Then I’d used twenty-five words from an Agatha Christie novel — only twenty-five words, but it’s Hercule Poirot and one of his memorable pronouncements on facts and slips... And forty-three words from a philosophy text — but do you need to get permission from the original author, the translator, or the journal in which it was published (or all three?). Then there’s that story within the story that I’ve rewritten from memory from a 1960s Reader’s Digest Omnibus which turns out to be an abridgment of a children’s book by James Thurber... And just tracking down who holds the rights for a particular song can cost me $50 per song if I go through AMCOSS, so I join a Lou Reed mailing-list on the internet to see if anyone out there knows and can tell me for free, and I get dozens of daily emails from fans all across North America listing every song in the order he sang them for every concert on his tour, and learn to refer to him as “Lou” or “The Man” like everyone else, and eventually after a few wild goose chases I find out that “Pale Blue Eyes” is administered by EMI.
(Um. It was EMI who sued my publisher.)
You see, all this time while I’m busily scratching around after these motes, I guess what I’m desperately trying to ignore are a few rather large and uncomfortable logs.
The first one is this: I’ve made seven references to particular recordings of songs in my book — albeit brief, some only a few words, but ask any music publishing company and they will act totally horrified and aghast at the idea that you could use any word or phrase from a song without permission. Permission fees for songs are determined by the company, but a fee of $150-$250 is standard. Add that up, and these seven tiny references (and oh how merrily I knitted them in, in the first place) could end up as a bill for perhaps thousands of dollars...
And then the very nice young woman from Marie Claire in England (“Oh your book sounds absolutely wonderful!”): once I explain (on an expensive telephone call late at night) that from the article syndicated to Cosmopolitan four years ago, I’m only using about eighty words that aren’t actually on the public record, she says, “Oh, in that case it will just be a token fee of fifty pounds.”
And so (fortunately) it’s around about this time that I pause before I post out my two dozen letters seeking permissions...
What if even a proportion of these want to charge “token fees”?
The fact is, you don’t earn much money from literary fiction in Australia — especially a book of experimental stories and novellas by an unknown author.
Fees like this would not only put me in debt for the next few years, they would make it virtually impossible for me to keep doing what I do. In a very real way they threaten my next book, which I’ve already spent a year and a half researching, and they threaten everything I’ve spent twelve years learning how to do.
So there was this minor practical problem that I had to deal with. And then the other log that I could see (in my fitful nightmare-filled sleep, especially if I had to set the alarm to ring Lou in New York at some ungodly hour) — sweeping down the river towards me... Well, there were two of them, kind of tied together. And sitting up there on the first, with an expression on his face that I couldn’t quite make out, was the ghost of J.M. Barrie.
In a novella which is about a third of the book, I’ve used the occasional brief quote from Peter Pan as a structuring principle — little typographical stepping stones or punctuation points, if you like. Except that my Peta is a girl (P-e-t-a); which means that even when the quotes stay the same, with a girl-Peta and in the context of a story exploring being childless (either by choice or otherwise) and cultural notions of femininity and adulthood, they take on quite different meanings from the original. For instance:
‘If you find yourselves mothers,’ Peta said darkly, ‘I hope you will like it.’ The awful cynicism of this made an uncomfortable impression, and most of them began to look rather doubtful.
And there are other times where I’ve strategically mis-quoted.
Every time a woman says ‘I don’t believe in babies’ there’s a baby somewhere who falls down dead.
The quotes are something like less than 400 words out of 20,000; and I actually feel that Mr Barrie himself would approve, but he’s dead and it would be some unknown person who administers the estate making the decision. What if they, just personally, didn’t happen to like what I was doing?
If they refused (and a copyright holder is not required to give any reason for a refusal), there goes a third of my book, and a year’s work.
And on the other log: a whole heap of people from Fatal Attraction, barrelling down on me for a story in which I’ve not just quoted bits of dialogue from the film, but have also appropriated the main characters and actors and sent them off on a mission around the back streets of Newtown in Sydney ...
But how can I possibly ask James Dearden and Adrian Lyne for permission to critique their film in the way I have in this story? (It’s not exactly a flattering view.)
So: it was around about this point that some of the people I was seeking advice from (such as the Australian Society of Authors — who did prove to be very helpful in the end) began to see that maybe I wasn’t just a criminal-minded anarchist post-modernist who wanted to be able to rip off other people’s words without paying for them... That maybe my rights as a writer also needed defending here. And that this (like most things in life) isn’t just a simple black and white copyright issue, but is also about things like free speech.
I can’t keep writing this way if I have to pay everybody a tithe. (And I’m not just talking about lots of little sums: Macmillan in the UK wanted $500 for every print run for a few brief quotes and paraphrases from a 1970s book about faeries; and EMI originally asked for $830 for eleven words from “Pale Blue Eyes”).
It’s a bit like when someone tells you an anecdote and you say, “Hm, can I use that in my next book?” and they say, “Do I get a royalty?”
It just can’t work that way — if I paid everyone who’s ever contributed something to my work, they’d all end up getting about half a cent each and I’d end up with nothing to pay my rent with and the added burden of knowing that every word I write might end up costing me more money than it’s ever likely to make for me.
And I can’t keep writing this way if anyone who doesn’t like what I’ve said or implied about their work gets the right to refuse to allow me to refer to and quote from it.
The simple answer is: well, that’s what the fair usage clause is there for. (This is the clause within the Copyright Act that allows for “fair usage” of another’s work for the purposes of research, criticism or review.)
But for one thing, this is a book of fiction. Can I really rely on getting a judge who understands that fiction can sometimes also be criticism?
And for another: most of these things aren’t decided by judges anyway, because they never get to court.
Music publishing companies realised this a long time ago: that it’s whoever has the biggest team of lawyers and the most money to throw about who in effect gets to set the laws. For a long time their interpretation — that even using one line of a song constitutes a copyright violation — has been accepted as fact. Even though to my knowledge this has never been tested in the courts; and it’s certainly not the advice I received from the Australian Copyright Council.
In other words, if publishers settle out of court — and who can blame them? — it becomes irrelevant whether my use is legal or not. (And it’s certainly irrelevant whether it’s ethical or not.)
Let me say, here and right now, that I fundamentally support the principle of copyright protection for authors: that is, the principle of asking for permission to reproduce substantial pieces of another’s work, and the need to compensate artists for any loss of sales this might involve, or for their original labour in producing the work. (Effectively: so they can go on producing more work).
But I also believe in the principle of free speech, and the need for writers to be able to imaginatively, creatively and productively engage with the cultural products and contemporary cultural events around them. I can’t see that it’s in anyone’s interest (least of all other artists’ and musicians’) for us to be forced to go on writing books as if music, television, films and magazines don’t exist or have important effects in the world or on people’s lives and feelings.
And given the nature of contemporary culture, I really don’t think it’s useful to make a distinction between those who appropriate and those who don’t. Everyone borrows from everyone; everything is connected to everything else. What I think is much more useful is to look at the effects and implications of the myriad different kinds of borrowings that do go on: the ethics, if you like, of each type of borrowing, and the politics.
For my own part: I don’t just tack other people’s work onto my own in order to enhance or embellish it (if I did, then it would be a much simpler proposition to just remove it and save myself time, money and trouble). I’m meticulous about referencing and acknowledging other peoples’ work in my own — my initial training was as a historian, and I see no point in putting the quotes in there if readers aren’t aware of where they come from or aren’t given a sense of their original context. Especially if what I’m trying to do is to critique, disrupt, extend or play with something, then it’s essential that the original intention (or effects) be also made clear at the same time.
So these are my own personal ethics (or politics) about what I do.
Thus the problem for me, for instance, with Helen Darville’s appropriations was not that she used someone else’s words (I think pastiche as a form is fine; it can be effective and interesting if done well) but that she didn’t acknowledge this. If she had, of course, then her own lack of personal experience and, hence, personal authority would have also automatically been acknowledged and made obvious, and this would have altered the whole way the book was experienced. It would have been a different book, with a different history (and vice versa).