I can reprint these few words from William Wordsworth’s “Lines Composed a Few Miles above Tintern Abbey” because, in the United States, most works published before 1923 have passed into public domain (PD) and can be used for any purpose. Due to their PD status, I can use these lines to construct an editorial that builds on our shared cultural heritage. It wouldn’t be so easy to do so, though, if the poem had been published after January 1, 1923. Later works do not pass into public domain until after they have been published for ninety-five years and their authors have been dead for seventy, whichever is later.
Our laws, which firmly discourage plagiarism and protect the artist’s rights to his or her creation, can also be maddeningly restrictive. The past is available and can be drawn upon for use in creative works, as long as it’s a past that existed before most artists were born. The writer can borrow from Shakespeare, from Milton, L. Frank Baum, the King James translation of the Bible, and J.M. Barrie, but there are severe restrictions against borrowing from the cultural world that writers grew up in. John Gardner could find Grendel in the traditional story of Beowulf, but a new author would most likely not be free to fashion his own tale about this monster or the epic’s heroic warrior with quotes from Seamus Heaney’s translation.
In spoken language, whether we quote from Wordsworth, the Bible, Dirty Harry, Terminator II, Bob Dylan, or Britney Spears, we convey thoughts to each other with the aid of this shared history. The breadth of this verbal freedom is not available to the author.
There are numerous instances in stories where it would be perfectly natural for a character to think of or hear a few lines from a piece of popular music. Authors may cite the title of a song, but the actual lines are generally not available. I’ve rooted many of these lines out of stories while editing for Asimov’s. A writer can attempt to get permission for the use of these lyrics, but that attempt is often frustrating as well. A few years ago we purchased a story that contained a pertinent quote from A.E. Housman. We held onto the story for several months while the author sent three letters to the publisher. When no answer was received, he finally decided to make some minor changes to the manuscript and quote from Tennyson instead.
Not all attempts to get permission are unsuccessful. In November 1986, we published a story, “Elephant,” by Susan Palwick. Although the required credit line to Carlos Drummond de Andrade seemed to cover half the opening page, the publisher was quick to respond and had no difficulty with the use of the poem in the work. More than two decades ago, another author paid twenty-five dollars for permission to quote a Bruce Springsteen lyric. A few years later, when John Kessel and Jim Kelly were working on their novel, Freedom Beach, they planned to have a character play a tape of a John Lennon song in a cabaret. When they discovered that permission to do so would cost them five hundred dollars (which would have been a large chunk of the book’s advance), they approached David Bowie’s lawyers, but were disappointed to discover that Bowie’s lyrics would run them a thousand dollars. I said, “Why don’t you go to The Boss? After all, he’s the man of the people.” But they decided to have their character play a bebop version of Stephen Foster’s “Beautiful Dreamer.”
Authors have argued that there is a concept of “fair use” that should protect them, but the law doesn’t seem to support that theory. Fair use is a complicated concept that does allow a reviewer to quote from a source. Our constitutional right to free speech also gives the editorialist the right to quote from an original source. Except for parody, though, the doctrine of fair use doesn’t give the author permission to construct a story that uses the words of modern music or poetry.
In the year 2525, if copyright law doesn’t change, writers will find they can quote Springsteen and The Beatles with abandon. It’s unlikely, though, that such works will have the resonance they have in our own time. Unfortunately, future artists may not be any freer to draw upon the words of the contemporary poets and songwriters that influence them. They, too, will have to deal with the ruthless editor who demands a title change or cuts favorite lines from their best material.
