Fair Use in Historical Haibun

In the spring of 2021, I received a message asking about the legality of using existing texts for my “Historical Haibun” pieces. Specifically, I was asked about copyright clearance for the prose in “A Lull in Shiki’s Winter,” which quotes a translation by Donald Keene of a diary entry by Shiki (the original Japanese is in the public domain, but the translation is not). In response, I wrote the following message, on 14 April 2021. The recipient and a few other details have been redacted or slightly revised.

From: Michael Dylan Welch <WelchM@aol.com>

To: [removed]

Sent: Wed, Apr 14, 2021 12:01 am

Subject: Re: A Lull in Shiki’s Winter

Thank you for your thoughtful message.

I consider my use of Keene’s translation to be transformative and fair use. It is also part of a larger body of what I’ve called “Historical Haibun,” where I use established well-known historical texts and append a haiku to them. I would suggest that this context deepens the justification of fair use. I’ve published a dozen of these historical haibun (mostly in Contemporary Haibun Online), which you can read together at http://www.graceguts.com/haibun/historical-haibun. A few of these texts are old enough to be in the public domain, such as Lincoln’s Gettysburg Address, Carroll’s Jabberwocky, and the Shakespeare pieces. And although all the other texts I quote from are (I believe) not in the public domain, they are famous enough that no one would be fooled into thinking they’re mine (if you’re concerned about my use of Keene, you could also ask about all the other texts I quote from that are not in the public domain, but perhaps you were not aware of them).

The “Lull in Shiki’s Winter” piece is unique in that, as part of my exploration of these “historical” haibun, I deliberately used a text that was not famous, but would still be of interest to haiku poets. For all of my historical haibun except the “Lull” piece I deliberately did not want any attribution of the quoted texts to their original authors, because the point of using these texts was to rely on readers to recognize them on their own without being told. The effect was therefore one of discovery—the reader would start to realize what I was doing, and thus, I hope, become engaged by that, and also see the poem at the end as particularly transformative of the historical text, in effect reenergizing it. For the “Lull” piece, however, knowing that it was not famous, my title deliberately identifies the author (unlike all the other titles), and I asked that the source be included, as it was in Drifting Sands Haibun, for which I am grateful (you are right that the original Japanese is in the public domain, but that the translation is not).

I would be utterly surprised if anyone at Columbia University Press or Donald Keene’s estate cared for one second about my use of this short text. And even if they were to notice it, I would hope that they would recognize the transformative effect. And on a purely practical level, I doubt they would waste their time going after something like this anyway. I do not see this as any kind of gray area, either. But it was essential to me, for this one instance of my twelve historical haibun, that my source be indicated, because the text in question is not famous like the other eleven, whether these texts are in the public domain or not.

You may also want to know that for 25+ years I’ve been collecting examples of what I call “déjà-ku,” or poems that bring to mind other poems (I’ve published numerous essays about this subject, and I’m frequently called upon to comment on instances of déjà-ku). Most of these are good (parody, homage, allusion, or sharing the same topic or season word). A few are bad (plagiarism, cryptomnesia, which is a kind of accidental plagiarism, and “excess” similarity). [For more information, see my Déjà-ku Diary blog and the Déjà-ku section of my Essays page.] In my study of these issues, I have also collected numerous books on matters of plagiarism, infringement, and fair use, and also was instrumental in encouraging the writing and publication of an essay by David Giacalone called “Haiku and the Fair Use Doctrine,” from January of 2004 (I was concerned at the time that I would want to quote problematic examples of déjà-ku without permission and wanted there to be a precedent and justification for fair use for such short poetry, especially if I was going to criticize the examples heavily). Giacalone is a retired attorney. I encouraged this piece (and worked with him behind the scenes on it) because I felt that the fair use doctrine breaks down when quoting something as short as a haiku, where you can hardly even refer to a haiku without needing to quote the entire thing. That point does not strictly apply to my use of Keene’s translation, but I mention it to indicate that I’ve explored and studied fair use laws for decades, which I have also had to assess in past professional capacities as an editor for several book publishers. I did not quote Keene cavalierly. I’ve even met him a few times—he’s signed my haiku autograph book.

I appreciate your support of my artistic goals here. I think, ultimately, that there is nothing at all to worry about regarding copyright infringement, even less so in the larger context of the set of historical haibun I’ve published. I applaud your question and giving this matter your consideration.

Good wishes,

Michael

P.S. See also https://www.plagiarismtoday.com/2006/02/16/fair-use-haiku-and-you/ (although, again, this doesn’t strictly apply to the Keene translation).