The Cartoon Picayune

The Difficulties of Copyright in the 21st Century

My most recent comic, Bittersweets and Bittersharps doesn't actually begin with the title page. Before I started drawing anything, I found a poem by Robert Frost called "In a Glass of Cider." You can easily find its text by googling it, but the book it was published in, In The Clearing, is very out of print.

I wanted very much to use the text of the poem, and because I didn't want to find myself in trouble later, I went through the appropriate channels to ask permission. After finally getting someone on the phone I learned that it would cost $85-90 for that length of poem, even for as few as 100 copies. Even if I did pay, my piece would have to to be cleared by the executor of the estate, who would need to "see graphics" before granting permission.

Now, you may be asking, why even ask for permission? If The CP is journalism wouldn't there be a fair use exemption? Unfortunately, I'm not so sure. Here's what the 1976 Copyright Act established:

17 U.S.C. § 107 Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
(4) and the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

So? I didn't pass the Bar but I know I little bit*: count (1) against me because I want to sell copies of my comic. Not sure what to do with (2) because I'm talking about portraying the poem alongside my comic. Count (3) against me too because I'm using the whole poem, not a portion. However, there's no way I'm competing with the market for this poem, as in (4). The book is out of print and it's free everywhere on the Internet! And I say that The CP is journalism, but who knows what it looks like in the eyes of the law.

Still with me? I like fair use, and I'm fine with creators holding on to the rights they deserve from their creations, but to me this experience serves as a case study in what doesn't work about copyright law as it stands. Why should the estate of a man who's been dead nearly 50 years be asking so much for an eight-line poem that they let fall out of print? Sure, they probably wouldn't have noticed if I had just gone ahead and used it in my comics. But who knows? Here's my solution, as it will appear in the The Cartoon Picayune #1:

I'm a big fan of Creative Commons licenses, and try to use them as much as possible. I think we live in a golden age of sampling and remix culture and I want that stuff to be encouraged as much as possible, but then again I've never had a copyright or trademark stolen. I want to make sure that the contributions to the The CP are protected. For more on this important issue, read this really intelligent interview with cartoonist Dylan Horrocks.

*apologies to Mr. Z

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  1. I think you found a good way to use the poem without really using it. In the process, you put the story in your voice, which is probably more effective in the long run.

    You’re also absolutely right that using the poem would not have been fair use. Frost’s estate has the right to say no and to charge whatever they want for the use of his works. (And as an aside, anything less than what they were asking wouldn’t even be worth their time to do the paperwork.)

    PS — Just because the work has been pirated elsewhere does not make it more acceptable to keep on using it.

  2. Check out this presentation on copyright and open source. Interesting stuff.

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