Here’s a new ad campaign by Home Depot. Scene opens on a suburban woman in khaki shorts and a summer hat, the sun hitting her muddy calves, making them sparkle as she walks through a manicured backyard: “I have done it again. One year in every ten I manage it-- A sort of walking miracle, my skin bright as a Home Depot lampshade.” Male Voice Over: “Come to Home Depot and get lampshades that will make you glow in the dark.”
Here’s a commercial idea for Victoria’s Secret. A woman walks down a crowded New York City street in her underwear, bare foot and black sunglasses, her footsteps literally smoldering in her wake, as all sorts of men watch her in awe, as a sexy female voiceover speaks: “Herr God, Herr Lucifer. Beware. Beware. Out of the ash. I rise with my red hair. And I eat men like air.” Then a handsome man in a business suit, with a freshly plucked rose, stands in her path, and she walks right through him, disintegrating him. Male voiceover comes in as the screen fills with smoke: “Victoria’s Secret—it will bring out the man eater in you.”
I know poets, such as Robert Desnos, have worked in advertising before, but that should be a choice that each poet makes.
Last year C.K. Williams was talking to a class of mine at Sarah Lawrence, and he lifted the galleys of his Collected Poems and said that he was “holding his life’s work”, as he gripped the five-hundred or so pages in his hands, almost like a baby. It was poignant—this smart, passionate, insightful human had focused his energy, had given the best parts of his life to a brick of paper. (I am reminded of Merwin’s line: “I who have always believed too much in words.”) Williams does not leave a skyscraper in his wake, rather 500-plus pages of poems, read by relatively few of his fellow citizens. Despite a small readership, he (and other poets) should be afforded the same copyright protections as musicians, film makers, fiction writers, painters, etc. We are not sub-artists.

Originally Published: June 5th, 2007

Jeffrey McDaniel is the author of five books of poetry, most recently Chapel of Inadvertent Joy (University of Pittsburgh Press, 2013). Other books include The Endarkenment (Pittsburgh, 2008), The Splinter Factory (Manic D, 2002), The Forgiveness Parade (Manic D Press, 1998), and Alibi School (Manic D, 1995). His poems have...

  1. June 5, 2007

    copyright goes both ways. it can be used to protect the artist's interests (creative and financial) and those that protect the business interests (usually just financial, but not always!) behind its publication and distribution. ask any (signed) musician--these two sets of inetersts don't always overlap that much.
    all written work is copyrighted automatically under US law, whether you register it or not. unless you go out of your way to license it (or sign it away in a contract) your work is yours and nobody else's. copyright in that sense protects you (the writer) against plaigiarism (like patricia experienced) or other forms of theft. but even so, certain uses (like those commercials) will fall under fair use or within excerptable limits, etc. copyright also expires after a set date (different depending on year of original composition or publication) unless it is renewed by the author or her estate. work that is not renewed is then public domain and can be used by Victoria's Secret to sell as many panties as they like.
    there are writers (and photographers, and musicians, and visual digital artists, and filmmakers, typeface designers, etc.) who for whatever reason choose to relax this default/automatic "all rights reserved" position by licensing the work for certain restricted uses, as via the Creative Commons licenses. not sure if kenny does this explicitly or not, but marking your work with one of these free-for-sharing-within-certain-limits licences opens up the possibility for appropriation by other artists in certain contexts, say remixes, or collaborations, etc.
    the way some publishers (or record companies, etc.) wield copyright is a whole nother kettle o fish and can actually hamper the artists' own rights.
    in general, authors should make sure their books are registered in their own names by their presses (check the copyright page) instead of the press's name, and all should read their contracts carefully to make sure they know which rights (anthology, electronic, reprint) they're giving up, if they're concerned about this stuff. what many probably don't realize is that a standard contract technically would prohibit them from saying yes when invited to have a poem reappear in an anthology, record a podcast, or perform the poem via digital video to be posted on You-Tube, etc. new media = new copyright issues. many presses wouldn't actually press it, but why take that chance?
    since poetry is a special case (that gift-economy or intellectual-economy vs. real money again), this mostly hasn't mattered much. but electronic rights are becoming increasingly important, and with POD there's also a very compelling reason for poets to make sure their contracts spell out when rights are reverted to them should their books go out of print, etc. i know at least a dozen poets whose early work is out of print but who are unable to reprint it themselves (or find a new publisher to do so) because it has not been released by the original publisher. not a spot you'd want to find yourself in, presumably.

  2. June 5, 2007

    Hi Shanna,
    Thank you for sharing your expertise. That's a great suggestion about being aware of the contract you sign.
    I was under the impression that if a press leaves a book out-of-print for something like 5 years than the author can do whatever they please with it. Is this not the case? I guess it depends on the contract.
    Also, would it be legal for corporations to appropriate Sylvia Plath's poems for their commercials without permission from the estate? I have to think the answer is no, though maybe I am missing something and don't fully understand the term "fair use".
    Also, to clarify, while all work may be protected by copyright instantaneously, isn't there a greater level of protection when it's registered specifically with

  3. June 5, 2007

    well, i'm certainly not a lawyer, but i believe the registration is optional and protection is automatic.
    here's the thing tho, in any case: the plaintiff in any lawsuit claiming infringement (be it sylvia plath's estate or whoever) would have to prove the infringement rises to the level of damages. in the case of a commercial using the lines without permission, the estate or copyright holder could approach the company and ask for a royalty, etc. and the company might very well pay it voluntary, settling out of court. because a judge probably wouldn't hear such a case--even if the commercial led to profits for the car company (or whoever), it probably didn't negatively impact plath's intellectual property or infringe upon her estate's or publisher's ability to sell the book, and that's what copyright *really* protects: financial interests, not artistic ones. in fact, a borrowing would probably have the opposite effect--poems (and songs--though the music industry is *way* more likely to demand payment for such uses) get a boost from being used in commercials, etc.
    still, i thought i might die when i heard reverernd horton heat on that bostom market ad.
    there was an auden poem used in a movie (two weddings and a funeral? i never saw it, but...) in 1994ish. probably written into the script without permission (that'd be fair use under the heading of "literary allusion") but it was such a popular film the poem was released in a small special edition and actually hit the bestseller list. there very well could have been an agreement between the studio and the publisher, but had there not been, the publisher couldn't very well have made a case that their profitibility was negatively impacted by the unauthorized use of their copyrighted material.
    anyway, most of us should be so lucky, eh? classic (i.e. mainly deceased) authors need worry about this stuff. appointing a savvy executor(s) is a good idea should ya reach superfame. ;)

  4. June 5, 2007
     J. Bryan Shoup

    There have been a series of cases where Tom Waits has prevailed over companies using not only his songs, but sound-alike singers performing pastiches of his work for brief television commercials.
    Frito-Lay and other companies (check his well-referenced Wikipedia entry) have approached Waits for use of his songs. When he refused, several companies attempted to have soundalike singers perform pastiches or even merely use songs that sound similar to Waits' number.
    I imagine these commercials would bring positive commercial attention to Waits. People hear his song on a Frito-Lay or car commercial and become familiar with his work. But despite that, courts have ruled in favor of Waits who has felt his moral rights have been infringed. He doesn't want anything to do with those ads, even if it would benefit him economically.
    So proving the infringement rises to the level of damages seems to be as simple as saying "I don't like them using it." If the artist is unhappy, there's the damage.

  5. June 6, 2007

    yeah, i believe REM has done similarly, and the Beatles' music is famous/rabidly protected. there's more money involved (hate to keep coming back to that, but tis the aqua vita of country in which we live.) i imagine the record labels (or even the sheet music publishing companies) were also involved, though i really have no idea. people like TW (who rocks) have the wherewithal to hire attorneys, and can probably prove financial damages vis a vis the impact on their celebrity images of a dishonestly implied product endorsement, etc.
    i *don't* think it's cool/kosher/OK for megalocorps to use artistic work without permission, by the way. i think i sounded kinda blase about it. just noting that for a wee poet, it's 1) not really a concern since there no "interest" to "borrow" (to use the advertising terminology) and 2) not much practical recourse in the very unlikely event it did.
    i bet the plath poem jeffery cited was paid for anyway, and probably the auden in the film i mentioned was too. what they'd have to pay for the use of the poems probably pales in comparison to the money spent on models for the shoots!
    these are unusual situations for most poets though, aren't they?
    it's really funny how "the poet" as an abstract concept still carries cultural cachet (as in these commercials, and others with frost poems; see also: sean pean in that *weight of water* movie for another hilarious example), while poetry as an artform and contemporary poets don't so much! (rachel's recent post about telling somebody you're a poet equals marking yourself as a freak.) eh, at least we're not expected to be tortured souls in billowing white shirts adrift among the wreckage of our violently dramatic lovelives. (right?!) ;)

  6. June 7, 2007

    Enjoying the interesting comments. Just to clarify, the two Plath commercials that I described have only appeared in my mind, as they are completely imagined.
    The Home Depot one would present extra legal issues, because "Home Depot" is substituted for "Nazi", so not only does it borrow, but it also alters.

  7. June 8, 2007
     emily warn

    I'm so gullible. I was preparing a post that wondered whether any copyright law could protect poets from advertising companies appropriating poems for their own purposes, citing your quotation of a Holocaust poem to sell lingerie. Yikes! Thanks for clarifying.

  8. June 9, 2007

    hee hee. i don't watch much teevee, but i knew you'd made up the spoof ads and we've been speaking mostly hypothetically.