Once there was a tree … Shel Silverstein's estate and publishers

… and this time the tree wasn’t happy. There was this boy, San Diego State University professor Joseph Thomas, who wanted to use some branches of the tree to build a biography of Shel Silverstein. Now even though in this case, the tree could still live on happily with all of its branches and all the boy to build what he wanted to build, the tree didn’t give up anything.

That’s basically the story in Slate. If this weren’t Sunday morning and I wasn’t outraged — as part of Joshua Gans’ week long ‘War on Copyright Holders’ — I could imagine penning that story into a satirical, if very derivative, poem. But this is Sunday morning and I am still not sure who I am upset with.

First, a quick backstory. Shel Silverstein who died in 1999 was apparently a more interesting character than those of us who read The Giving Tree to kids normally would think. According to Thomas, he wrote for Playboy and had some songs with dubious lyrics. That said, in spending too much time on his Wikipedia page, I also discovered that he wrote “Put Another Log on the Fire” which was one of my favourite childhood songs.

Thomas had been researching a biography of Silverstein for which the only other treatment is a likely biased account. However, to do justice to Silverstein’s work, Thomas has to quote liberally from him and include pictures and what have you. Academic publishers don’t do the legwork on getting copyright permissions so Thomas had to do that. He was shut down by Silverstein’s estate. Basically, he could not quote anything ever. Thomas then took to the pages of Slate and mentioned the sort of things that Silverstein’s estate might be worried about revealing.

My lawyer friends will tell me that copyright law actually protects Thomas and his publishers here. “Fair use” would likely have allowed pretty much anything that Thomas wanted to quote without him having to ask for permission. But the publishers wanted permission asked for regardless. The problem there was that when Thomas received a ‘no’ the publishers took that as a ‘no’ even though it was just a ‘no permission’ and not a ‘no the law says you can’t do this.’ So Thomas can’t get his book published.

In reality, while it is somewhat ‘not giving’ for Silverstein’s estate to not grant permission one can actually see why they wouldn’t be happy seeing the biography published. But that is precisely the reason we have “fair use” because we recognise that copyright holders may want to block more than just copying. I have been lucky in my books. In Parentonomics, I asked both Malcolm Gladwell and Orson Scott Card permission to use lengthy quotes and they gratefully gave it and wished me luck. The only time I was asked to pay was when I wanted to use a picture of Coke can in our chapter on product differentiation in my adaptation of Mankiw’s Principles of Economics. Coke wanted to charge us for permission. I promptly switched the picture to Pepsi and that picture has been presented to almost 100,000 Australian students now.

The problem this time around is academic publishers or publishers in general and what they are willing to do. They appear willing to let a controversial work not be published rather than feel the ire of a law suit that is likely to fail. Thomas certainly isn’t in a position to fight a legal claim but it is a shame that publishers do not see that as part of their role. I guess when it comes down to it, the returns to publishing certain books are too low to add a legal bill to costs. But all in all it points to a broken system.

So what is someone like Thomas supposed to do? First, he could self-publish. The worse thing that happens is that he gets a law suit and then pulls the book. Then again, that may be easier said than done and may leave him open to liability risk.

Second, he could find some wealthier benefactor to publish the work and defend the claim — that sounds like a great opportunity for philanthropy by someone wanting to protect freedom of speech.

Finally, I guess Thomas could publish his troubles in Slate and, in the process, mention the juicier bits of Silverstein’s life in the hopes that they will seep into the public domain and leave his estate thinking that perhaps a more balanced biography would be better than this outcome. Of course, that would require those juicier bits to start appearing on discussions about Silverstein or perhaps on his Wikipedia entry as a result. (As of this morning, something appears to have happened there).