Skip to content

Haiku Maven: Too Sensitive?

hm_logo Dear Haiku Maven, One of my haiku has been republished in an essay. The author of the essay did not seek my permission to use it or even bother to notify me that they were planning on using it for such a purpose. Am I being too sensitive or am I right to feel annoyed? Peeved

Haiku Maven thinks you are not being too sensitive and are right to feel annoyed. In this age of global haiku and confusing copyright rules, it is best to err on the side of caution and obtain that permission. Alas, this particular essayist erred but not on the side of caution.

Haiku Maven offers advice about awkward situations involving haiku poets. The word maven comes from the Yiddish meyvn, meaning “one who understands.” Please use our Contact page to send a question. Haiku Maven will select a pseudonym for you based on your question. Click this link to see the Haiku Maven archive. Feel free to leave comments.

This Post Has 57 Comments

  1. In December, it will be fours years of blogging with WordPress for me. We celebrate “blog anniversaries!” WordPress will send me a little picture. I’m sure others have stories about blogs with various companies and other social media options.

    I see blogs as a genre all their own. They grow in so many ways, reflect so many styles of creativity. One aspect that has been so good for me is that it’s impossible to figure out any one approach. I’ve become more flexible than I used to be. One day at a time. Still an adventure. Many ways to manage. I have my comments set up to turn off automatically after 14 days for a new post. This has reduced spam – and then I’m not moderating comments at the expense of new writing, yet I do enjoy the conversation. I have small sites with no comments too, where I reprint from my archives in different ways.

    I look forward to learning more about the Forum – would imagine all the programs and features work together for different people in their own way. There is so much here now, I could never read it all. Like a library (or even my own bookshelves!).

    I love that discussions develop naturally. That’s the best way to learn in my view. When I worked in teacher training and taught a college class for the first time, when in grad school, I remember gaining the confidence as a teacher to allow the freedom in discussion. I looked at my notes at the end of a class and said to the group, “We’ve covered everything that I have here in my notes for today.” Then I simply reviewed and gave the class some structure – necessary to do that there, to be sure some things were clear. That was a first for me.

    But with blogs, it’s simply friendship and being creative. Having been in a very structured academic world for years – and I do respect the structures, especially with teacher certification rules/standards – blogging was how I became creative again as a poet. Some people get book contracts etc after they have grown a “platform” – and that’s great, good for them – but for me now, they simply keep me growing and writing. Had penpals when young – so the comments echo that time.

    Some blogs have hundreds and thousands of “followers” and some have a few followers. All equal and encouraged. WordPress reminds people not to get overly involved with “the stats” but to keep the focus on creating. They teach a lot.

    Thanks, Haiku Maven, for good prompts for discussion. Very good of you to let the conversation grow . . .

    Ellen

  2. Richard, I see this discussion here as ephemeral, where those who follow it as it happens can benefit. It’s still possible to search for it within the site, even if the comments might not be picked up by search engines. Are you saying that forum posts ARE? In any event, I don’t see the posts as being disorganized. Rather, I see them as unfolding organically. To me these comments have been perfectly easy to follow, although yes, the forum is easier to follow, once you dig into the right place. When this blog started (not just this thread; I mean the entire entire blog), I tended to follow it pretty closely. When the forums started, I kind of dropped out of discussions that moved there, with occasional exceptions. Somehow I find this blog more engaging and easier to use, whatever the pros and cons might be for the forum. In any event, this posting is now off topic.

  3. Hi Michael, I heard the ‘google book’ ruling on NPR today, as well. As to these posts. We are in a blog “commensts” section of the system. Our posts are not searchable, they are disorganized, there are many pages as well, and it’s not possible to search for a particular member’s posts, in order. As well as the other items (quoting, editing) I mentioned earlier. your post on google is a case in point — we can have a thread on fair use and publishing (and related issues) in the forum, where developments can be followed. This c”comment” area hardly seems appropriate to me. I would be happy to host/moderate such a sub-form or thread, if possible, but if you and others here aren’t into it, and THF isn’t supporting the idea (I haven’t heard anything but “make a thread somewhere,” to date), why push it, eh?

  4. Fair use is in the news today. Google just had a lawsuit against it dismissed, the judge saying that Google’s scanning and use of the entire texts of millions of books in its Google Books project constituted fair use. Read about it at http://www.bloomberg.com/news/2013-11-14/google-wins-summary-judgment-in-digital-books-copyright-case.html. The key points in the dismissal were that the benefit to society far outweighed any losses of rights to the authors, and that the service is more likely to bring attention to the books, generating sales and citations, rather than to decrease sales, etc. I have used Google Books many times for research. For example, I’ve been wanting to know for years if Alan Watts ever wrote any haiku of his own, and I was able to discover that he had, thanks to Google Books. One of his books with one of his haiku in it was actually one I had in my library, but I never would have found the poem nearly so easily if it weren’t for Google Books. While I can imagine some cases where authors might have justifiable complaints, in general I think this is a good ruling. It’s also relevant to haiku because it shows an occasion where the quoting of an entire piece of work, under fair use guidelines, has benefit to society — which I would say also applies to quoting entire haiku without permission in most critical/scholarly contexts.

    Also relevant here is the implication to The Haiku Foundation’s project of scanning haiku books. My understanding is that the author’s permission is always sought, where possible. For these books, I do think permission is a good idea, because I believe most people READ and enjoy the entire collection of haiku online (and thus would not buy the book), as opposed to using it for research. Because many of these haiku books, especially older ones, are rare, being able to read and enjoy these books online is a worthwhile service, but I do think author permission should usually be granted in this case.

    And for what it’s worth, I see zero problem in a discussion generating many posts, as this one has. If the topic warrants it, why not? Those who want to read it can read it, and those who don’t aren’t being forced. I see no need to move the discussion elsewhere — but it’s fine, of course, to start a new discussion anywhere.

  5. This discussion took a fair amount of time this week, and time well spent. However, if the conversation had happened in person, it would not be that long.

    I look forward to learning more about the Forum. I like the idea of being able to edit my posts. That’s one thing I love about blogging. Also with blogs, a discussion this long is not unusual. I give THF a lot of credit for providing a place of open discussion.

    Learned a lot this week . . .

    On a lighter note, it’s wonderful how the language of poetry becomes part of conversation, as Michael said at the end of his recent comment. My mother quoted Shakespeare “to the end” – few people understood, but I knew what she was saying. Sometimes in her literature classes, she’d share with her students the sources for language in novels – that the authors expected their readers to know without any references – like “the handwriting on the wall” from the King James Version of the Bible (in the Public Domain).

    And Keats – “beauty is truth, truth beauty” – came across that again this week in a book by Luci Shaw (Breath for the Bones: Art, Imagination, and Spirit; Thomas Nelson, 2007).

    So will close here – and register for the Forum soon.

    Thank you, Ellen

  6. Several people have emailed me to say this has gone on too long, and has become “a circus,” in terms of the comments. I received an email from a haiku poet who has been rather put off, feeling that “fair use” was addressed early on.

    I’d like to move the main content (invite those who have posted comments) to the Forum Board. Just open up a new thread, that is. But where? Which Sub-forum? “News” doesn’t seem to fit, and “In-Depth Discussion” deals with haiku, in particular. We are here concerned with criticism and issues relating to publication.

    “Field Notes” sounds right, but it’s a sub-forum for invited panelists.

    I think there is more to discuss, but wouldn’t it be nice to 1) edit your posts after you posted, 2) easily quote another’s post, and follow threads more easily — including titling your post(s)? Any recommendations for a place to continue elsewhere? It’s easy enough to do.

  7. I’m not sure that any emendation is needed. The Maven has the right to free speech. It’s up to the Maven to decide if different advice might be better. I would also respect the right of any publisher (such as the computer book publisher I cited previously) to have whatever permissions policy it wishes. If either should ask my opinion, though, I would say that quoting an entire haiku for the sake of discussing it in most scholarly or critical settings should be considered fair use, and not require permission.

    As for your comment, Lane, citing credits/bibliography isn’t the issue here, as Lorin has already clarified. And yes, the premise of this whole discussion is the use of previously published work for the sake of discussion. The issue, rather, is whether one needs to seek permission to quote an entire haiku in such a context. I would generally say no. But that’s completely separate from whether you cite publication credits, which may or may not be relevant to include depending on the context, but you should at least identify the author. For example, if I wanted to discuss J. W. Hackett’s famous “bitter morning” haiku, in some contexts it would be fine to quote it and refer to it as “widely anthologized.” That could also be appropriate for poems that aren’t nearly so famous. A truly scholarly paper would want a proper citation, of course. Then again, do you really need to give full citations for Shakespeare or Keats? I don’t think so. And with content famous enough, you may not even need to identify the author. But that’s an aside.

  8. Hi Lane,
    Yes, back on the thread here and there it’s been assumed that Peeved’s haiku was correctly attributed to ‘Peeved’ and the source where the essayist found the haiku published was cited.

    We have to assume, going by ‘Peeved’s’ query, that the issue is simply that of an essayist not seeking permission of the author to use a published haiku within an essay and ‘Peeved’s’ disappointment or annoyance about not being asked.

    – Lorin

  9. Ruth,
    Whilst some have been quite passionate in their posts, you are the first to stoop to sarcasm.

    Have you considered that “In this age of global haiku and confusing copyright rules, …” it might be best not to make the judgement that essayists are in error when they do not seek permission of the author/ copyright holder before including a haiku in their essay?
    Haiku Maven:”Alas, this particular essayist erred … ”

    Since this sort of column gives general advice and we have no more to go on than the details in ‘Peeved’s’ enquiry, HM’s response can be taken to mean that essayists and reviewers are in the wrong when they do not seek permission before referring to haiku in their work.

    What’s needed is that those who’re unsure what their realistic rights are in relationship to their poems, both unpublished and published, have somewhere to go to ask for information. One would’ve thought that the Haiku Maven column would be just the place for both reassurance and an explanation of why it’s important that essays, reviews and critical works remain free of the protocols and courtesies that may otherwise apply.

    It’s not in anyone’s best interests to erode the practice of study and criticism. And if people aren’t well-informed and also reasonable about this issue, there is the rather nasty potential for covert censorship (as someone else on the thread mentioned). For instance authors/ copyright holders of haiku could control who commented on their work, choose who could & who couldn’t, with no more reason that they didn’t like the shape of one essayists/reviewer’s head and another was one of their mates.

    Far-fetched? Let’s not be naive.

    – Lorin

  10. I wonder. . .

    The word republished jumps out at me in Peeved’s letter to Haiku Maven. Republished leads me to believe the work in question was cited from a publication of some type. Could the author have cited credits/bibliography?

    Just curious.

    LM

  11. And don’t forget, dear Haiku Maven, after you issue a “RETRACTION, EMENDATION,” or “STATEMENT OF CORRECTION” for the sin of conveying “misleading misinformation” to ensure “visitors are not inculcated in sophistry and fear,” or you are not “advocating what is effectively censorship . . .,” you might do a self-flagellation or a rending of garments to show true penitence, ‘cause I see no other way of satisfying the furious, self-righteous, self-serving torrent of invective you unleashed when you said (quite gently, I thought), “In this age of global haiku and confusing copyright rules, it is best to err on the side of caution and obtain that permission” – can you?

  12. For new readers, I noticed that The Haiku Foundation has an official statement of “Copyright Policies” filed under “About THF.”

    While I have read every comment, I will have to reread to fully understand the discussion. When I mentioned teaching academic writing, this was when I was a professor in education at NEIU, some time ago. We followed the manual for The American Psychological Association.

    My thought now is to simply comment on all the levels of discussion. I told my students I would rather be criticized for citing a source when not completely necessary than the reverse. We were speaking of when a research finding has become common knowledge, and a profession carefully growing a body of peer-reviewed research. I also assisted a professor with the permissions process for his book, and this was reprinting graphs and actual data, as I recall. Then the book would have gone through an intensive process at the publisher.

    I see better some of the issues with a brief form like haiku.

    Sometimes when I read here, I realize it is a discussion among peers, and much is beyond my knowledge in haiku. Yet I also ponder, for example, the difference in presentation in an undergraduate class as opposed to when working with a student on a Master’s thesis. High school students and younger are also learning to write and are publishing on blogs.

    I wrote a lot of comments on papers, and sometimes students felt that was automatically a criticism. I said no, we’re having a conversation. Feedback as an extension of class. When I left teaching and began with writing more, I thought, “I want to be teachable.” Not be too sensitive, and this takes conscious effort still.

    So when we are criticized, when poems are not accepted, that is an opportunity to be gracious. It means someone took our work seriously, read it, thought about it. I am more of an independent kind of learner, but when I got to my dissertation, I remember how careful all my sentences were – knowing all the levels of review ahead of me. The Chair of my committee asked me to rewrite my last chapter – he basically said, “Ellen this is not you. What happened?” He wanted me to be myself and write with my usual spirit.

    Thank you, always learn so much here.

    Am reading more in the Forum also . . . not worrying about what I don’t understand at this time. I should know how the learning curve works a little by now!

    Ellen

  13. When I said ‘amended’, I don’t mean the original advice as it stands now should be deleted, but that a subsequent par or three acknowledging that the original contains misleading information which shouldn’t be taken at face value should be added, and a more accurate response in relation to of the ‘fair use’ laws considered for quoting haiku should be given, perhaps with a relevant link or two.

    And perhaps the comments threads to Haiku Maven are archived, at least for a while. I haven’t checked, but I know that comments on other of these blog articles, such as the one on the last Haiku Now! Book Awards disappeared after a few months, so any archived threads on these blog threads can be deleted by whomever is in charge or even might automatically vanish after a certain time, depending on the settings in use… and thereafter not a trace remains to show that they ever existed.

    – Lorin

  14. I agree, Richard, that Haiku Maven’s advice, in this case, needs to be amended for the record. It’s been shown to be misleading advice.

    In view of the fact that ,with these blog features, the original article (in this case Peeved’s query, Haiku Maven’s response, cat image, date etc. are archived BUT the posted comments ARE NOT ARCHIVED, it has the potential to be permanently misleading and taken to represent the view of THF administration if not amended.

    I’d advise everyone, and especially Michael and Richard, to take a copy of their posts (which took time to write and have many useful links for readers wanting to follow up)

    – Lorin

  15. CALL FOR RETRACTION, EMENDATION

    The “Haiku Maven” column is certainly a fun read. It began in March 2013, as a weekly post, with a hiatus, July 29-September 6. It strikes me as in the “Dear Abbey” mode, with a wry twist. The advice has been perspicacious. The first comments on a post appear on September 20 (for “Special Treatment” (7)). The last five weeks each have comments, though it’s only the last two which have really rung the “comments” bell: “War of the Sexes” (18 Oct) with 18, and our winner by far, the current post “Too Sensitive?” with 42 comments, and counting.

    This is not coincidental. It is the only post which concerns legal matters of fair use, and is a relevant issue to the commenters, many of whom are respected haiku poets, educators and critics. Some number of commenters (including myself) have studied the matter of fair use and haiku in some detail.

    In reviewing the Maven’s advice, and the majority consensus among commentors – I would like to offer several points. The first is that the Maven, based on previous posts has offered sage advice. Just like the old “Dear Abbey” column (I am of a certain age), a measure of trust has been established in terms of sagacity. As well, just above the post and to the right in large, bold block letters is the moniker: “HAIKU FOUNDATION BLOG.”

    The consensus of the commentators is that, in this case, the Maven’s advice, responding to the query:

    “One of my haiku has been republished in an essay. The author of the essay did not seek my permission…” The advice (guidance or education) is DEAD WRONG. In particular this statement, “In this age of global haiku and confusing copyright rules, it is best to err on the side of caution and obtain that permission. Alas, this particular essayist erred but not on the side of caution.”

    The essayist did not err. A work of transformative criticism (commentary, essays, criticism, parody) is protected under fair use. The only outstanding issue – which has never come to court (the only way to definitively determine the specific issue, as the law is vague) is whether an entire haiku can be quoted. Nonetheless, there is a preponderance of evidence and an excellent study, on the Harvard Law School Blog:

    “Haiku and the Fair Use Doctrine” by David Giacalone (2004)
    http://blogs.law.harvard.edu/ethicalesq/haiku-and-the-fair-use-doctrine

    Quoted/linked by myself (Richard Gilbert, November 8, 2013 at 12:36 pm) and Michael Dylan Welch (November 8, 2013 at 1:17 pm). This article,
    looks at related cases, and with its own excellent comments, comes to over 11,000 words. Its conclusion is that it is not possible to comprehend a short work such as haiku, without quoting all of it, for the purposes of comment and critique.

    There is a second article linked by myself, one which I feel is equally significant, concerning the erosion of free speech; what I, in an earlier post (and don Baird also), referred to as fear mongering. The Maven’s statement: “it is best to err on the side of caution” is a form of fear mongering, when one considers the implications of “caution” here. what is “best” is to understand the intent of the law, and consider what many commentators have pointed out – critics and commentators are free to re-publish haiku without permission, in a transformative critical context.

    The erosion of free speech, via teh erosion of fair use doctrine, is continuing, as Orlans points out (nearly 15 years ago–the situation has continued to deteriorate):
    “Fair Use in US Scholarly Publishing” by Harold Orlans (“Learned Publishing 12”, 1999. pp.235-244): http://danm.ucsc.edu/~abtollef/Physical_Poetry/fair%20use.pdf

    *** Based on a record of sage advice, and the establishment of veracity, “Haiku Maven,” while playful, has not been acting as an agent provocateur (or an agent of parody) in this case, and therefore SHOULD OFFER A STATEMENT OF CORRECTION, within the post itself, if possible, so that visitors are not inculcated in sophistry and fear, when it comes to published creative commentary and critique. The promotion of “permissions” for criticism is anti-free speech, un-democratic, anathema to the concerns of our community and to the relevance of haiku to social consciousness.

    It may also be noted that throughout the THF blogs and forum posts are a plethora of instances of haiku re-published without permission. Isn’t the Maven then advocating what is effectively censorship, for the THF (the hoster of its own screed)? Does this stance strike anyone as paradoxical?

    Consensus:
    ————–
    Paul Miller (November 8, 2013 at 9:00 am)
    “… [In an essay] how can I ask permission knowing that permission will possibly be denied? At this point do I go ahead (which makes the asking pointless) or pull the poem (which is censorship)Asking may severely limit my essay’s choices and possible arguments.”

    Richard Gilbert (November 8, 2013 at 11:54 am)
    “Intellectual freedom concerning transformative works of criticism is directly related to the principle of quotation without permission, by reviewers, essayists and critics.”

    Don Baird (November 8, 2013 at 12:22 pm)
    “This is rather simple: using material in critical papers has always been protected in court; and, should be. Beyond law however, if a poet/author doesn’t want their work critiqued or included in critical papers, then do not post them publicly. This is simple: become public, be judged by the public. Easy enough.”

    Richard Gilbert ( November 8, 2013 at 12:36 pm)
    “’If, … you are confident that your proposed use of an excerpt is fair use, it is best not to ask for permission. Scholars should exercise the right of fair use when it applies; otherwise it could be eroded. Also, by asking…you would be tacitly admitting that permission is needed, thus undermining your claim that the fair use exception applies.’”

    Michael Dylan Welch (November 8, 2013 at 1:17 pm)
    “Haiku are short enough that it’s hardly possible to even refer to them without quoting the entire thing. As has been mentioned, if one’s poem has been published, then it’s up for possible discussion. How, then, can you discuss a poem so short as haiku? Fair-use laws tend to break down with poems as short as haiku and I think it usually IS appropriate to quote poems in reviews and critique articles without getting permission.” … “I would also say that Paul’s use of the term “censorship” is perfectly appropriate. If a poet is asked permission to quote his or her poem in a critical article, and declines, then that poet has indeed censored what could have been said about it …”

    S.M.Abeles (November 8, 2013 at 7:02 pm)
    “The point of copyright protection is not to reward the author — that is an ancillary benefit. The point is to maximize societal welfare by incentivizing creativity and its attendant benefits. … So whether the author of a given work is peeved is not the point at all — the author may be infuriated or flattered, it does not matter. The question is whether society is better off in the long run if it chooses to require or excuse the need for an author’s reprint right in a critical essay. Viewed this way (properly) the answer is self-evident.”

    Lorin (November 8, 2013 at 10:33 pm)
    As others have stated, your permission is required in some cases of republication, such as in anthologies or other collections. … as others have noted in detail, it’s common & normal practice for reviewers and essayists to cite examples of anyone’s *published* work to illustrate their points and as far as I know there’s no requirement to ask permission for this or to notify you. (See others’ posts regarding ‘fair use’.)

    Lynne (November 9, 2013 at 3:22 am)
    “I’m in the essayist’s camp and particularly support Paul Miller’s comment about how asking for permission can instigate unnecessary dialogue.”

    h gene murtha (November 9, 2013 at 6:50 am)
    For educational purposes, I thought you can quote anything? If you are giving a reading, performance, etc., and a critic quotes you within a poor review, can you do anything about it? To my knowledge, anything offered to the public is open to commentary.

    Gary Hotham (November 9, 2013 at 10:49 am)
    “ … many times the whole haiku needs to be quoted for it the essay to make its point. It is not quite like quoting a stanza from Eliot’s The Lovesong of J. Alfred Prufrock as evidence to support the essay’s theme. In the end I take the view that one of my haiku quoted in an essay as another opportunity for others to read it and perhaps enjoy it who probably would not have seen it otherwise.”

    Lorin (November 9, 2013 at 4:31 pm)
    “The long & the short of it is that once your work is published, it may be republished within an essay or review, and the fact that you hold copyright is acknowledged by attributing the work to you.”

    Don Baird (November 10, 2013 at 12:19 pm)
    “I fervently argue against the thought “it is in YOUR best interest to try to contact a person about using his/her work” ~ dafne (in regards to critique). A critical writer has no interest what-so-ever in contacting anyone regarding permission to use their work. That clearly impairs the analyst’s ability to reach the public with his/her response to a poet’s work (or composer, author etc.). We cannot not allow a poet (haiku or other) the control of what someone may say in a book review or in regards to individual poems. Critiquing is an integral part of the creative arts and it has its place – an important one. In the end, this is a fear based problem …”

    Michael Dylan Welch (November 11, 2013 at 7:21 pm)
    This post, related to the erosion of fair use, by someone who clearly has professional expertise: “I would also say that I generally disagree with [large, for-profit computer book publisher] O’Rielly’s policy to seek permission as readily as it suggests, at least for haiku essay purposes, because their approach diminishes the very point of fair use. By asking permission for something that really should be fair use, they erode the notion of fair use, and change (not for the better) the expectations of copyright holders, not to mention future authors who are denied proper fair use. . . . It’s a real shame, because it confuses the notion of fair use, potentially destroying it. But what they do is a liability policy, and not really a legal policy. And it’s certainly several steps removed from the act of quoting a haiku so you can discuss it.”

    If my “call for retraction” meets with your approval, please post a new comment asking for a retraction. (I know of no other way to alert the “Maven.”) Thank you.

  16. Dear S.M. Abeles,

    I had not heard that story – but Neil Young and Joni Mitchell – those long winters in Canada. I listened to Joni so often when young. Still return. I think she spoke of how childhood polio and those winters shaped her art – creativity and imagination growing. She was ahead of her time. The Blue album stands alone – she said she was the most vulnerable there. I love her more recent works too – whatever left her voice with age was more than replaced with wisdom – as if life caught up with the early rapid growth of her gifts. “Something’s lost/and something’s gained/in living every day” Both Sides Now. We saw her in Chicago around 2000, I think.

    Ellen

  17. Apropos of not letting one’s ego get in the way of criticism (or publicity), the great Neil Young — who lambasted the state of Alabama in his song “Southern Man” — was supposedly once asked how he felt about the retort delivered him in “Sweet Home Alabama” by Lynyrd Skynyrd (which would become a rock classic and far more recognizable than “Southern Man”). Young is reputed to have said, more or less, “I heard this song on the radio, and thought it was really great. Then I heard my name. And I thought it was even greater.”

  18. Thank you, Lorin; and Michael, I will read what you wrote carefully. And nice to meet you Alice and all . . .

    I’ve felt for a long time that being an editor is an art form in and of itself. It is a wonderful gift to give a writer, and I know many editors are able to achieve in many ways with equal success. “Less is more” for me now.

    When I first began sending poems for review, in the late 1980s, Charles Waugaman (1932 – 2010), from TIME OF SINGING was that kind of editor for me. After he retired, we became friends, although we did not meet in person. His art is still a part of my everyday life. Lora Zill, the current editor, and I worked on two book projects with others. She also mentioned The Haiku Foundation Education Wall in their fall issue, and my volunteer work with Jim Kacian as editor. So with all the wonderful journals and books, haiku and THF reaches new people.

    So this is far from the question now – simply a thank you. When your work is in good hands, and you are free to create, that is truly a unique gift.

    We had snow in Wisconsin yesterday! Winter is here.

    Ellen

  19. Yes, Alice, I would agree that “anyone has the right to publish a book review, good or bad, without asking [to quote particular haiku/senryu or other similarly short poems].” I would say most academic or discussion-based essays about haiku would be the same as book reviews. However, particular journals or book publishers are also free to have varying policies or preferences that may require permission.

    I do note, however, that on their copyright pages many books say that no material may be quoted without written permission, except in the case of book reviews. Such copyright pages can say anything they like, but that doesn’t necessarily overturn fair use expectations. Fair-use cases take into account a preponderance of many different factors, which include the length of the original work, how much of it is being quoted (the law doesn’t really account properly for poetry as short as haiku, unfortunately), how it is being quoted, the size of the quoted piece relative to the context, how crucial or prominent the quoted piece is in the context, and many other factors, such as the size of the print run. What might be deemed fair use in one context might not be in another.

  20. Thank you Michael for clarifying the difference. I guess book reviews, then, fall into the category of informing the public of an honest opinion of your work. I believe anyone has the right to publish a book review, good or bad, without asking. Would that be the same?

  21. I have occasionally been asked for permission to have one of my poems quoted in an essay. I have deliberately not asked what the author was going to say about the poem, even if I thought it might be negative. I’m of the opinion that the poems stand on their own, and readers are free to like or not like particular poems. I also realize that poems I wrote 25 years ago might not be at all like what I’d write today, and I’m happy to let them go, taking neither criticism OR praise too seriously. That applies to recent poems, too, though. I’m happy to trust that the poem will connect with its audience—or not—and that is fine with me. Everyone loves praise (some praise comes in the form of prize money in contests), and I enjoy that as much as the next person, but I have to remind myself not to take even that too seriously. That, to me, is the best way to justify not taking criticism too seriously either. So you win a prize. Don’t let it go to your head. So you *don’t* win a prize. Don’t let that go to your head either. Trust in the poem, and that it will find its right audience. Or trust that not every poem is going to be your best.

    In 1994, I led the effort to finish the publication of the Haiku Society of America’s book, *A Haiku Path*. Agnes Davidson was in charge of getting permissions, and the decision then was to get permission for each poem and most other quoted passages used in the book. This included discussions and poems recorded in the group’s meeting minutes. I remember there was one very useful discussion from the minutes where the poet denied permission unless all the negative comments about the poem were removed. It’s exactly THAT sort of action that constitutes a sort of censorship. The person’s own ego exceeded any ability to learn from the criticism, let alone to recognize the more valuable benefit of how other people could learn. The person’s own ego also exceeded any trust the poet could have had in the original poem itself (if good) or an abandonment of the poem (if not good, even from the poet’s perspective later on). The poem appeared in the book after all, but with all the negative commentary removed. The odd thing is that there was no longer any reason for the poem to be quoted at all, in my opinion. It wasn’t just my decision to make, but I would have therefore removed the poem entirely. Yet it remains in the book with a sort of half-assed description of it being shared and discussed at an early HSA meeting, yet without presenting any of the discussion itself. This is completely unhelpful to readers, and denies those learning about the HSA’s history the fuller knowledge of how poems were discussed, sometimes heatedly—and how this heated discussion, like the fire that forges metal, helped to forge the very essence of haiku in the English language. This was an act of censorship that was motivated, it seems to me, by an insecure personal ego. For the sake of poets who might be quoted, and readers who might benefit, let that not happen again.

  22. I’d like to look at this issue of getting permissions from this perspective. Imagine that you’re writing an essay on haiku and want to quote two published haiku, one that you praise, one that you are critical of (for which you make a solid case). Here are some scenarios:

    1. You decide to seek permission for both poems. If you get them, with no restrictions, that would seem to be fine. However, you have reinforced the idea in the copyright holders that permission was required, when that might not necessarily be the case. If you don’t get permission, then readers (and the overall benefit to society) are impoverished by not receiving the opinion you could have shared. That opinion could have helped many haiku writers to improve their art, regardless of whether the person whose poem you critiqued might also have improved in his or her haiku art. It’s even possible you might not get permission from the poet whose poem you praise, but even there readers are impoverished by not receiving your opinions, which of course would have made a strong case for why the poem was successful, or what it achieved in a particular context. So whether you get permission or not, there are negatives that result. Both are losses.

    2. You decide not to seek permission for both poems (you might or might not notify the poets that you quote their work, but if you did so, let’s say for the sake of argument that such courtesy notifications cannot change the inclusion of the poems in the essay). So you publish your essay and the poets read it. Both poets might feel that they should have granted their permission first. On the other hand, both poets might recognize that permission would have been a hindrance to open criticism (or praise) and might be happy to have their poems quoted. Even in the case where one of the poems is criticized, the criticized poet can trust readers to disagree with the criticism if the criticism isn’t warranted, or the criticized poet can publish his or her own rational counterarguments, which fosters a deeper understanding of the haiku art. So not getting permissions seems to be, potentially, a mixed bag, and not necessarily all positive. It’s potentially negative for the poets who might feel they should have granted permission. However, I would say that they are not losing anything, since the poem is being discussed, not sold for profit in an anthology. If anything, even negative comments are still publicity for the poet (as P. T. Barnum supposedly said, there’s no such thing as negative publicity). There’s a chance that not seeking permission might have a small percentage of loss, but I feel that the potential gains far outweigh any perceived loss—and that the loss is essentially just perceived, not actual. Remember that I’m talking about the act of seeking permission here, not about the nature of the negative comments about the poem in question. Sure, the poet who is criticized may feel a loss, but that comes from the commentary, not from being quoted without permission.

    3. Another option might be to get permission for the poem you praise, but not the one you criticize, or even vice versa. However, this seems like a double standard that I would reject out of hand.

    Let’s also look at this from the perspective of someone whose poem someone else would like to quote. Again, let’s imagine the following scenarios:

    1. The author decides to seek your permission. If the author praises the poem, surely most people would happily grant permission. This seems like a positive thing, but doesn’t such ready agreement merely feed the ego? Isn’t there something more important about the poetry itself that, hopefully, transcend ego? Shouldn’t the poem have a higher goal to communicate and share a valuable feeling with another person, regardless of whether that reflects positively on the poet who wrote the poem in the first place? It therefore seems shallow to grant permission only if the poem is being praised. And if the author criticizes the poem, doesn’t it seem petty to deny permission and thus censor that author’s presumably rational opinion? In either case, not granting permission would be a loss. I can imagine a scenario where the author requesting permission has a poor reputation or is not rational in his or her discussion. In such a scenario, I can see the value of not granting permission, but this is more from a perspective of having no respect for that *person*, as opposed to having no respect for his or her *opinions*.

    2. The author decides to not seek your permission. When you read the essay, you may like the praise or dislike the criticism, if it’s directed at your poem. But those emotional responses speak to your ego, not to the legal or moral necessity (or not) to seek your permission. So if we take one’s
    ego out of the equation, one thing that remains is society’s benefit. The benefit is clear from good discussion, pro or con. Another thing that remains is the quoted poet’s potential loss. But what legal or monetary loss ever occurs when a published poem is quoted? Absolutely none, at least in any kind of academic/essay setting.

    The upshot of this discussion, I believe, is that permission should generally not be sought to quote poems as short as haiku, and that poets should not expect to grant permission, at least in the context of essays about haiku craft where it is necessary to quote most or all of a short poem in order to discuss it. We already accept this idea in the case of book reviews, but not so readily for other discussion purposes such as essays. This is distinct from the situation where permission is indeed needed to include a poem in an anthology. Is the publication presenting the poem itself AS a poem? Then permission is needed. Or is the publication presenting a discussion ABOUT the poem? Then permission, generally speaking, is probably not needed.

  23. Alice, your reference to http://oreilly.com/oreilly/author/permission/ is a good one, but it needs to be understood in two important ways. The first is that the information there reflects the policy of one particular publisher, O’Reilly (a computer book publisher, some of whose editors I’ve known for years). The comments reflect just their particular policy, which isn’t necessarily good advice across the board. The second point is that it’s talking about books, not journals, let alone academic journals that discuss poetry—where you need to quote the poem to discuss it. In a computer book, you might quote something that you aren’t actually discussing, so the situation and usage is different. The link you shared is talking about oranges, and we’re talking about apples. And maybe we’re not even talking about fruit.

    I would also say that I generally disagree with O’Rielly’s policy to seek permission as readily as it suggests, at least for haiku essay purposes, because their approach diminishes the very point of fair use. By asking permission for something that really should be fair use, they erode the notion of fair use, and change (not for the better) the expectations of copyright holders, not to mention future authors who are denied proper fair use.

    I know where these publishers are coming from, though (I used to be a senior editor for many years at another computer book publisher, and had to follow similar guidelines). It’s not really a legal issue but a liability issue. If they are taken to task (if not taken to court) for the use of content that the copyright holder does not think is fair use, the publisher risks liability for monetary damages and settlements. It’s a shame that they erode the notion of fair use by proactively seeking permissions when they really shouldn’t. But for these mainstream publishers, where many thousands of books are printed and it’s costly to reprint, or to settle claims, you can see why they err on the side of getting permissions, even for content that should be fair use. It’s a real shame, because it confuses the notion of fair use, potentially destroying it. But what they do is a liability policy, and not really a legal policy. And it’s certainly several steps removed from the act of quoting a haiku so you can discuss it. Consequently, I would recommend ignoring the advice on the O’Reilly website, generally speaking, as it doesn’t really apply to the situations we encounter with the quoting and critical discussion of haiku in academic papers or other similar situations.

  24. Hi Ellen,
    ‘Fair use /fair dealing’, ‘professional standards’… and now contracts! 🙂

    Yes, it can get confusing.

    “I’ve seen journals state that rights revert to the poet upon publication, AND that the journal also reserves the right to reprint the poem. ” – Ellen

    There’s no contradiction. When a journal states something like what you say, it’s stating the terms of contract (for that particular journal) which apply to all submissions. When a person submits their work to that journal, the terms are that they do so agreeing that upon publication, and not before that , all publication rights return to them (the author/ copyright holder can republish wherever they choose) and they are agreeing that the particular journal also has the right to republish such work in the future.

    When considering sending a submission anywhere, it’s important to read the submissions guidelines page, where the contract we’ll be entering into if we choose to submit work to that journal will usually be stated.

    It’s simple enough: if we don’t like the terms of the contract for any reason (eg, we might want to publish the work on our own blog or somewhere else before the date of publication in that journal), we don’t enter into a contract with that publisher. We simply don’t submit our work to that journal.

    – Lorin

  25. In a previous Haiku Maven post, we spoke of the value of communication. Another area is Letters To The Editor. I’ve seen editors simply state that they assume a letter can be reprinted unless the writer of the letter says otherwise. Similarly, I’ve seen journals state that rights revert to the poet upon publication, AND that the journal also reserves the right to reprint the poem. This is all fine with me. It takes time to know a journal – where we belong, relative to our goals.

    When I taught academic writing, I did indeed tell my students to “err on the side of caution.”

    Yet I also feel a lot of trust has been grown in this community. In my previous comment here, I said I am fine with my posts being reblogged in the WordPress world, while respecting the wishes of those who state otherwise.

    I personally feel that something gets lost when there is too much “control.” Others in this discussion expressed this far better than me – how an art form grows.

    Perhaps the best thing to do, as others have said in many ways, is to keep writing. A context grows for our work. Sometimes I feel I failed to say something clearly in a blog post, and yet now readers know my heart. They read with me, and I with them. Took some time.

    And to the writer of the original question – you are not too sensitive. I still am way too sensitive, and have to take care every day. I feel if I lost this, I’d lose my best poems too. That’s another discussion . . .

    All the best, Ellen

  26. I didn’t read all of the posts, so if it’s already been cited, please excuse my blunder.
    Some of you might like to read this website. It actually addresses this very concern. http://oreilly.com/oreilly/author/permission/. Seems I remember someone (my editor) once told me to ask permission when I wrote my first ever haiku essay. “Better late than never,” he said. Thanks Jim!

  27. “. . . do we know if Peeved was peeved because the work was included without permission, or without attribution? ” – Lulu

    We can only go by what’s stated, and Peeved says: “The author of the essay did not seek my *permission* to use it …”

    I think we can assume that the haiku was correctly attributed to its author & copyright holder,’Peeved’.

    The issue, for Peeved, is about feeling annoyed at not being asked permission or being notified in advance that her haiku would appear in the essay. Peeved asks whether he/ she has the right to feel annoyed. I take this to be a way of asking for information about what the normal practice is or ‘rules’ are in the matter and also implicitly what his/ her rights, as the author of a published work, are in relation to his/her work being republished: to what extent does an author have control over where or by whom a haiku is republished?

    I think that on this thread of responses, we have been given a lot of relevant information and views and that it’s a truly educational thread on the issue. So much so, in fact, that the thought occurs to me that Haiku Maven’s response just *might* have been a deliberate stir, to air the issue, to get people thinking & responding. It’s not an entirely unknown strategy, and there’s no law against it, after all. 🙂

    – Lorin

  28. Hey, Don, you were pretty hard on “dafne” about her saying “It is in your best interest to try to contact a person about using his/her work,” but why weren’t you as hard on Haiku Maven, who said essentially the same thing: “In this age of global haiku and confusing copyright rules, it is best to err on the side of caution and obtain that permission”?

    And speaking of hard, your “A critical writer has no interest what-so-ever [sic] in contacting anyone regarding permission to use their work,” it would probably be more accurate to say, has NO LEGAL obligation . . .

  29. This is the very problem and, frankly, the core: ” which might have been dafne’s original point, when she says to Paul Miller, ‘It is in your interest to try to contact a person about using his/her work’ (dafne).” ~ lulu

    I fervently argue against the thought “it is in YOUR best interest to try to contact a person about using his/her work” ~ dafne (in regards to critique). A critical writer has no interest what-so-ever in contacting anyone regarding permission to use their work. That clearly impairs the analyst’s ability to reach the public with his/her response to a poet’s work (or composer, author etc.). We cannot not allow a poet (haiku or other) the control of what someone may say in a book review or in regards to individual poems.

    Critiquing is an integral part of the creative arts and it has its place – an important one.

    In the end, this is a fear based problem where the poet is driven to believe that they could be harmed somehow by a poor review. Yes, it hurts the ego: no, no one is harmed beyond that. In fact, folks who read these critiques retain the right to their personal opinions and just might fully disagree with the critic! A critique isn’t finished until the reader has assessed the details of the critique and the poem/book that it addresses. Like haiku, a critique includes the reader to a greater extent, not lesser. The reader might simply end up saying, “I like the poem and the critic is full of beans”. This happens frequently, I imagine. Critics are open to criticism! Keep that on mind. Their reputation is also on the line – not just the poet’s.

    Again, this is fear based thinking. Step away from that kind of mindset and let critics say what they please. Will you aways be happy? No. But the arts has never promised happiness; in fact, most folks in the arts (Beethoven, Mozart, Pollock and on and on and on) suffer. A critique may be part of that process; however, the artist/poet/composer cannot be naive to that fact – and if they are, they are in the wrong business.

    This isn’t a legal problem. This is an emotional one. We’ve all been there. People will disregard our work. It will happen. We will be hurt. Then, the next day … forget about it and create something bigger and better and move forward. That’s what I suggest: this is what I do.

    It isn’t about law: it is about ego.

  30. Okay. I now know that there might be no “legal” obligation to give attribution. It is, as Lorin says, ‘good practice’ or ‘accepted practice’ and as Richard cites, “It is widely regarded as a sign of decency and respect to acknowledge the creator by giving him/her credit for the work.”

    So, on to the question at hand . . . do we know if Peeved was peeved because the work was included without permission, or without attribution?

    Let me just add this: Haiku Maven thinks Peeve was “not being too sensitive” and “right to feel annoyed.” And adds, “In this age of global haiku and confusing copyright rules, it is best to err on the side of caution and obtain that permission. Alas, this particular essayist erred but not on the side of caution,” which might have been dafne’s original point, when she says to Paul Miller, “It is in your interest to try to contact a person about using his/her work.”

  31. Regarding blogs . . .

    WordPress, under Discussion settings, allows me to request emails whenever someone reblogs one of my posts. Then I can see how my post looks at another site. The other person does not have to inform me. Saves time for the actual writing of posts.

    Some people ask readers to not reblog posts, or to request permission first. I’ve said that reblogging or reprinting my posts in another way, with proper credit, is fine.

    I’ve noticed that many readers of blogs are young. Some may be in junior high. So many are learning about how to write with references. The age range on my blogs over the years, from feedback I’ve received, is elementary school (a post used in a home-school class) to over 90 years old. I imagine the age range is large here as well.

    Ellen

  32. To add to my previous muse on citation: imagine a critical essay (or blog commentary) with some number of un-cited haiku within. Unless the essay (blog) author explicitly quotes first-lines and gives the author of each ku within their body text (i.e. partial citation–naming attributes authorship, though lacks publication info), there will be ambiguity as to whose ku belongs to whom. In a worst case scenario, it may appear to a reader that a given ku was written by the essayist; a case then of (likely unintentional) plagiarism.

  33. There is no legal requirement to attribute/cite a source, to my knowledge. Rather it’s an accepted style of “best practice,” and necessary in scholarly publications, professional journals, magazines, etc., that is if one is seeking publication. In principle, the reader should be given every opportunity to check for themselves the accuracy of a quotation. As well, citing the source of the quotation may lead the reader to deeper and more comprehensive insights, as they may choose to read from the more extensive source. A citation also tells the reader what the citing author has been reading — so citation itself spins a web of relationships and so adds richness to ones arguments and speculations.

    A couple of links to muse on:
    http://en.wikipedia.org/wiki/Citation
    “Citation has several important purposes: to uphold intellectual honesty (or avoiding plagiarism),[1] to attribute prior or unoriginal work and ideas to the correct sources, to allow the reader to determine independently whether the referenced material supports the author’s argument in the claimed way, and to help the reader gauge the strength and validity of the material the author has used.”

    Check out too wiki links on “Attribution (copyright)”: “It is widely regarded as a sign of decency and respect to acknowledge the creator by giving him/her credit for the work. Creative Commons licenses are legally binding in most countries and have held up in many court cases.”

    And, “Source (journalism)”: “In journalism Attribution is the identification of the source of reported information. Journalists’ ethical codes normally address the issue of attribution, which is sensitive because in the course of their work journalists may receive information from sources who wish to remain anonymous.”

  34. “In all the discussion of fair use, I am wondering whether the cited “whatever,” whose author thinks he/she is protected under fair use, must, at least, give attribution. Does anyone know?”

    Hi Lulu,
    I don’t know that ‘correctly attributed’ (to the right author/s!) and ‘source/s cited’ is a legal matter under the difficult ‘fair use’ provisions, though it might be a consideration if a case went to court.

    Certainly if one’s work was attributed to someone else (it happens! though rarely enough) or misprinted there is cause for complaint & a request to the editor/ publisher for correction.

    In a book review, including anthologies, it’s clear that the poems used as examples in the review are supposed to be from the book being reviewed. And anyone can check the book to make sure.The book being reviewed is the source, so doesn’t need to be cited.

    In ‘open correspondence’ such as our comments here in response to Haiku Maven (which is a form of publication), we may quote poems, and it comes under ‘fair practice’ if I use a haiku as an example. The general practice in this case, when quoting a single poem, is to give the author’s name & source directly under, eg (taken at random from the 2013 HSA Members Anthology which I received in Friday’s mail)

    cicada skin –
    that dream in which
    she’s still alive

    – Seren Fargo
    – HSA 2013 Member’s Anthology

    In an essay or longer scholarly/teaching/ critical work, ‘good practice’ or ‘accepted practice’ requires that the author cite where the material (the poems being used) were found. This is a matter of professional standards rather than law. Usually this is done in the form of footnotes or endnotes. My copy of Modern Haiku also came recently, so here is the first example in Paul Miller’s essay, ‘Haiku Toolbox – Synesthesia’. (the spacing probably won’t work out here, nor the small, raised number we use for footnotes/ endnotes but o, well …)

    The old rooster crows –
    Out of the mist come the rocks
    and the twisted pine

    O Mabson Southard 1.

    Paul Miller’s source for this poem is given beside 1. under ‘Notes’ after the essay proper. Within the essay there are 26 haiku and there are 26 endnotes to match.

    Lulu, if you mean that the journal/ anthology/ book etc, that the poem is sourced from needs to be notified,consulted or asked permission or give it, then no. Copyright remains with the author. Once published, a poem may be republished within an essay under the ‘fair rights/ fair dealing’ provisions, and professional standards (rather than intellectual property protection) apply.

    The long & the short of it is that once your work is published, it may be republished within an essay or review, and the fact that you hold copyright is acknowledged by attributing the work to you.

    (If a shonky real estate coorporation or a political party or the local porn shop decided to republish a haiku of yours as their slogan without your permission, you may very well have a case to take to court 🙂 )

    I hope this helps a bit.

    – Lorin

  35. 9 Nov 2013

    As someone who has had their haiku published in various outlets without being part of any essay this problem is not so much of a bother or concern. It is can be exciting to be reading an essay and discover that one of my haiku has been used as an example. Although some times I think the example is not quite appropriate but that is another issue.

    The big problem is that a haiku is so small it is very easy to quote the whole thing. And many times the whole haiku needs to be quoted for it the essay to make its point. It is not quite like quoting a stanza from Eliot’s The Lovesong of J. Alfred Prufrock as evidence to support the essay’s theme.

    In the end I take the view that one of my haiku quoted in an essay as another opportunity for others to read it and perhaps enjoy it who probably would not have seen it otherwise.

  36. I am interested in Lorin’s answer to the subject of “attribution.”

    She said (addressing Peeved): “To my knowledge, the only requirement is that the work is correctly attributed to you and the source of your work is cited so that you & others may check that your work has been correctly presented and attributed.

    In all the discussion of fair use, I am wondering whether the cited “whatever,” whose author thinks he/she is protected under fair use, must, at least, give attribution. Does anyone know?

    And in light of that, I am curious as to whether Peeved got cited with or without attribution.

  37. To sensitive.

    First of all, you cannot claim ownership of a kigo phrase, or
    reference, so, now you may own possibly half of your poem.
    For educational purposes, I thought you can quote anything?
    If you are giving a reading, performance, etc., and a
    critic quotes you within a poor review, can you do anything
    about it? To my knowledge, anything offered to the public
    is open to commentary.

    Berlin Wall
    a smooth stone
    in my pocket

    THN

    Within the above example, what do i own? Possibly the stone!
    Maybe, but it was probably procured from a neighbor’s driveway.

    Personally, i have no idea how many poems of mine that have
    been borrowed, or translated withoy knowledge. And i am
    always surprised what pops up during a quick Google.

  38. What a fascinating and informative debate. I’m in the essayist’s camp and particularly support Paul Miller’s comment about how asking for permission can instigate unnecessary dialogue. For similar reasons that’s why poetry competitions tend to state that judges will not enter into correspondence.

    Okay, we enter competitions voluntarily, so the issue is slightly different. But what seems to be at the (unstated) root of this initial query is that we’re happy when our work is quoted and championed (glowing reviews etc) but can be ‘peeved’ if the work is negatively/constructively criticised.

    But handling criticism is part of the writer’s path. We have to learn to separate the writer from the writing, understand that ‘we’ are not being criticised. The work is.

  39. ” … but what happens when the essay does not discuss or critique the poems that appear within it?” – John

    Hi John,
    For instance, if the poems are given as examples within an essay or a review, though not discussed or critiqued individually?

    As far as I know, the same applies: as long as the poems have been previously published, are attributed to the correct authors and the essay writer’s/ reviewer’s sources (where they found the poems published) is cited, no permission or notification is required.

    In some cases, the authors of the poems are notified as a courtesy, but a reviewer or essay writer does not necessarily have an address via which to contact people and cannot reasonably be expected to do that kind of detective work.

    – Lorin

  40. ” Dear Haiku Maven, One of my haiku has been republished in an essay. The author of the essay did not seek my permission to use it or even bother to notify me that they were planning on using it for such a purpose. Am I being too sensitive or am I right to feel annoyed? Peeved”

    Dear Peeved,
    You have every right to feel peeved, annoyed, angry, delighted, elated, surprised, nonplussed, murderous or any other emotion, and it’s normal for poets to be sensitive. 🙂 There is no right or wrong about how we might feel, and feelings can change.

    As others have stated, your permission is required in some cases of republication, such as in anthologies or other collections. (And your permission is definitely required before anyone may republish or circulate in any way your *unpublished* intellectual property, or, in the case of your being deceased, the permission of whomever is the legal heir to your unpublished intellectual property.)

    Also, as others have noted in detail, it’s common & normal practice for reviewers and essayists to cite examples of anyone’s *published* work to illustrate their points and as far as I know there’s no requirement to ask permission for this or to notify you. (See others’ posts regarding ‘fair use’ )To my knowledge, the only requirement is that the work is correctly attributed to you and the source of your work is cited so that you & others may check that your work has been correctly presented and attributed.

    If an essay/review writer *does* notify you, it’s because they’re extending a courtesy and not because they should.

    – Lorin

  41. Hi John,

    By the way, my first and longer, detailed comment to this discussion of “fair use” is “still awaiting moderation” I’m not sure anyone can see it yet. Let’s hope it appears soon. To your question,

    “[W]hat happens when the essay does not discuss or critique the poems that appear within it?”

    I’m not a lawyer, so please bear this in mind. As I understand it, your question goes to the issue of determining the meaning and intent of a “transformative work.” In this case a “transformative work of criticism.” An anthology of haiku is not considered transformative, so permissions need to be sought, particularly for for-profit anthologies; “Haiku in English” (Norton, 2013) is a good example. Determining the precise nature of “transformative” is not easy. For instance, the courts have allowed several chapters of books to be copied (without further direct comment on them) for educational use, by non-profit presses (including professors putting together sourcebooks). This would likely be more contested, if published by a for-profit press, especially a larger, higher-profit, substantive press. (Profiting via a copied work, in a derivative work, plays a role in a fair use determination, and educational use is related to “societal good” and needs, so this topic can likewise become complex, for fair use). This paper addresses some of these issues:

    “Fair Use in US Scholarly Publishing” by Harold Orlans (“Learned Publishing 12″, 1999. pp.235-244):
    http://danm.ucsc.edu/~abtollef/Physical_Poetry/fair%20use.pdf

    It’s my understanding that criticism and non-profit educational use of copied materials are in the strongest category of fair use (that is, allowing the reprinting), as determined by actual cases. Actual cases are necessary, because fair use is not precise; a given case arises in count because fair use is contested; studying the decision rendered is, the only sure way to interpret the law and induce the decision, in a new context (though cases are also, challenged, overturned and multiple decisions in different cases may seem or be paradoxical):
    ——
    http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
    “So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.”
    ——
    To get to your question, my first thought would be that if the essay is a work of transformative criticism on the whole, it is highly protected — the question of spurious or unnecessary copying of a work, within, would be a subjective determination. If we are discussing haiku (not a longer work quoted in its entirety), and the essay appears in a low/non-profit context, like a haiku journal, blog, or non-commercial website, or book, I muse that: 1) You would need to legally contest the issue of fair use, because 2) a judge would need to make a specific determination, and 3) the case has a good chance of being thrown out of court.

    Musing on your question, in principle, yes there needs to be a relationship between the criticism (critical essay) and the quoted works. But this relationship may be general, generic, broad. There is no need to comment specifically on each work quoted — especially with haiku which are so short, it may take a group of them to provide evidence, concerning a critical point. Where there may be an issue say, having to do with quantity — where for instance 50 haiku are quoted, without any further comment on them — this act seems non-transformative (a simple anthologization). It is up to the judge, and the defense (author) in court to provide a rationale, if it comes to that.

    Here are two links on “Transformation law” which might be helpful:

    Transformation (law)
    http://en.wikipedia.org/wiki/Transformation_(law)

    10. Transformative Use and Quotation
    Transformative use and fair use:
    http://www.alrc.gov.au/publications/10-transformative-use-and-quotation/transformative-use-and-fair-use

    In the news:
    EFF Urges Court to Protect Transformative Uses and Permit News Search Engine
    https://www.eff.org/press/releases/eff-urges-court-protect-transformative-uses-and-permit-news-search-engine

    Fair use and blogging (Q&A FAC)
    https://www.eff.org/issues/bloggers/legal/liability/IP

    Citation and attribution.
    What both authors and critics of haiku works are hopefully aware of is the need for citation and attribution, in quotation of the (copied) work, providing readers/viewers/users information regarding the source publication. (This too can get sticky, when a haiku appears in various places on the web, in informal “comments” sections, etc.)

  42. Over protection of IP is a more serious problem in our society than under-protection. It is important to recall that all property rights — even real property rights — are subject to limits (we all agree the fire department may come upon our land to put out our neighbor’s fire). The problem of over protection is more acute in the patent world than in the literary world — non-practicing patent holders are wantonly stifling innovation by enforcing unused patents against potential innovators — but there is significant misunderstanding among creators and users of creative IP that can be detrimental.

    The point of copyright protection is not to reward the author — that is an ancillary benefit. The point is to maximize societal welfare by incentivizing creativity and its attendant benefits. Doing so requires a balance between the benefits to the author, and benefits to the society affording the protection (note: society can afford no protection whatsoever if it wants; here in America the Constitution merely empowers Congress to offer copyright protection, at a level the people’s representatives deem appropriate).

    The net societal benefits are reduced by over protection. Without movie reviews, critiques, works influenced by the protected work, etc. — the benefits of protection of the IP are not maximized. Movie goers are denied critical information, markets for works are not created, new artists are not influenced, and education is stifled. The object of copyright is to provide the MINIMUM protection necessary to incentivize creation, and then allow society the fullest possible use and enjoyment of the new work. Any additional protection, by definition, harms the society that has endowed the work with a special right.

    So whether the author of a given work is peeved is not the point at all — the author may be infuriated or flattered, it does not matter. The question is whether society is better off in the long run if it chooses to require or excuse the need for an author’s reprint right in a critical essay. Viewed this way (properly) the answer is self-evident.

  43. While deciding individual cases can sometimes get messy, the basic idea/intent of fair use is straightforward and essential.

  44. To JM’s question: The intent of essays is discussion/critique, which would fall under fair use however little or much is specifically said about the examples given.

  45. I think Richard and Michael (and others) have made excellent points supported by documentation. A book review, for example, is understood to be a welcomed, dandy item. And, naturally, an author would like to have a great review. That makes sense to me. However, it does happened that columnist doesn’t review a book in a very positive light. There is no difference, in my mind, in reviewing a poem/haiku. First, anyone should be able to review the poem: second, the review might well be negative; but then, it might be positive. Some readers will like what you have written; others won’t. 50% of the country always votes against the person who is elected to be President, too. That’s how it works, macro and micro.

    The poet may or may not learn from the review. I don’t think that matters. If the poet believes in his or her poem, then that’s enough. Let history sort it out. Beethoven made it through controversy. I think we can as well! By the way, it clearly didn’t hold Beethoven back!!!

    Now, if someone is posting your work as though it were theirs and/or if someone is making money off of your poem(s), these are different problems = law must come to the rescue!

  46. There are some fascinating replies already posted on this topic, and I for one have learned quite a bit already from reading through them.

    I agree that there is much to be gained and learned from a well written essay or critique, but what happens when the essay does not discuss or critique the poems that appear within it?

  47. Haiku are short enough that it’s hardly possible to even refer to them without quoting the entire thing. As has been mentioned, if one’s poem has been published, then it’s up for possible discussion. How, then, can you discuss a poem so short as haiku? Fair-use laws tend to break down with poems as short as haiku and I think it usually IS appropriate to quote poems in reviews and critique articles without getting permission. In contrast, permission is needed if one wants to publish a haiku or senryu in an anthology AS a poem, but not necessarily in an evaluative essay if one wants to talk ABOUT the poem. One reason for copyright law is to protect financial interests, so obviously that isn’t applicable here (what income is going to be lost by an author by having his or her haiku commented on in an essay?). Another reason for copyright law is to protect intellectual property, but here is where fair-use law doesn’t adequately account for the brevity of the work. So I don’t at all think a person should feel peeved if his or her poem is quoted and discussed in an evaluative essay. Again, that context is completely different from having one’s poem published in an anthology, where permission definitely should be sought.

    I would also say that Paul’s use of the term “censorship” is perfectly appropriate. If a poet is asked permission to quote his or her poem in a critical article, and declines, then that poet has indeed censored what could have been said about it — good or bad. Poetry is a conversation, and it’s vital for the poetry art that it have back-and-forth discussion. To inhibit rational and polite discussion is indeed censorship. Again, the issue here, as I’ve said many times in the past, is that fair-use law has never been written well enough to account for short poetry.

    Let me illustrate. Aram Saroyan has a famous and controversial one-word poem, “lighght” — that’s the entire poem, and that’s how it’s spelled. Should I have asked permission to have quoted it in this paragraph? Of course not. Yet I’ve quoted the entire poem, and thus have run foul of the fair-use laws in Dafne’s link and elsewhere. Yet the Wikipedia page on Saroyan quotes the entire poem, and so do countless other sites online — the ones I’ve seen being locations that talk *about* the poem, please note, which I would argue IS fair use, despite quoting the entire poem. I would be shocked if they got permission for that. I would argue that haiku, too, is short enough that permission is not needed for most evaluative writing that talks about poems as short as haiku.

    Please see the following two links:

    http://blogs.law.harvard.edu/ethicalesq/haiku-and-the-fair-use-doctrine/

    http://www.plagiarismtoday.com/2006/02/16/fair-use-haiku-and-you/

    The second of these two links says the following, under the heading “Context Is King”:

    “Since the fair use doctrine is designed to weigh the needs of the public versus the needs of the copyright holder, that’s what one must do when deciding whether something is fair use or not. One must carefully balance what the creator is losing (or possibly gaining) versus how much society is benefiting.”

    I would argue that society is gaining far more than any haiku author is losing (if anything at all) if his or her haiku is quoted in full in an evaluative article. In fact, I would argue that the haiku author is GAINING something rather than losing anything because of the evaluative commentary. If the poem is praised, the author certainly gains; if the poem is critiqued, the author could learn something. More importantly, it’s society as a whole that gains far more. I believe it’s perfectly appropriate and necessary for haiku to be quoted in full in most evaluative articles without seeking the author’s permission, and that fair-use laws need to be adapted to better accommodate references to poems as short as haiku. No one should be peeved at all to have their haiku quoted in an evaluative essay. If a person doesn’t like what is said about the poem, he or she is free to be peeved about that, but that is completely separate from being peeved about being quoted without permission.

  48. Don Baird puts the mater succinctly.

    The matter of free speech in criticism is part of the beauty of enlightened democracy.

    I hope you agree, upon reflection, “dafine.”

    Thanks for checking,
    Richard Gilbert

  49. I particularly object with respect to your written statement: “It is in your interest to try to contact a person about using his/her work.”

    Postscript from the Harvard Law blog post:
    http://blogs.law.harvard.edu/ethicalesq/haiku-and-the-fair-use-doctrine/

    “Postscript. The following excerpt from the article Scholarly Fair Use: Chaotic and Shrinking, by Harold Orlans (in Change, Nov. 1999), stresses the importance of asserting the right of fair use for scholarship:

    The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly…. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author’s defense.(12)

    Copyright holders “have no better leg up on fair use judgments than authors or editors,” a university press permissions editor writes; “…they are more likely to attempt to block usage that is in fact fair use.” Contributors to University of California Press journals are advised, “If, in light of these guidelines, you are confident that your proposed use of an excerpt is fair use, it is best not to ask for permission. Scholars should exercise the right of fair use when it applies; otherwise it could be eroded. Also, by asking…you would be tacitly admitting that permission is needed, thus undermining your claim that the fair use exception applies.

    Best interests at heart,
    Richard Gilbert

  50. “Uninformed”? I don’t think so — apparently you did not link to the URL cited. If you know that it is okay to cite another’s work without any obligation to contact the author, or give proper attribution, please let us know.

    “presenting hooey which is deleterious to free speech.” Again, let us know

    “Let’s stop with the fear mongering and hurt feelings.” It is indeed fear mongering to talk about “censorship” as a substitue for attribution.

    in what context.

  51. This is rather simple: using material in critical papers has always been protected in court; and, should be. Beyond law however, if a poet/author doesn’t want their work critiqued or included in critical papers, then do not post them publicly. This is simple: become public, be judged by the public. Easy enough.

    Controversy regarding what we write is great! It makes our work and poetry all the more important!

  52. As a note, “dafne” is uninformed on this matter, and presenting hooey which is deleterious to free speech. Please study the matter carefully for yourself. This is not a matter to be taken lightly or by hearsay. I would urge readers of these comments to read through the research studies and scholarly journal articles. This is a matter that is crucial to the progressive spirit of our poetic community, in terms of free speech and publishing.

    Let’s stop with the fear mongering and hurt feelings.

    And let’s freely criticize, to benefit, without apology, and with pride,
    Richard Gilbert

  53. Hello mavens, editors, poets, lovers of freedom, and creators of unique articulations. There are some legal answers to your queries. Let’s first be objective, and allow for not the particular instance only, but the principle of “fair use.” Fair enough?

    Permission should not be requested for any use of what is legally considered “a transformative work.” This includes works of criticism, comedy (sarcasm, ironic commentary), and other uses, as articulated in the “fair use” framework.

    http://en.wikipedia.org/wiki/Fair_use
    http://www.copyright.gov/fls/fl102.html

    In fact, if permission is sought, it may be deleterious to the “fair use” provision itself, and the author of the transformative work in question.

    Please read:
    Haiku and the Fair Use Doctrine, January 16, 2004, by David Giacalone
    http://blogs.law.harvard.edu/ethicalesq/haiku-and-the-fair-use-doctrine/

    for a study of haiku, in this context. One of the points made in the above research is that unlike longer poems, for a given haiku to be evaluated critically, the entirety of the poem (being so brief) must be quoted, in order to convey the meaning to a reader.

    While we would normally not quote the entirety of Dante’s “Inferno” to make a critical point, we do need to quote an entire haiku to enable the reader to ascertain the critical insight, concerning the work in question.

    To further investigate the larger issues of publication, please consider this article:

    “Fair Use in US Scholarly Publishing” by Harold Orlans (“Learned Publishing 12”, 1999. pp.235-244):
    http://danm.ucsc.edu/~abtollef/Physical_Poetry/fair%20use.pdf

    It is vitally important, and I would argue crucial, to stand firm on the issue of transformative criticism, which allows the full quotation of any published haiku, without permission. The issue of positive or negative critique is beside the point and moot.

    For the legal definition of “transformative work” one should consult the “fair use” dicta (which aren’t really that specific). Nonetheless, one can determine that an anthology which collects haiku, without critical review of each poem (that is, critical commentary), would likely require permissions — with the caveat that if the work is for educational use and published by a small press and/or non-profit press, the courts generally favor “fair use” in this case as well — if I read the pragmatics correctly.

    If the haiku appears in an essay (that is, criticism), fair use covers the full quotation, of haiku works by the author of that critical review.

    In my book, Disjunctive Dragonfly, I quoted 275 haiku in order to demonstrate 24 disjunctive literary-linguistic categories (or modes or techniques) of excellence in the haiku genre, by largely contemporary authors. This work would not be publishable if I were to seek permissions for all the haiku. (I could go into the reasons, in terms of timeframe, necessary received communications across the world, financial obligations, etc. –I think you can imagine it). I would argue that 20-30 haiku per tecnigue would provide the best evidential support. So I would suggest a maximum of 30 x 24 haiku, in the event. I present fewer examples than my preferred. And who is to say how many haiku can be quoted? The law is unspecific–it’s a case-by-case review. So it’s up to the scholar to present their necessity. Profit also plays a role. In cases which it’s clear the use is largely educational (small press/non-profit press, little or not profit or indeed a loss), the courts have taken a favorable stance in this regard.

    Intellectual freedom concerning transformative works of criticism is directly related to the principle of quotation without permission, by reviewers, essayists and critics. I would urge everyone to be sensitive to this issue and to be generous to those among us who wish to freely comment on haiku –whatever their bent or persuasion.

    I hope the links provided meet with careful scrutiny. It’s an important issue for our tribe.

    Clarity and consensus is valuable here,
    Richard Gilbert

  54. First things first, Paul. You need to stay away from the word “censorship.” It is not to be used lightly (as I think you have). Here are a few definitions:

    1. The practice of officially examining books, movies, etc., and suppressing unacceptable parts.
    2. The use of the state and other legal or official means to restrict speech.
    3.The prevention of publication, transmission, or exhibition of material considered undesirable for the general public to possess or be exposed to.

    Second. It is in your interest to try to contact a person about using his/her work. Here is a link that you might want to consult: http://www.copyright.gov/help/faq/faq-fairuse.html. And remember, if you are using a work that you picked up from a journal, the journal is protected by copyright. Plus, there must be new laws popping up like weeds for work found on social media sites, etc.

    Bottom line: Authors own their work, officially copyrighted or not.

    Re: “Asking may severely limit my essay’s choices and possible arguments.” Too bad.

    Re: “And asking permission of poets whose work I only plan to say nice things about seems odd.” A non sequitur at the least, poppycock at the most.

    Re: “I suggest that if we are going to put our poems out for publication (“public” ation [sic]) we should be aware that they may be judged publically: both good or bad.” And you, dear Paul, should be aware of any legal consequences.

    Re: “Hmmm. should I have asked Haiku Maven for permission to chime in? Not even worth your adding that.

    Oh, yeah, “Peeved” has the right to be!

  55. It is possible this relates to one of my essays; and is an understandable feeling. I myself had some poems included in an essay recently without my knowledge. However, the seeking of permission opens all kinds of awkward doors—especially if we are talking about critical writing. If I am writing an essay and want to be critical of a poem, or tack a poet is taking, or even interpret the poem in a manner the poet doesn’t agree with, how can I ask permission knowing that permission will possibly be denied? At this point do I go ahead (which makes the asking pointless) or pull the poem (which is censorship)? Asking may severely limit my essay’s choices and possible arguments. And asking permission of poets whose work I only plan to say nice things about seems odd. While I appreciate that perhaps a “heads up” might have been welcome, that also opens the door to a dialogue which may lead to possible censorship. I suggest that if we are going to put our poems out for publication (“public” ation) we should be aware that they may be judged publically: both good or bad. Hmmm. should I have asked Haiku Maven for permission to chime in?

Comments are closed.

Back To Top