Haiku, Criticism and Fair Use PDF Print E-mail

Is Haiku a Pirate Poetry That Can't Be Critiqued?
by Robert D. Wilson
 

Freedom of speech is always under attack
by Fascist mentality, which exists in all parts
of the world, unfortunately.

                                                                 -- Lawrence Ferlinghetti
 

The First Amendment of the U.S. Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
 
This amendment’s the heart and breath of all other amendments in the U.S. Constitution. Without it, America wouldn’t be the free though imperfect country that it is. When the voices of opposition are stifled, education seizes to exist, and control of the land falls into the hands of politicians, influenced and funded by greedy corporations who control the media, oil prices, and much more.

It took centuries for the U.S. Supreme Court to interpret the Constitution so that it stood for the rights of all American inhabitants, regardless of race, religion, creed, etc. and the interpretations aren’t finished. Like the zoka, America’s freedoms are continually evolving.

One freedom, guaranteed by the Constitutions First Amendment is the freedom that spearheaded the formation of what Anglo-Americans called The Supreme Law of the Land: The U.S. Constitution:
 
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
 
As a law, it has been misinterpreted by well-meaning attorneys, self-serving corporations, egotists, et al.
 
I cite for you an example of the misuse and misinterpretation of the First Amendment and Fair Use Copyright Law, it protects. I cite it because it happened to my friends and myself personally. Such a fragrant misuse of citing laws as a non-attorney to on-line site providers, who lack the funding to hire a copyright attorney, research the validity of accusations being made, sets a dangerous precedent, as it goes counter to the freedoms guaranteed by the above mentioned First Amendment. The negation of the rights guaranteed in the Fair Rights provision 107 in the U.S. Copyright Law, without being interpreted as a whole, would bring about an end to book reviews, critiques, and make a mockery of any high or university textbook that sought to discuss the pros and cons of haiku. Haiku, then, would be free of criticism, and allowed to evolve into whatever it wanted to evolve into without scholarly clarification and definition.
 
The web provider for The Art of Haiku, the Internet airspace rented by Ted van Zutphen and Svetlana Marisova, Go Daddy, shut The Art of Haiku down, for allowing Simply Haiku, who Marisova and van Zutphen provide free space to, to publish the article To Kigo or Not to Kigo by Robert D. Wilson. Their reasoning? A complaint was filed by an American poet, who objected to the inclusion of her haiku-like poem “drive-in movie” in the aforementioned article:
 
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Origa
 
When we were notified by Svetlana and Ted that Origa demanded that we remove her haiku from my article, it came as a shock because the poet did not contact Sasa nor I directly. I contacted the irate poet and asked her to please leave Ted and Svetlana alone, who had nothing to do with the article, and were only providing Simply Haiku the space to publish Simply Haiku, co-owned by myself and Sasa Vazic.
 
The following e-mail, written to Svetlana and Ted regarding my paper, To Kigo or Not to Kigo, by Origa, slanders and accuses me of calling her a worthless poet, which I never did:

"The article by RW is very superficial, eclectic, chaotic, contradictory, and confusing, probably because the author doesn't even have a college education, didn't really study haiku literature in depth but rather forayed the surface of some articles ... needless to say, he is not a haiku scholar like those authors whom he criticizes in such a vulgar manner. How regretful that you as a web master, and a novice to haiku, think that it is an appropriate way of a haiku discussion. Really regretful. And to call this haiku ‘subjective, object- biased, lack the aesthetic tools to adequately hint at or suggest, ... void of memorability, and ... divorced from the zoka’ -- is a total nonsense, as you, or anyone else, can easily see. RW's conclusion is absurd and stupid attack on a real good haiku which he failed to understand, and his attempt to present me as a worthless haiku poet (his typical way to slander his anemies).”
 
NOTE: The misspellings are her own. RW is Robert D. Wilson (myself, who does not go by RW. My pen name is my name.) Even more tragic than the slander, she called Ted van Zutphen and Svetlana Marisova new to haiku and, therefore, by implication, not qualified to judge what was appropriate for discussions of haiku.
 
Svetlana Marisova is one of, if not the finest haiku poet of the 21st century. (See the full feature article about Ms. Marisova in this issue of Simply Haiku.) Ted van Zutphen also is one of the 21st century’s better haiku poets and was recently appointed by Sasa and myself as our journal’s Haiga Editor. Origa didn’t do her homework when talking about people that anger her, and didn’t practice what she preaches regarding the ethics of dealing with people who disagree with her.
 
Here in full is what Origa objected to:
 
"The majority of haiku in today’s journals, blogs, and e-zines are primarily Imagist-centric, short free verse poems that are subjective, object-biased, lack the aesthetic tools to adequately hint at or suggest, are void of memorability, and are divorced from the zoka Basho said was essential to the writing of haiku. Read a haiku in one of the journals, then read a haiku penned by Basho. Which one do you prefer?
 
Here are two haiku I gleaned at random. Read a haiku by Basho, then a haiku written today:
 
twilight dawn
a whitefish, with an inch
of whiteness
 
Matsuo Basho
Translated by Makoto Ueda
Basho and His Interpreters
 
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Origa
The Robert Spiess Memorial
2010 Haiku Awards sponsored by
Modern Haiku

Which haiku above do you prefer and why?”

“. . . his [RW’s] attempt to present me as a worthless haiku poet (his typical way to slander his anemies).”   Origa
 
Did I call her a worthless poet? How is this falsehood my typical way of slandering enemies and what qualifies her to make such an accusation?
 
Origa wrote to two people who have never met me in person:
 
“. . . probably because the author doesn't even have a college education, didn't really study haiku literature in depth but rather forayed the surface of some articles ... needless to say, he is not a haiku scholar like those authors whom he criticizes in such a vulgar manner.”
 
To quote my late father, Robert Dean Wilson, an early pioneer of Americanized haiku, “This is like the pot calling the kettle black.”
 
I informed Origa that The Art of Haiku is not our employer and is not responsible for what we print, and asked her to please talk to us directly. Instead, she continued the harassing notes to Ted, and Svetlana, who was suffering from terminal brain cancer, (Svetlana has since passed away), and succeeded in temporarily shutting down the entire Art of Haiku website, by telling Big Daddy, that The Art of Haiku is responsible for all content, including Simply Haiku, a respected international literary journal read by 12,000 world-wide, misquoting copyright law, and the subsequent Fair Use Law contained therein. Anyone, including myself, can cite law, but to interpret it correctly takes a quality legal education, years of practice in his or her chosen specialty. Said interpretations by some of the finest attorneys in the land, are subject to reinterpretation via higher courts including the U.S. Supreme Court.
 
If one cannot, as Origa claims, use an entire haiku (in full) written by a poet in any article without their express permission, has Simply Haiku broken the Fair Use Copyright Law by citing her poem and asking “which poem do you prefer?” Our staff works for no pay and Simply Haiku earns no income. The article and poem in question is a critique of modern haiku. One well-known haiku poet wrote a so-called haiku that consisted of one word: “Tundra.” Does that mean it cannot be quoted in a review and, therefore, becomes exempt from literary criticism? If I mentioned only two lines of Origa’s haiku-like poem:
 
"the car surrounded
by fireflies"
 
... would it be able to be critiqued or used academically in an article? The poet’s interpretation of the Fair Use Copyright Law makes a mockery of literary criticism, leaving such poems exempt from critique thus imposing a censure similar to that imposed on writers and artists living in countries under a dictatorship. If I were to write this poet and ask her for permission to critique her poem, she, most likely, would refuse me permission. I find this ironic, because Origa is a nationalized citizen born and raised in Russia, a country during the time she lived there did not allow freedom of the press.
 
Wrote attorney and haiku poet, David Giacalone, in his article: Haiku and the Fair Use Doctrine, in The Harvard Law Review/ January 16, 2004:
 
“Clearly, an entire haiku or a fragment thereof can be copied under the Fair Use defense, when the purpose is appropriate. Size is not a barrier. Indeed, the inherent brevity of haiku in many ways makes it unseverable for purposes of criticism and study. For example, each haiku in a volume of an author’s collected work may be separately copyrighted, but a critic could not adequately opine on the overall quality of the collection, or on changes in the writer’s style or focus, without reproducing one or more entire haiku, despite each being an entire “work”. This concept seems so elemental, that it is difficult to imagine that one knowledgeable commentator on scholarly use of the Fair Use Doctrine could assert: “The fair use of anything from a 17-syllable Japanese haiku is hotly debated by copyright lawyers.” (Harold Orlans, in Chaotic and Shrinking, from Change, Nov. 1999)

The arguments for quoting entire haiku in an essay or article about deja-ku are almost too obvious to even mention here. The similarity of the actual words used in a haiku poem, their placement, and their close resemblance to other haiku, are the very essence of the study being made. To not quote the entire haiku would often frustrate the purposes of the essayist and the reader. To paraphrase Judge Posner in Chicago Bd. Education v. Substance, Inc, you are entitled to criticize/study the haiku and to do that effectively you have to be able to quote from them or use the entire poem. In addition, as with the problem in the Substance Case of misleading or slanting the analysis by picking only some exam questions or certain exams and not others, it might often be unfair to the haiku writer, whose work is being studied or compared, to only quote part of a haiku and not the whole poem.
 
One final issue:  Unpublished work receives more protection under the copyright laws than does published work. That’s because the holder of a copyright should normally decide whether or not to publish a work. Nonetheless, when courts started refusing to uphold the Fair Use defense whenever the underlying work was unpublished, Congress amended the Act to clarify that being unpublished was only one factor in the equation.
 
Conclusion:
 
There is no blanket rule against quoting part or all of a haiku. CONTEXT is everything. The Fair Use Doctrine can give significant protection to scholarship or criticism that requires the use of all or a significant portion of an individual haiku in order to effectively accomplish its Sec. 107 purposes.”
 
Added Attorney David in a postscript to his Harvard Review article:

“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.’
 
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.”
 
[This essay presents the personal opinion of its author concerning the applicability of the Fair Use Doctrine to the copying for scholarship or literary criticism of copyrighted haiku poetry.
It is not, and is not intended to be, legal advice. Although the author is a retired attorney, he has never practiced copyright or intellectual property law.]
 
In an article entitled, Fair Use in U.S. scholarly publishing, Harold Orlans wrote: “Many authorities and publishers affirm that common guidelines on scholarly fair use, especially quantitative guidelines, cannot be prepared because none are found in the law. EACH CASE MUST BE JUDGED ON IT'S MERIT WITH ALL FOUR FACTORS IN SECTION 107 CONSIDERED; each publisher must set its own permission policies suited to its distinctive publications, audience, and operating conditions. That, spokesmen explain, is why neither the publishers’ nor the university presses’ association has issued fair use guidelines for their members.”

Here is a copy of the law in its entirety. Remember as you read it what Harold Orlans wrote :
"EACH CASE MUST BE JUDGED ON ITS MERIT WITH ALL FOUR FACTORS IN SECTION 107 CONSIDERED . . ."

"§ 107. Limitations on exclusive rights: Fair use40
 
Notwithstanding the provisions of sections 106 and 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; and
 
(4) 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."
 

At the conclusion of his paper, Orlans writes: “Above all, scholarly fair use should be defended on its merit. Without it, scholarship grows slovenly, and knowledge, supposedly essential to the economy and society, uncertain. The defense of scholarly fair use is the defense of something more important and enduring than marginal permission payments.”
 
A poet can't live in a glass house, and expect only positive praise. Reality reminds us that we will be critiqued for our work. That is the nature of the beast. Artists of every medium receive criticism. Picasso did, Allen Ginsberg did, as have every other major artist.
 

A Side Note:
 
An excerpt from MATTEL INC. v WALKING MOUNTAIN (9th Cir. Ct. App., Dkt. 01-56695, 12-29-03)
 
[1] Consistent with its policy goals, however, the Copyright Act recognizes certain statutory exceptions to protections on copyrights. At its core, the Act seeks to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575-76 (1994). Recognizing that science and art generally rely on works that came before them and rarely spring forth in a vacuum, the Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. See id. at 575-77 (“[F]ew, if any, things . . . are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow . . .” (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436)). The fair use exception excludes from copyright restrictions certain works, such as those that criticize and comment on another work. 17 U.S.C. ? 107. See also Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir.) (holding that fair use “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster”), cert. dismissed, 521 U.S. 1146 (1997).
 

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A special thank you to Attorney David Giacalone for allowing me to quote from his article printed in the prestigious Harvard Law Review.

 
The matters referred to in this link make interesting reading http://en.wikipedia.org/wiki/Godaddy#Controversies