Beth Spencer on Wed, 14 Oct 1998 10:56:24 +0200 (MET DST)

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<nettime> I'd like to have permission to be post-modern

I'd like to have permission to be post-modern, but I'm not sure
who to ask...

Beth Spencer

This is my story, and I'm sticking to it. 

Well, anyway, it's stuck to me now.

It all began -- or my part in this story began -- when my editor wrote a
note on my manuscript saying: TYou'll have to get permission for all these
quotes.U Although I suppose it really began when I naively wrote the book
with all these quotes in the first place. Or maybe it began that day, back
just before I was born, when my father walked into the house carrying a
brand new television. 

Of course, in some people's reckoning, it began when America dropped the
bomb on Hiroshima... 

Anyway, I'm part of a certain kind of world, and I write in a certain kind
of way; a way, in fact, that has taken me about twelve years to develop. I
used to write stories, and essays; and now I write stories that also
sometimes function as cultural criticism, history and review. 

As such, my book How To Conceive of a Girl (Vintage, 1996) incorporates
lots of little narratives -- outside texts -- within its wider narratives.
Everything from all the stories and anecdotes people have ever told me, to
bits from 'The Donahue Show', the Bible, In Bed With Madonna, books on
infertility and birth, lines from popular songs, gossip items from New
Idea, fragments from philosophy texts, tourist information, characters
from detective novels, excerpts from 1960s school text books, and so on. 

I'm definitely a magpie, but I have a taste generally for things that are
well-worn; often things that are of no use any more, or so common that no
one's really going to miss out if I make use of them too. The cast-offs or
the mass-produced -- all the things floating or left lying around out
there. The space junk. Mostly things produced originally for an entirely
different purpose. In general I don't pick my bits up out of someone
else's nest, I pick them up off the street, or in supermarkets, or I dig
around in rubbish dumps. 

I'm really not sure how exactly I came to be suddenly convinced that I had
to get permission for all these things or I was going to be sued... I
guess I was isolated at the time, I was going through some other legal
problems (and hence having to face TrealityU -- in which good intentions
and ethics are largely irrelevant), and I tended to get conservative
advice the first time around. 

There are so many rumours out there; it's such a TgreyU area of the law. I
also knew that my own publisher had been sued last year, that it had cost
them probably more than I'll ever make from this book, and that just
generally everyone was clamping down all of a sudden on this kind of thing
and becoming very serious about it. 

So, there I am: ten hours a day on the phone, drafting letters and
searching back through boxes of notes. Doing (what I now see as) crazy
things like making about twenty phone calls trying to track down someone
who might know where the records of the now defunct Sunday Observer are
held so I can get the name of the journalist (no byline, so probably from
the US) who wrote a piece on Lynda Carter back in 1980... (A piece which
some wonderful sub-editor headed TI Want a Baby! -- Confessions of
WonderwomanU. So perfect. How can I presume to Tmake these things upU when
they're so already out there?) 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 sung
them for every concert on his tour, and learn to refer to him as TLouU or
TThe ManU like everyone else, and eventually after a few wild goose chases
I find out that TPale Blue EyesU is administered by EMI. 

(Um... It was EMI that 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

And then the very nice young woman from Marie Claire in England (TOh your
book sounds absolutely wonderful!U): 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, TOh, in that case it will just be
a token fee of fifty pounds.U

I see. 

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 Ttoken feesU? 

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

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 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, sort 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 -- typographical
stepping stones or punctuation points, if you like. Except that my Peta is
a girl; 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 four hundred words out of twenty
thousand; 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 at 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 accept 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. 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 TPale Blue EyesU). 

It's a bit like when someone tells you an anecdote and you say, THm, can I
use that in my next book?U and they say, TDo I get a royalty?U

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 Tfair usageU
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 get 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).  j 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

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 an historian, and I
see no point in putting the quotes in 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's1
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 and read. It would
have been a different book, with a different history (and vice versa). 

Well, anyway, while Darville's lawyers may be able to sleep soundly with
the conviction that her appropriations (while admittedly Tbad formU) are
not actionable (that is, not a clear violation of the Copyright Act), I'm
afraid I still have the occasional watery nightmare. (Especially with the
new Moral Rights law ready to be introduced into Australian Federal
Parliament at the next session... but that's a whole other kettle of

In fact, sometimes I wonder if it's not the case that the more ethical I
am, the more potentially actionable I might be making myself in the long

There were more than a few times, when talking about these issues, in
which I'd receive the helpful advice: well, just don't acknowledge it.
Don't identify the source and no one will notice, or they'll have a harder
time proving it. Just shuffle the words around a bit and leave off the
author's name. Whatever you do, don't write and let them know! In other
words: steal it. 

And I guess this is my concern: that if we have an inflexible attitude to
the use of other people's words, then we are encouraging a climate in
which people steal rather than borrow, pilfer rather than critique. Or
where the jokes become merely private. 

There seems to be this idea out there that appropriation is easy. A bit
like the old idea that free verse in poetry is easy -- if you don't have
to rhyme, then hey, where's the talent in that? Anyone can be a poet (well
yes, I guess, in a sense, that's the point)... 

But if you are concerned with attribution and sourcing and referencing;
with evoking the original context and maintaining the integrity of the
fragment even in its new context; with and all these ethical and political
issues, as well as trying to sew the whole thing together into a
compelling narrative; with preserving a multiplicity of original voices,
and yet still taking some kind of final authorial responsibility for what
you are doing; itUs actually quite complex and takes a lot of thought, and
a lot of repetitive, painstaking labour, and imagination. 

It's just not as easy as it looks. 

I prefer to think of myself as a collaborator or cultural partner, not a
thief.  In fact, without exception (including The Man himself, who
instructed EMI to drop the fee to $130 after I wrote him a letter raising
these kinds of concerns), every author I've been able to directly contact
has been delighted that I've used their work and has wished me every

Lifting something can be exactly that; it doesn't have to be exploitative. 

As Eudora Welty once put it: TCriticism can be an art, too. It can pick up
a story and waltz with it.U


Beth Spencer <> is the author of How To Conceive of A 
Girl (Random House).

Helen Darville being of course the young Australian writer who won the
Vogel Award in 1994 with a novel called The Hand That Signed the Paper,
written under the name (and persona) of Helen Demidenko, and supposedly
based around historical researc and oral histories from her Ukranian
family. The book won the Miles Franklin Award in 1995 which sparked off
intense debate about whether or not the novel, which dealt with Ukranian
history from the 1920s through to the Holocaust, was anti-semitic and/or
worthy of such an award. During this debate it was also revealed that
Helen Demidenko was in fact (or in fact?) Helen Darville, whose parents
were British migrants, not Ukranian. Further allegations of plagiarism
also surfaced, as several passages in the novel were found to be modified
versions of passages from other novels and books. Debate wasn't just
confined to those interested in literary matters (or to those who had read
the book), but became hot news in the mainstream media for over a year and
several books were published on the topic. Two years later the
Darville/Demidenko Affair still rates chapters in books about Australian
culture wars, such as Gangland from Mark Davis and McKenzie Wark's The
Virtual Republic (both published by Allen & Unwin, 1997). 

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