[Jandek] Re: Clarifying the Copyright Thing
achankin at gmail.com
Fri Feb 23 21:34:52 PST 2007
First, I apologize to Danen for using your quote in that way. I really
didn't mean to make it personal at all, but I do feel it's important for
everyone to to be well informed about copyright. After all, I make my bread
both from creating things that are copyrighted, and from protecting and
conserving things that have others' copyrights.
The matter that you bring up about describing the content of a
correspondence is a different matter from what I understood is being
discussed on the list. I had in mind a couple of examples: the individuals
who have published verbatim correspondence to the list (and this has
happened in the last few weeks, e.g. the "Bergman" correspondence), and the
individuals who decided to ask people to send them copies of their
correspondence for personal collection and/or publication. Both of those
things are legally wrong, not to mention in my view unethical and
disrespectful, and I finally decided it bothered me so much that I wanted to
set the record straight on the list. I did not have in mind at all people
who vaguely described the contents of correspondence they may have recieved.
"unless the letter could be said to commercially de-value the creative works
of an artist (a curious idea concerning Corwood) the chances are good that
no monetary award would be given in a civil suit."
I'm not as certain about that; I'm not a lawyer and I've had the good
fortune to be able to stay out of these sort of lawsuits.
However, let me play the "devil's advocate. Were I a lawyer, and someone
defended publishing a correspondence in that manner, it would be very easy
to construct plausible other ways in which the copyright infringement did
affect the artist.
For example, people are obviously interested in these correspondences,
judging from the behavior we see on the list. People are often interested
in the correspondences of artists and other notable figures. There is a
whole genre of books calle belles lettres devoted to the publication of such
correspondences. And some of us realize that Mr. Jandek or Corwood Rep or
whoever he is, can be particularly eloquent in correspondence, and such a
book might be of high interest and value.
Who has the right to derive financial profit from those books of belles
lettres? Why, none other than the person who wrote the correspondence, of
course, not the recipients. And who has the right to give permission to
publish those books? Again, only the writer of the correspondence to be
published. The recipient of the correspondence, frankly, has no say in the
matter. They cannot give permission, and they do not need to be consulted.
It could easily be argued that by divulging the contents of correspondence
without permission, a person undermines the marketability of a book of
belles lettres by an artist. Do you see what I mean? So, I think it is
never safe to assume it is safe to publish a correspondence from someone,
even if the contents don't seem to affect the value of their other work,
because the correspondence is potentially a valuable work in and of itself.
That is especially true if the person who wrote the correspondence is a
subject of any public interest.
As for the matter of merely paraphrasing the contents of correspondence, I'm
afraid I really don't know the legal status of that for sure. I probably
should look into it. Obviously it's of lesser importance than avoiding
publishing a correspondence or part thereof verbatim. However, I am still
not certain that it is actually permissible. In the absence of legal
knowledge on the matter my inclination would be to err on the side of
caution. And also to rely on the ethical sense as a guide: people sending
correspondence usually do so on the expectation that they are making a
private communication. So, it still doesn't seem right to share the
contents, even by paraphrasing, unless they have directly indicated that the
matter discussed is not a private communication to you, but something that
may be shared.
Now all this said, I again don't know Corwood's preferences here. I'm not
writing this for them, nothing of the sort. For all I know, they may be
fine with descriptions of the correspondence or even verbatim publication of
the entire contents of his correspondence. I kind of doubt it, but who
knows? The point I'm trying to make is just that it's up to Corwood - we
should find out what Corwood wants, and respect it; realize it's not our
decision. And if he says nothing, as is his wont, then, as much as it
grieves us, we need to respect the copyright and keep the correspondence
Anyhow, here's to Corwood -
On 2/23/07, Danen D. Jobe <djobe at uark.edu> wrote:
> > Ah, come on guys. You know better, or you really ought to.
> > "a letter is not actually a copyrighted statement, and in fact can
> > said to
> > be "owned" by its recipient. So it's on the recipient's shoulders."
> > Sorry, but no, what you stated there is totally incorrect.
> More that the way I said it was totally incorrect, and I should have
> clarified. What I should have said is that the FACTS of the letter are NOT
> copyrighted. Copyright law exists mostly for things which have commercial
> value, though it can be said that posting a letter as sent or using the
> wording exactly as sent is a violation. That said, unless the letter could
> be said to commercially de-value the creative works of an artist (a curious
> idea concerning Corwood) the chances are good that no monetary award would
> be given in a civil suit.
> And again, paraphrasing facts is totally within the law. If someone wishes
> to take the content of a letter (and, again, I want to note that I'm NOT
> advocating this AT ALL) and re-phrase it that is absolutely in the
> recipient's rights. It can be rude as hell, depending on the nature of the
> letter, but not illegal. Scanning the letter and posting it (or even
> duplicating the words of the letter exactly) is illegal, but since copyright
> dispute is a civil court issue, it's doubtful that a suit would bear weight
> unless the postee stood to gain monetarily from said posting, or, again, if
> the posting could be said to devalue copyrighted works . Most likely, a
> person would sue over the posting of letter content for slander, although
> again said person would have to convince a judge and jury that said person
> was a victim of public humiliation.
> In short: If Corwood says they used a fretless bass on a recording and
> someone notes this to the list that's fine (legally, at least, though from
> what I know Corwood doesn't seem to mind when this sort of info is shared).
> If someone posts the exact wording of the letter from Corwood, that could be
> considered a copyright violation, but would only hold water if a court would
> consider that to devalue the original work or demean the artist. Now if
> someone posted an mp3 of a song off an album in order to demonstrate the use
> of said bass, that constitutes a serious copyright violation and an easy
> lawsuit because you're using the specific artistic work without permission.
> We now return you to complete anticipation of the Richmond, Austin and
> Manhattan shows.
> > A letter absolutely is a copyright protected from the moment the
> > pen hits
> > the page. It is NOT on the recipients shoulders whether to publish
> > it. The
> > recipient has zero legal right to publish a letter from someone
> > else without
> > permission, and is breaking the law if they do so.
> > If you don't believe me, look up the law for yourself; I'll make it
> > easy for
> > you to do so:
> > http://www.copyright.gov/title17/92chap2.html
> > 202. Ownership of copyright as distinct from ownership of material
> > object
> > Ownership of a copyright, or of any of the exclusive rights under a
> > copyright, is distinct from ownership of any material object in
> > which the
> > work is embodied. Transfer of ownership of any material object,
> > includingthe copy or phonorecord in which the work is first fixed,
> > does not of itself
> > convey any rights in the copyrighted work embodied in the object;
> > nor, in
> > the absence of an agreement, does transfer of ownership of a
> > copyright or of
> > any exclusive rights under a copyright convey property rights in any
> > material object.
> > As I mentioned the respect issue is separate, that is more of a
> > personalethical question, to which I personally believe the answer
> > there supports
> > the legal answer.
> > As for the "poor man's copyright" someone mentioned, that is again
> > not quite
> > spot on. A work is copyrighted from the instant you create it.
> > You do not
> > have to register it in any way for copyright to exist. The poor mans
> > copyright refers to how one registers a copyright. The only way to
> > officially register it in the US is to mail it in with the proper
> > forms and
> > fees to the US copyright office. Poor mans copyright refers to the
> > ideasome people have that they can mail a work or document to
> > themselves and
> > thus provide some evidence that they created it and when they did,
> > and of
> > course the US copyright office wants to discourage you from doing
> > that for a
> > lot of good reasons. But the work is copyrighted whether it is
> > registeredor not, or even if it is incorrectly registered.
> > http://www.copyright.gov/title17/92chap4.html#408
> > 408. Copyright registration in
> > general8<http://www.copyright.gov/title17/92chap4.html#4-8>
> > (a) Registration Permissive. — At any time during the subsistence
> > of the
> > first term of copyright in any published or unpublished work in
> > which the
> > copyright was secured before January 1, 1978, and during the
> > subsistence of
> > any copyright secured on or after that date, the owner of copyright
> > or of
> > any exclusive right in the work may obtain registration of the
> > copyrightclaim by delivering to the Copyright Office the deposit
> > specified by this
> > section, together with the application and fee specified by sections
> > 409<http://www.copyright.gov/title17/92chap4.html#409>and
> > 708. <http://www.copyright.gov/title17/92chap7.html#708> Such
> > registrationis not a condition of copyright protection.
> > Again, all of this is not to say that the correspondence can never be
> > published. It is all just to say that it is Corwood's decision as
> > to if and
> > when that correspondence is published, even if they sent it to other
> > people. (Unless you are talking about some time in the future when
> > thecopyright has expired, which is likely to be at least the 22nd
> > century.)
> > It could be all public domain, right now, but only if Corwood chose
> > to make
> > it so. I haven't seen anything suggesting that has taken place, so
> > in the
> > absence of any permission, people really shouldn't be posting bits
> > of their
> > correspondence here or elsewhere on the internet. I personally
> > think it's
> > disrespectful, but that is besides the point, it is actually illegal.
> > Art C.
> > P.S. Lauren, again I agree it has nothing to do with the veil of
> > secrecy or
> > anything. This protection applies when you or I or Grandma Smith
> > writes a
> > letter too, it really has nothing to do with Jandek per se.
> > I also have to object to the distinction you draw between
> > "letters" and
> > "notes." There is no such distinction in copyright law. Brief
> > notes are
> > equally protected as correspondence. I'm glad you feel it wise not
> > to share
> > things out of courtesy, but you should extend that courtesy to
> > everythingyou recieve from anyone, even if it's brief, and keep in
> > mind that not just
> > your courtesy, but awareness of people's rights is a factor to
> > consider.
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