What is an author to do?

September 7, 2010


Posted by Kevin Smith in : Authors’ Rights, Fair Use, Open Access and Institutional Repositories, Scholarly Publishing , trackback

A fascinating little controversy came to my attention the other day; one of those disputes that seems well outside the arena of academic issues, yet raises lots of questions that scholarly authors need to consider.

The basic facts of the dispute, which are summarized here on the Techdirt blog, are that the author Raymond Carver published a group of short stories in the 1970s and early 1980s that were subject to very heavy revision by his editor at Knopf Publishing, a man named Gordon Lish.  It seems that it is Lish, more than Carver himself, who was responsible for the spare, laconic style for which Carver was famous.  In fact, Carver’s stories were much more sentimental and expansive before Lish finished with them.  Now Carver’s widow, Tess Gallagher, wants to publish the original, unedited versions of these stories and she is being threatened with a copyright infringement claim by Knopf if she does so.

Two things should be acknowledged up front about this disagreement.  First, Carver consented to the changes, although he grew increasingly dissatisfied with them, and legally transferred copyright to Knopf.  Second, it is at least arguable that the changes made by Lish really did improve the stories.  But each of these acknowledgments also must be qualified.  Carver gave his consent to the changes and to Knopf’s ownership of copyright, but he pleaded with Lish to stop falsifying his authorial voice, even threatening to stop writing altogether if the editing continued.  Unfortunately, Carver was trapped by the publishing system; there was no way he could express himself without the services of Knopf, and Knopf’s editor insisted (for a while) on making the changes.  And while the changes may have improved the stories, they have obfuscated scholarship about Carver over the years.

A law review article by Cardozo law student Matthew Weldon discusses this case in detail and describes what options are open to Tess Gallagher.  In the process, he offers some nice reflections on the role of an editor, although it is unfortunate that his categories of writing and the kinds of editing appropriate to them does not include academic works.  The upshot of his analysis is that US law does not give Ms. Gallagher many options.  He considers how the moral rights tradition would protect Carver from drastic changes to his work, but notes that the US has never protected attribution and integrity, in spite of commitments to do so in international treaties we have joined.  In the end, the best Weldon can suggest is that the moral rights that underlie this controversy would support a fair use defense if Gallagher decided to go ahead and publish in spite of the threats from Knopf.

It seems to me that this case raises several important questions for academic and scholarly authors to consider.

First, what should the role of an editor of scholarly works be?  In copyright controversies, publishers are pushing harder and harder on the idea that they make copyrightable contributions to journal articles.  Yet even in the extreme case of Gordon Lish, there is no realistic way to claim that his changes gave him a copyright interest in the stories apart from Carver’s transfer of his own rights (as Weldon shows in some detail).  And if publishers do make significant changes to scholarly works, we need to ask whether those changes improve the work or undermine it, and how such alterations should be noted in order to preserve the scholarly record.

Second, do scholarly authors need to take steps to protect the integrity of their ideas and their voices from editorial presumptions?  Just as with Raymond Carver, the European tradition of moral rights does not function well in the US, so there is little protection, in copyright, for attribution or to preserve the integrity of an author’s work.  If an author in the US wants a guarantee of attribution, for example, it must be negotiated into the publication contract.  So must any guarantees about preserving the integrity of the original work.  These “moral” issues are at the very heart of value of scholarly publishing for academics, and yet copyright law does not protect them; there is no legal reason why, after a copyright transfer, the work of an author could not be published in revised form and/or over the name of a different person.  Thus extra diligence when transferring copyright may be required for scholarly authors who are concerned about their reputations and about the integrity of the scholarly record.

Finally, the Carver stories, and the failure of copyright law to provide a good solution to that dilemma, causes us to wonder if copyright law as it currently exists really serves the needs of scholarship or if it more often hinders its progress.  Certainly studies of the work of Raymond Carver are seriously undermined when critics cannot tell whether they are reading the words of Carver or Lish, and cannot compare the two versions.  Carver, of course, was trapped by the publishing system, where dissemination of his work left him no alternative but to acquiesce to his editor’s suggestions.  But academic authors today are not so dependent, and neither are creative artists.  The Internet offers opportunities to distribute work without any role for intermediaries, if the author thinks that is her best course.  And a stable online presence, even after traditional publication has taken place, can help an author defend his reputation against misappropriation or corruption of his work.

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