou sued for infringement of copyright. As the case wound its way through appeal, the Warhol and Rauschenberg Foundations filed amicus briefs on behalf of Prince, while associations representing working artists who depend on royalties weighed in for Cariou. It just ended this March with out-of-court settlement that apparently has left the Appeals Court's interpretation Fair Use stand. For those of us who have never quite understood what Fair Use is, the court document is useful reading (see resources below).

What do these two cases have in common? Both center on appropriation—or rather expropriation—of other people's intellectual property, and in both cases it was done with little regard for the original author/artist's intellectual property. As victims quickly learn, pursuing plagiarism is a lonely endeavor because the larger community doesn't want to know, makes excuses for the perpetrator, or even even shuns the victim for bringing it up. The imbalance of money, power and influence in Cariou v. Prince concerns me, because trust is as necessary as freedom for creativity to thrive. Everyone who employs appropriation as a creative technique, whether in text or in image, should have a decent layman's understanding of copyright. Moreover, whatever the letter of the law, there's a Golden Rule about how we should treat our fellow writers and artists: When in doubt, ask permission, and credit your sources.

I'm still thinking about how best to explain "transformation" to my students, so look for another installment in this Workshop series. Meanwhile, I'll just note that in this issue we have an author who couldn't get a response from the photographer of the first version of her haiga so she proactively swapped it. I'm so glad we gave people like her in our Haigaonline community. It's a big part of the pleasure of producing this journal.

Some Further Reading

This long list may be more than you want to know about these cases; even so, it's a fraction of the substantive resources you'd find in a browser search. If you use found texts, modeling or appropriation in your own practice, it's important tht you educate yourself on copyright, fair use and transformation.

"Interview: Ira Lightman," Write Out Loud, 9 June 2013

Justin Clemens, ‘“Of borrow’d plumes I take the sin’: plagiarism and poetry," Overland Literary Journal, 16 September 2013

Ruth Graham, "Word Theft: Why did 2013 become the year of the plagiarists?" Poetry Foundation, 7 January 2014

Greg Allen, "Toward A Less Reflexively Damning View Of Plagiarism," Greg.org: the making of, 14 March 2014

Akiko Tsukamoto, "Modes of Quoting: Parody and Honkadori," 2000, rpt. Simply Haiku, July-August 2004

Michael Dylan Welch, "An Introduction to Déjà-ku", Simply Haiku 2004 rpt. Graceguts

Ray Rasmussen, "The Role of Modeling in Haibun Composition," Haibun Today, June 2013

Michele Root-Bernstein, "Copy-Ku: The Role of Imitation and Emulation in Developing Haiku Craft," abstract in the archives Haiku North America 2013,13 July 2013

Charles Thomson, "The Art Damien Hirst Stole," 2010, online at Stuckism

Donn Zaretsky, "Big Fair Use News: Patrick Cariou Prevails in his Copyright Lawsuit Against Richard Prince," The Art Law Blog, 20 March 2011

Joel Rose, "'Canal Zone' Collages Test The Meaning Of 'Fair Use'," NPR, 16 May 2012

Rachel Corbett, "Cariou v. Prince: Cariou Fights Copyright Appeal," Artnet Magazine 25 January 2012

Larry Neumeister, "NY Court: Artist Richard Prince Fairly Used Photos," Associated Press: The Big Story, 25 April 2013

"Patrick Cariou v. Richard Prince, et al., United States Court of Appeals for the Second Circuit, August Term 2011, . . . Decided April 25, 2013," online at Berkeley Law, University of California

Julie Ahrens, "Second Circuit Victory for Richard Prince and Appropriation Art," The Center for Internet and Society, Stanford University Law School, 26 April 2013

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