Author Archives: Greg R. Fishbone

Celebrate Fair Use Week 2015

‘Kiss me, Harry,’ Ginny begged.

Harry pushed her away from him with a fist made of self-determination and Bessemered steel. His jaw was as strong and as powerful as a quarry that employs 200 men. ‘How can I kiss you,’ he said, ‘when you lack the ability to celebrate yourself as the highest culmination of your own values?’

‘I don’t care about any of that,” Ginny said. “I just want to feel your lips on mine. Please.’

Harry shook his head, like a proud animal, or the stock market. ‘I could kiss your lips,’ he said, ‘but I cannot kiss your self-esteem.’

–Ayn Rand’s version of Harry Potter and the Half-Blood Prince, as envisioned by Mallory Ortberg.

The doctrine of fair use touches upon several of the hats that I wear: as a creator of copywritten works, as a consumer of entertainment media, as a library patron, and in my work as a web designer who is frequently charged with finding, adapting, and licensing images for client sites.

As an attorney, I’ve had clients on both sides of cease and desist letters–one who was asked to take a book off the shelf because of superficial resemblance to another work, and another whose artwork was commercialized without permission, credit, or compensation.

As an author, I’ve written parodies of pop culture into my stories. I’ve also seen my own characters borrowed by others. It’s painful to see the “children of my mind” written as bad caricatures, and painful in a different way to see them written brilliantly in situations I wish I’d thought of myself.

As a forum participant, I’ve seen people who believe, mistakenly, that the doctrine of fair use allows them to take any creative expression from any source and use it however they choose.

In short, I’ve seen fair use, up close and personal, from a variety of angles, and it’s still just a big fuzzy blob of ambiguous, conflicting, and ever-changing precedent. If you’re confused by fair use, you’re in good company. And if you’re not confused, you’re delusional.

To bring much-needed attention to this topic, February 23rd through 27th of this year has been designated as Fair Use Week, as coordinated by the Association of Research Libraries.

You can follow @FairUseWeek and use #FairUseWeek2015 on Twitter. You can read the Fair Use Week blog on Tumblr. You can participate in any number of panels and events, including a free webcast on the topic.

But to really celebrate Fair Use Week to the fullest extent, I suggest finding some bit of intellectual property that you admire the heck out of and using it. Fairly. Respectfully. Harmlessly. Cleverly. And preferably to the enjoyment and enrichment of your audience.

My contribution to Fair Use Week is a work of Star Trek fanfiction on a website called Skrawl. The thing I like about this site is that once a story starts, it belongs fully to the community. Anyone can write a chapter that they propose as a continuation, and anyone can vote on which of the submitted chapters will become part of the final community-sourced story.

Or you can celebrate the week by taking a moment to recognize the fair uses of intellectual property that you already take advantage of every day.

  • When you find yourself humming a song off the radio, that’s fair use.
  • When you take a selfie with identifiable works of architecture in the background, that’s fair use.
  • When you DVR a TV show to watch at a later time, that’s fair use.
  • When you take notes in the margins of a book, that’s fair use.
  • When you discuss the events of Super Bowl XLIX without the express written consent of the NFL, that’s fair use.
  • When you photocopy your mom’s old recipe for sweet and sour meatballs, that’s fair use.
  • When you hit the retweet button, that’s fair use.
  • And when you use your computer to display the words of a blog entry about fair use, that’s fair use too.

Without this common sense exception carved out of copyright law, we’d likely be dodging C&D letters and subpoenas all day, every day. Thanks, Supreme Court Justice Joseph Story!

The use of Supreme Court Justice Joseph Story and his 1841 four-factor fair use guidelines to illustrate fair use is an example of fair use.

This unauthorized adaptation of a Harvard Library Office of Scholarly Communication graphic of a Ralph Lieberman photograph of a William Wetmore Story sculpture of Supreme Court Justice Joseph Story and his 1841 four-factor fair use guidelines paired with an allusion to a World War II era US Army recruitment slogan is an unnecessarily complicated example of fair use.

Lemony Snicket’s Particularly Unfortunate Event

Last week at the National Book Awards, Jacqueline Woodson, who is African American, won for Best Young People’s Literature. Immediately afterward, Daniel Handler, who is Lemony Snicket, made a watermelon joke.

A video is here, and this transcript was made by David Perry:

Woodson: Thank you for your love of books, and thank you for changing the world.

[music]

Handler: I told you! I told Jackie she was going to win. And I said that if she won, I would tell all of you something I learned about her this summer, which is that Jackie Woodson is allergic to watermelon. Just let that sink in your mind.

And I said you have to put that in a book. And she said, you put that in a book.

And I said I am only writing a book about a black girl who is allergic to watermelon if I get a blurb from you, Cornell West, Toni Morisson, and Barack Obama saying, “This guy’s ok! This guy’s fine!”

Alright

[cackle]

Alright, we’ll talk about it later.

I first learned of this alleged joke by following a Twitter link to a Horn Books blog entry by Roger Sutton titled, “Being a White Guy in Children’s Books.”

Sutton touches on issues of diversity and male privilege in children’s publishing, but also suggests: that Handler is guilty of “overreach,” as if there were some less objectionable version of this particular joke; that Handler mistakenly thought he was “cool enough” to pull off such a joke, as if another humorist might have had better luck at it; and that Sutton, or any other white male, can’t complain too much because they could have easily “fallen into the same trap.”

I strongly disagree with all three of these implications.

First, take a look at the structure of Handler’s joke. At its core is an observation that’s only ironic or amusing to someone who buys into an infamously offensive racial stereotype, and which anyway has nothing to do with Woodson’s literary accomplishments. This was not a risky joke that hovered just beyond Handler’s comedic reach, as Sutton implies. This was an unfunny statement that would have been equally inappropriate to the venue no matter how Handler could have told it.

Is Sutton at least right that the joke might have worked in a different context if only Handler were “cool” enough to pull it off? I don’t know whether Sutton is using “cool” as that Fonzie-in-a-leather-jacket mix of confidence and style that lets some people get away with breaking the rules, or as a euphemism for…something else.

Either way, let’s assume a “cool” comedian like Chris Rock were able to make a successful joke about Jacqueline Woodson’s watermelon allergy. So what? That would be entirely irrelevant because Daniel Handler is not Chris Rock, and because the National Book Awards are not an HBO comedy special.

So if it’s not the joke that failed, or the insufficient “coolness” of the joke teller, then what exactly is the trap that Sutton thinks Handler fell into?

I’d like to posit that this was a classic example of filter-fail.

We all have thoughts we would never say out loud—and I mean all of us humans, not just white males like Daniel Handler, Roger Sutton, and myself. Our senses of humor are built over a lifetime, based on personal experience, and influenced by the society we live in, largely beyond our conscious control. Once you hear a racist joke, it can never be unheard. Luckily, our brains come equipped with filters. When we know a joke is wrong, hurtful, offensive, and unfunny, we can choose not to pass it along to other people.

Handler’s contextual disclaimer emphasized how aware he was that a watermelon joke would be too toxic for him to write into a book, so it’s mind-boggling that he would opt instead to say it out loud to an auditorium full of people—not as an off-the-cuff remark that reached too far and fell flat, but as a story that took months of planning and reflection beforehand.

On the basis of a private conversation that we have no other record of, Handler believed he had Woodson’s permission to tell a racist joke about her, and that such permission would keep anyone else from being offended. No matter how cool you might be, there is no way to ever pull that off.

If Daniel Handler’s internal filters had been working properly, telling him which jokes can be shared with others and which should be smothered, none of us would ever need to know that Lemony Snicket is amused by such things as watermelon allergies among people of color.

But now we do.

Is Sutton right to worry that he himself might suffer a filter-fail under similar circumstances? Or that this is in any way a problem exclusive to white males? Is it wrong for him to empathize with Handler? Is it wrong for me not to?

I am holding Handler to a higher standard than other people, not because of Handler’s gender or skin color, but because he is a professional humorist who writes for children. I also write humor for children, and only wish I could do it half as well as Handler can. He has long been an idol and role model for me, especially in the way he has developed his literary voice and professional persona. I want to do what he does.

But while I can see myself making any number of embarrassing gaffes if I were given a microphone in a public setting, I can’t imagine ever joking about Jacqueline Woodson’s watermelon allergy, or finding humor in such a situation.

It’s personally horrifying for me to think that a watermelon joke could come from the same quirky wit that has produced books that have made me laugh out loud. I won’t be able to read those books quite the same way as before.

And for me, that’s just from the second-hand offense I feel on behalf of other people, a tiny fraction of the outrage and betrayal expressed by Nikky Finney and other commentators who experience racism in their daily lives, and who reasonably expected a literary awards presentation to be a safe zone.

To Handler’s credit, he owned up to his filter-fail in a series of tweets and pledged $10,000 to the We Need Diverse Books campaign, with additional matching funds of up to $100,000. Not that he can pay, buy, or donate his way to forgiveness, but it is refreshing to have at least some attempt at restitution.

We need diverse voices so that our children internalize actual viewpoints instead of ugly stereotypes. That way they can grow up to tell jokes about all the great stories they’ve read, rather than the hateful old jokes of the past.

A New Year of Writing

In our household, yesterday and today mark the start of a whole new year! And whether you celebrate Rosh Hashanah (Jewish New Year’s) or not, there are lessons that can be applied by writers looking forward to improvement in the upcoming year of 5775

Here are my Rosh Hashanah writing tips…

Resolutions

Hopefully, you have already made progress on the resolutions you made back on January 1st (that other New Year’s). If not, take this opportunity to rededicate yourself in the fourth quarter of CY2014.

It’s not even October yet, so there’s still time to lose those 20 pounds, finish that manuscript, jog five miles a day, send out those query letters, floss regularly, register for a conference, stop smoking, and this time make it stick!

Or just pick one or two of the above and give it all you’ve got while there’s still some year left to work with. If you didn’t make a writing resolution this year, what about joining a community of blogging middle grade authors? (Hint, hint!)

Even if you’ve been sleepwalking through 2014, it’s not too late because you have…

The Shofar

The shofar is a symbol that you might have seen on Rosh Hashanah cards in the Hallmark Store. It’s a musical instrument from the days when the horn section played on actual horns–the bone-like projections from the head of a ram, removed, shaped, and polished to horny perfection.

The sound of the shofar was meant as a wake-up call, because those were also the days before digital alarm clocks. To begin your new writing year, you will also need a metaphorical wake-up call.

Pick a sound that represents your dreams for the next year. It might be your mobile phone ringing with “the call” from an agent. It might be the flipping pages of your next book. It might be the creak of a chair as a reader leans forward in anticipation of your next chapter.

Or maybe it really is the sound of a ram’s horn, if you also happen to moonlight as a shepherd.

Find a way to represent that sound, focus on it with all your attention, and resist the temptation to hit the snooze button.

Once you’re fully awake, it’s time for…

Tashlich

Some people follow a tradition called tashlich, in which all the sins and troubles of the past year are symbolically thrown away as breadcrumbs tossed into a river.

I like this tradition a lot. We all have habits we’d like to get rid of and mistakes we’d like to forget, but how often do we actually make a physical effort to dispose of them? And how great would it feel to watch these problems float away or become fish food?

Your writerly tashlich will be personal to you. Maybe you’ll throw away a handful of cliches. Toss out a double-handful of procrastination. Rid yourself of a slice of self-doubt. It will make you feel better–and when you feel better, you will write better.

At least that’s my theory for this year, and I’ve resolved to follow it.

And also…

Ask Forgiveness

According to another tradition, this is the time of year to ask forgiveness from anyone and everyone you may have slighted, offended, or harmed in the past year–intentionally or not, and knowingly or not.

I’ve made such requests and have had them result in a list of things I’ve done that I never even imagined as offensive or harmful, which is a humbling experience. Then I received forgiveness, which always has a cathartic effect.

But since we are writers, we can harm people who inhabit fictional worlds as well. Have you done your protagonist wrong? Have you neglected your manuscripts? Have you kept a promising idea in your head instead of setting it down on paper?

This holiday may be a great opportunity to review your work, ask forgiveness of your characters, and make a plan for setting things right.

When you’re done, it’s time for…

Apples and Honey

After all that introspection, you deserve a reward. So slice an apple, and dip it in honey. That’s the traditional way to symbolize the sweet year ahead.

And if one of your resolutions was to eat more fruits and vegetables, go ahead and make it a double serving!

Finally…

Be Inscribed in the Book of Life

The ancient rabbis believed that our future was predetermined one year at a time, subject to the influence of our thoughts, deeds, and prayers. It’s a blend of predestination and free choice that could give headaches to any philosophy major.

The best part of Rosh Hashanah, especially for us writers, is the idea of a metaphorical Book of Life. According to tradition, this is an actual annual book that lists everyone in the world and their entire upcoming year in great detail. Today, it’s been written, but we still have time to request edits, revisions, and changes–at least until the Yom Kippur publication date.

God is the Author of history, but each of us has the chance to do some light edits of our own personal stories, and that’s the most exciting collaboration of all.

L’Shanah tovah, and may you be inscribed in the Book of Life for a year of all good things!