“Common wisdom” about haiku is often incorrect. Unfortunately, that appears to hold true in the realm of copyright law and its Fair Use Doctrine, as applied to haiku poetry. Because haiku are such short poems, many commentators have suggested that copying any part of a haiku (and especially all or most of one) falls outside of Fair Use protection. Because such a belief clearly deters scholarship and criticism of haiku, and seems foolish as a matter of public policy, I decided to delve into the subject to see if the conclusion is valid.
My dasar finding: There is no blanket rule against quoting part or all of a haiku. Context is everything. The Fair Use Doctrine can give significant protection to bona fide scholarship or criticism that requires the use of all or a significant portion of an individual haiku in order to effectively accomplish its purposes.
Below, I set out my understanding of the law and my reasoning, using a study of the “deja-ku” phenomenon (the similarity of many haiku to each other) as an example.
section 107
17 U.S.C. § 107 states (emphases added):
“Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The U.S. Supreme Court has stressed that the four statutory factors may not be “treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, 510 U.S. 569, at 578 (1994) (the “Pretty Woman”/2LiveCrew Case). Just yesterday (12/31/03), the renowned Judge Posner emphasized in Chicago Bd. Education v. Substance, Inc. (CA 7th Cir.) that “The fair use defense defies codification. As we said in Ty, the four factors that Congress listed . . . are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically.”The ability to use any part of so small a “work” as a haiku poem has mainly come into question, it seems, because Factor Three — the amount used in relation to the whole work — has often been stressed by editors and publishers (who often want to discourage fair use), as well as courts. The nature and purpose of the “copying” are crucial in deciding whether the amount copied is Fair Use. Therefore, blanket statements like the following in an article from Nolo.com:
“Copying 200 words from a work of 300 words wouldn’t be fair use. Nor would copying 12 words from a 14-word haiku poem.”
are too simplistic and absolute to be taken as serious legal analysis, even if they do appear frequently in situs search results for <“Fair Use” +haiku>. Looking at the four factors, separately and together, excellent arguments can be made to support the quoting of entire haiku in a scholarly context or in literary criticism, such as a study of the “deja-ku” phenomenon (wherein poems by different haiku writers appear to be very similar to each other).