Klarinet Archive - Posting 000920.txt from 1999/03

From: LeliaLoban@-----.com
Subj: [kl] Copyright (was [kl] Gilbert and Sullivan parody)
Date: Tue, 16 Mar 1999 15:46:53 -0500

The people who disagreed with me when I said that the reposting of "I Am the
Very Model of A Newsgroup Personality" was illegal argued their points so
vigorously that I'm afraid their opinions probably prevailed. A remark made
here on a different thread has now ended my debate with myself over whether to
respond again to the copyright issue, at risk of angering those who want to
hear only about clarinets. Although I hoped that the copyright attorney who
sometimes posts to this list might do so again, since he hasn't, I've decided
not to follow the "let the Wookie win" policy I generally prefer (to avoid
unwinnable "yes it is / no it isn't / yes it is / no it isn't" battles that
can go on forever), because it seems wrong to leave incorrect information
sitting unchallenged where it might lead well-intentioned people to put
themselves legally and morally in the wrong.

Someone here demanded that I apologize. No. I stand by my previous message.
If I'm wrong, then by all means prove it, by citing specific research that
members of the list can verify and replicate, not hearsay from casual
conversations with people who are not specialists in copyright law. If
someone proves me wrong, or if I find evidence that proves me wrong, *then* I
will admit it and apologize.

I'm not an attorney and can't give legal advice, and I'm not about to re-hash
the whole discussion over again, so I suggest that anyone who thinks I was/am
mistaken should read the copyright information Mark Charette has posted on
www.sneezy.org. Also please search the Archives of this list, where the topic
of Internet piracy came up several times in 1998. The search words "fair and
use" will lead to branching-off places in several directions where most of
those discussions can be traced. The individuals who persisted in erroneous
beliefs never conceded, but I hope most people with common sense will be able
to tell who knew what he was talking about and who didn't. Consider the
source. What's yours? Mine is the Library of Congress Copyright Office,
which has a web site, lcweb.loc.gov/copyright. Anyone can go there, replicate
my research, and ask questions of the staff. I also did some of my research
on the phone, since the LC is a local call for me. The Public Information
Office is (202) 707-3000.

Since several points need specific clarification, I'll break the topic down
into more than one message to avoid excessive length. Please assume "IMHO"
for all that follows. The fact that someone is a professional writer does not
make that person an authority about copyright law. Far from it. As Secretary
and later as Vice-President of Washington Area Writers (a group that includes
both amateurs and professionals), in the late 1970s, I wrote the
organization's newsletter and helped arrange for speakers. We made sure to
invite a copyright attorney to speak at least once a year (we always chose a
specialist, because a lawyer practicing in another area generally won't know
enough about copyright law to give trustworthy advice about it), because the
group as a whole was dead ignorant about copyright law.

Since then, I've tried to keep up with the many changes in the law. It's
incorrect to say (as someone stated here) that an item posted anonymously on
the Internet automatically falls into the public domain. Copyright law
applies to electronic transmission in fundamentally the same way that it
applies to any other form of publication. Further, the law protects
"Anonymous" publications the same as any other.

The underlying reason for this protection is that true and absolute anonymity
is almost nonexistent. To take only the case of comedy writing, for decades
among small press writers, fake anonymity has been a wink-nudge way of
claiming (or admitting to!) authorship of something really silly while we pose
as Terribly Serious and Pompous and Above All That. It's a way of making fun
of ourselves, and *in its proper context*, this sort of thing is always
obvious. In fact, I did it right here on this list several months ago, with a
lyric that began, "This is a mess!" to the tune of Beethoven's Fifth. I
posted it as a tag under my signature. Instead of a byline, I added a note
that the author was "in hiding" or something like that. I don't imagine
anyone seriously thought somebody other than I wrote "This is a mess!" For
the record, no, that piece of fluff is not the sort of thing I bother to
monitor grimly on the 'Net. I hope I'm not quite that big a horse's
ass...yet. Give me time. But I only wish I had written anything half as fine
as that Gilbert and Sullivan parody; and if I had, I would certainly protect
my rights to it. I strongly suspect that in context, "I Am The Very Model of
A Newsgroup Personality" appeared in close proximity to the author's name in
such a way that the connection was unmistakable. Out of context, that
connection is lost and the work appears to be truly anonymous -- unless of
course it reappears in close proximity to someone else's name, as it did here
on this list, in which event the re-posting looks like a plagiarism, as I said
at the time. I don't mean to sound gratuitously insulting and I fully accept
that the person who did the re-posting on this list didn't intend to
plagiarize, hadn't seen the original context, whatever it may have been, and
didn't understand the convention of fake anonymity, but for future reference,
when you see a humorous "pome" floating around the 'Net without a byline, it's
safe to assume that there IS such a context lost in cyberspace somewhere.

I wrote my previous message under the (obviously erroneous) assumption that
people on the 'Net generally understood this running joke. I mean, I didn't
think anybody here seriously believed that my cat wrote the anti-clarinet
jeremiad signed by "Shadow" (although I did notice that she subsequently
exchanged a couple of e-mails with a cat named "Fluffy"....) It's also common
for someone to post something anonymously, let people guess who wrote it, then
'fess up later. It's business as usual among small press and online writers,
even fairly well-known ones, such as Darrell Schweitzer. He's co-editor of
_Weird Tales_ and author of several novels and collections, along with more
than 200 published short stories and Yog knows how many essays and poems, as I
know to my cost because I'm his official bibliographer. Many of his sillier
parody lyrics, "pomes" and such originally came out pseudonymously or fake-
anonymously. Sorting them all out is proving to be an enormous pain in the
brain. He self-publishes booklets of his lyrics and "pomes" under the imprint
of "Zadok Allen, Publisher" and writes the back-cover blurbs himself. Yes, he
does puff himself liberally (in context, it's obvious this is a joke, of
course) with words like "clever" (to answer the angry retort from someone who
said someone would hardly refer to her own writing that way) and all sorts of
other blurb-blab. Spoof printers are commonplace, too: Zadok Allen was an H.
P. Lovecraft character who came to an extremely bad end.

Unfortunately there may be a less benign explanation for how the Gilbert and
Sullivan song got loose. Posting copyrighted material without permission as
an "anonymous" contribution in an attempt to conceal the piracy from the
rightful author is an old trick, too, and was already commonplace in the
mimeographed fanzines I subscribed to as a kid in the 1960s. (That's why I
monitor transmissions of my own work by searching for key phrases, not by
searching for my own name.) As someone pointed out, no, I don't know where
the Gilbert and Sullivan parody song originated. Fine -- Does anyone here
know? Every posting of it I've seen has come from someone who got it from
another site where someone else posted it who also got it from another site.
We don't know what attribution (if any) appeared on these verses the first
time "someone" published them. We don't know whether the original publication
was copyrighted or not.

Until someone can cite the *first* time the Gilbert and Sullivan parody
appeared (anywhere, not just online), we must *not* assume it's in the public
domain, even if the author has never publicly revealed his or her identity.
Parody is extremely difficult to write as well as those verses. That's
professional-level, publishable writing and therefore I think it's wise to
assume that the author is a pro. Since pro writers rarely release our work
into the public domain, I must further assume that this author didn't
deliberately abandon his or her copyright, unless or until someone
demonstrates otherwise.

For all these reasons, the very fact that the Gilbert and Sullivan song bears
no byline convinces me it probably IS copyrighted. Today there's no better
way to attract attention than by pretending to hide. Look at all the buzz
Random House got out of publishing _Primary Colors_ by "Anonymous" (with an
obviously pseudonymous copyright claim by "Machiavelliana") in 1996. Joe
Klein's authorship was such a poorly-kept secret that policy wonks and writers
in the Washington, D. C. area started batting his name around well before the
review copies went out. Go ahead, try to convince the attorneys for Random
House that "Machiavelliana's" copyright claim was invalid because the name
printed on the colophon page was a joke!

In Part II, I'll talk about why I think any of this matters. You'll probably
be glad to know that Part II will be shorter....

Lelia
~~~~~~~~~~~~~~~~
"Being absolutely positive is nothing but being wrong at the top of your
lungs."
--Dad
~~~~~~~~~~~~~~~~

-------------------------------------------------------------------------
Unsubscribe from Klarinet, e-mail: klarinet-unsubscribe@-----.org
Subscribe to the Digest: klarinet-digest-subscribe@-----.org
Additional commands: klarinet-help@-----.org
Other problems: klarinet-owner@-----.org