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Mike, you are in luck; tomorrow at 10AM EST, poets are releasing their Code
of Best Practices in Fair Use for Poetry, which will be available at our
site at centerforsocialmedia.org/fair-use and at the Poetry Foundation's
website. You are also helped by the SCMS scholarly research code of best
practices in fair use, and the International Communication Association code
of best practices in fair use. All these codes are also available at the
same site. You can make your decision confidently. These codes and lawyers
universally are extremely clear that percentage guidelines are a myth; the
question you'll ask is two-fold--whether your use is transformative, and
whether you have used the appropriate amount *for the transformative
purpose.* You are in a very good position to make those decisions yourself;
you know the uses you are putting this material to, and why you need what
you need. There is only the scantiest of litigation trails in this area, and
what there is supports fair users within the "safe harbors" that the codes
articulate. Were there to be a lawsuit or injunction or even a cease and
desist letter as a result of a decision made within those parameters, you
would then have a small army of pro bono lawyers clamoring to help you. The
Fair Use Project at Stanford, the IP clinic at UC Berkeley School of Law and
Electronic Frontier Foundation are only three of them. At the Center for
Social Media we would love to know what you decide.

On Thu, Jan 20, 2011 at 7:03 AM, Jason Mittell <[log in to unmask]>wrote:

> Mike,
>
> I'd say in this case, it would be better to not include these excerpts (and
> I write this as an advocate for fair use who almost always advocates for
> pushing the boundaries of permissions). Poetry & song lyrics are tricky
> because they are so short - typically fair use applies to a minimal portion
> of a work (10% is often referenced but is by no means the accepted
> guideline). So even a small excerpt from a poem can be a significant
> portion
> of the whole, which typically requires permissions.
>
> Given that fair use is only a defense in court, not an absolute right you
> can claim to avoid litigation, if you fear she will be litigious, then
> don't
> include the excerpt. Even if you believe that it is a minimal amount & that
> your publisher is behind it, there's nothing to stop her from suing. There
> are few legal precedents to fall back on, and if you don't want to risk
> going to court, it's probably not worth including the excerpts. Of course,
> there's nothing to stop you from including the link to the forum where the
> poetry appears.
>
> (And it goes without saying, I am not an attorney & this is not legitimate
> legal advice - just an opinion!)
>
> Good luck,
> -Jason
>
>
> ---
> Jason Mittell, Associate Professor of American Studies and Film & Media
> Culture
> Chair of Film & Media Culture Department
> Middlebury College
> 208 Axinn Center at Starr Library
> Middlebury, Vermont 05753
> (802) 443-3435 / fax: (802) 443-2805
> Blog: http://go.middlebury.edu/justtv
>
>
>
>
> On Thu, Jan 20, 2011 at 1:01 AM, SCREEN-L automatic digest system <
> [log in to unmask]> wrote:
>
> > Date:    Tue, 18 Jan 2011 17:13:07 +0000
> > From:    Mike Chopra-Gant <[log in to unmask]>
> > Subject: Copyright clearance refusal and fair use
> >
> > A quick question, especially for those in the USA. I'm in the closing
> > stages of writing a book on The Waltons and am writing about fans, and
> > specifically fan literature. I was hoping to quote some poetry posted on
> a
> > forum by a fan. She has claimed copyright on the works and my request for
> > her permission to quote short passages in my book has been declined.
> Where
> > do I stand insofar as fair use is concerned now that permission has been
> > refused: does fair use override such a refusal so far as very short
> passages
> > are concerned or does the refusal establish an absolute prohibition on
> > quoting?
> >
> > I'd really like to put some of this material in the book but I suspect
> the
> > author of these poems is precisely the kind of person to get litigious,
> and
> > getting sued in the States is not a risk I can afford to take.
> >
> > Regards,
> >
> > Mike Chopra-Gant
> >
>
> ----
> Screen-L is sponsored by the Telecommunication & Film Dept., the
> University of Alabama: http://www.tcf.ua.edu
>



-- 
Pat Aufderheide, University Professor and Director
Center for Social Media, School of Communication
American University
3201 New Mexico Av. NW, #330
Washington, DC 20016-8080
www.centerforsocialmedia.org
[log in to unmask]
202-643-5356

"Man's capacity for justice makes democracy possible; but man's inclination
to injustice makes democracy necessary."  Reinhold Niebuhr

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