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Nonfiction Matters
Inside Nonfiction Matters

Nonfiction Sings the Blues

The Problem of Permissions and Copyright

Have any of you seen Nina Paley’s animated film (for adults, not kids) Sita Sings the Blues? Here is a trailer, and here is a website I mention it here because Ms. Paley is involved in an intense and protracted fight over the rights to some of the music she used in the film. In particular, to get a 1920s period feel, she used recordings by Annette Hanshaw even though she had not cleared the rights to them. In fact, since the film came out, and garnered very high praise (from Roger Ebert to the festival circuit) the fight over rights has grown more pointed and more intense. As you can see in this interview, Ms. Paley is now arguing that artists should ignore or defy "illegal and unconsitutional laws."

Here’s the problem from my POV — and how this contretemps relates to nonfiction for younger readers. As an author, editor, packager I cannot agree with her. I want my rights protected and so I need to respect the rights held by others. And I need to do so even if the entity now demanding payment is not the original artist, or his or her family, but some soulless corporation that merely charges extortionate rates. And yet I also agree with her that copyright and permission structures as they now exist serve to stiffle creativity — not to promote it, which is the explicit and legal justification for copyright. Copyright is meant to reward creativity with ownership, and thus stimulate new creation. But just the opposite is taking place now.

Here is what I mean: when we use archival art to illustrate nonfiction we often have very limited choices. If you want to do a book on space flight you are in luck, NASA’s images are great and free. But if you want to do a book on early space flight, Life Magazine images — which are also great and precisely relate to your subject, are not in the least free. And while there is a bit of a sliding scale for the kind of book you intend to do, basically rights holders can, and do, hold you to over $100 per quarter or perhaps half page. And, by the way, museums in England are worse. 

So in this age where our readers expect and demand many eye-catching visuals, and reviewers are alert to accuracy in images as well as text, the cost structure for getting those images is entirely out of whack with the realistic sales of the book. And so we either lose money, or are less creative, making inferior books. And so to return to Nina Paley, I do think we need a different copyright structure. The goal should be creating the best book to engage and inform readers. I am not sure how to get there, but I know we must. Books represent labor — the work of the author, editor, designer to craft the very best way of presenting information. But when the permission budget goes through the roof, all of that labor is undermined. As we head into a new year, this is a crucial issue for all of us.


  1. DEBRA HANSON says:

    What about using art and photos licensed through ? A lot of people are willing to share their work this way – especially for non-profit or educational use. Maybe it’s time for publishers and authors to partner with regular folks who have some talent and license their work through Creative Commons.

  2. Marc Aronson says:

    Debra: Yes, certainly. But the problem is that sometimes you need one particular archival image — there is simply no other option. I do wonder, though, if there could be a way to create some pooled Knowledge Resource of archives where, for books aimed at schools and libaries, there would be a smaller baseline fee as well as some kind of benefit to the institution for making its resources more widely available.

  3. DEBRA HANSON says:

    Understand. I agree with you, too. Seems there should be a way to do that as a benefit for the greater good.

  4. Karl Fogel says:

    If you’re under the impression that copyright was invented to subsidize creativity, you might want to read its actual history: (primary sources are given as references there).

    With the invention of the Internet, we’ve removed the original (and final) justification for copyright, which was to support and regulate distribution rather than creation.

    Remember, copyright has nothing to do with protection from plagiarism (that’s a separate offense — you didn’t imply otherwise, but many people think they’re the same, so I just try to put that out there right away). And it has nothing to do with stealing: if I steal your shoes, now you have no shoes; if I copy your book, now we both have it.

    “But how will artists get paid?”, you might ask…

    Well, first of all, most of them will get paid the same ways they’ve always gotten paid: commissions, grants, day jobs, patrons, product placement, etc. But it’s the wrong question anyway: we don’t have a shortage of creativity (far more books are published each year than anyone could hope to read, for example), instead we have a shortage of shareability. We should tune our system to match our technology (the Internet), just as we did when we invented copyright (the printing press).

    When you speak of “rights”, you’re actually talking about restrictions: the right to which you refer is a state-supported monopoly that restricts other people from sharing and making derivative works. That monopoly may have been justified once, but it no longer makes much sense. It’s fine to view this as a matter of choice, but then remember to include everyone in the calculus: when a publisher chooses to restrict a work, that takes away everyone else’s choice to do things with that work. Whereas if we let people have those freedoms, we do not take away any of the author’s or publisher’s freedoms. So the options are not symmetrical here: we can have less freedom, or more freedom.

    If you want concrete examples, think of all the books that don’t get translated every year, because the rights holders (excuse me, restrictions holders) squash the translations. This happens all the time. And yet, when I published a book under an open copyright license, volunteers showed up to translate it into several other languages, because I’d given them that freedom. Now some of those translations are even being published and sold as paper copies, just like the original book. And that’s for a niche book. If it worked there, can you imagine what people would do if given the freedom to translate anything they wanted to?

    Freedom really works. Come on in, the water’s fine!