An interesting IP scenario

In our topic today, ‘IP’ stands for ‘intellectual property,’ i.e., copyrights, patents, all those kinds of things that are not physical property but which are protected by various laws and lawyers.

Mostly lawyers.  Have you ever tried using a Disney character for some purpose of your own?  Try it sometime.  Leave the number of cease & desist letters you get in comments.  (For a saucy explanation of copyright protection and fair use of copyrighted materials, see: httpv://www.youtube.com/watch?v=CJn_jC4FNDo

So here’s my interesting scenario.  I’m working on Lichtenbergianism: procrastination as a creative strategy, and I’m clipping right along at about 1,000 words per day thank you very much.

As I work, I’m collecting examples, images, quotes that support the Nine Precepts.1 As I do so, I am quite aware of whether or not I will have to seek permission from a copyright holder in order to use those items in the book.  (I am aware mostly because Dianne Mize, in a letter describing her progress with her editor/publisher for Finding the Freedom to Create, described several roadblocks in finding a translation of the Tao Te Ching that she was allowed to quote from in her book.)

For the most part, I’ve used materials that are either in the public domain or have a Creative Commons license.  Direct quotes are cited fully in footnotes and bibliography and so fall under fair use.3

But today, in discussing the precept Steal from the Best, I directed the reader’s attention to Picasso’s Les Demoiselles d’Avignon and explained how a good artist would “copy” the African masks which inspired part of Picasso’s painting (leaving them and our world unchanged), while Picasso, a great artist, “stole” the masks, changing both them and our world in the process.

I know for a fact that there are usage restrictions with the Museum of Modern Art’s image, because their website says so, right there on the painting’s webpage along with a link to the company that handles licensing for MOMA.  For such a small scale work as Lichtenbergianism is bound to be, I figure it cannot be worth even a small sum to secure the rights to the painting’s use.

So I’ve linked to it in a footnote.  The reader who is unfamiliar with the work can put that URL into the browser and see the painting immediately.

Will I have violated copyright law by doing so?  This is an interesting question to me.  I haven’t reprinted their image without permission.  I have referenced it, and I’ve provided the information for my reader to find it, and in fact I’ve benefited MOMA by driving traffic to their website.  But it could be argued (in court…) that I have used Picasso’s Demoiselles as an illustration in my book: the reader simply opens up the webpage and then reads along in Lichtenbergianism with the painting there before him.

updated to add: Moreover, it could be argued that I intended to illustrate my book with MOMA’s image, that if it were public domain or CCC-licensed, or if I had had the funds to license it, I would have included the image. (Why am I contributing to the unraveling of the Commons here by doing their lawyers’ work for them??)

The floor is now open for comments.

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1 It occurs to me that I have not blogged specifically about the Precepts of Lichtenbergianism.  Tomorrow, perhaps.2

2 That was a joke.

3 The biggie is the book of Lichtenbergian aphorisms from which I pull quotes.  My use of them exceeds fair use, and the translation I’m using is definitely copyrighted.  So I see a couple of exchanges with R. J. Hollingdale in my future…

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