Swans Commentary » swans.com March 22, 2010  



The Gray Lady And Copyright Insanities


by Gilles d'Aymery





(Swans - March 22, 2010)  Everyone who is familiar with Swans ins and outs knows that I am adamantly opposed to multi-posting and shun scavengers who for whatever lame arguments steal work from the 14-year-old publication and repost it on their Blogs, social networks, Web groups and sites. This no-multi posting policy is fully accepted by all the writers who contribute their original work, which we carefully edit and publish every fortnight. Over the years, the readers, many with personal Web sites, mailing lists, or their own Web publications, have come to respect our policy, even when not agreeing with my arguments behind it. There are, of course, a few bad apples out there, like the one Peter Byrne tackled recently, and which I track down whenever possible, but by and large decent viewers and readers (and most people are indeed decent) abide by the rules. The flip side is that I too have to abide by the same policies and make sure that any short excerpt of someone else's work is fully documented and attributed; and since Swans pieces are all copyrighted I am particularly attentive to the copyrights of other authors, which can lead to ironic situations as my recent experience with The New York Times (NYT) shows -- and demonstrates how rotten and broken copyrights laws are.

Isidor Saslav, the violinist and retired concertmaster who writes about (mostly) the World of Music for Swans, filed a contribution in which he cited verbatim and in full a 2005, 934-word New York Times article by Anthony Tommasini, "Long-Nosed but Handy With a Pen and a Song," interjecting a rejoinder in between paragraphs. Isidor felt that Fair Use should make it acceptable. I felt otherwise and chose to ask permission from the NYT.

Isidor did not know the URL of the article. I did a bit of research on the NYT Web site and found it. My intent was to ask permission from the author. I could not locate an e-mail address to contact him and the piece was copyrighted by the NYT. Accordingly, I visited their "contact us" Web page and, following a long list of choices, connected to their "Permission Request" page on PARS, the Publisher's Ancillary Revenue Service. I filled in all the required information, but it was not that user friendly, which led me to add further explanation in the provided spaces. It read:

Other Comment: Mr. Tommasini's review, posted at http://www.nytimes.com/2005/05/16/arts/music/16cyra.html, will be used in a 6,200-word article written by concertmaster (ret.) and violinist Isidor Saslav ( http://www.swans.com/contrib/saslav.html ) and published in two [ultimately three] parts, entitled: "Ruminations on 'Rusalka,' The 'Ring,' 'Cyrano,' and Shreker" Mr. Saslav uses Mr. Tommasini's text while inserting in between paragraphs his own comments in the form of a rejoinder. In the same article, Mr. Saslav includes a review of the same opera by Martin Bernheimer (an old friend of his), which appeared in The Financial Times that same day, May 16, 2005. We've obtained permission from Mr. Bernheimer to use the material as Fair Use. I can send you a draft copy of Mr. Saslav's article if needed for your evaluation.

Content Use: Swans Commentary is a legitimate digital bi-weekly (ISSN: 1554-4915), which has been published ever since May 1996. It has its own entry on Wikipedia. We publish about 10/15 pieces every fortnight. All the works are original material; i.e., they have not been published elsewhere on the Web. We are highly respectful of copyrights and have a policy of no-multi posting. All our authors contribute their work for free, including authors like photojournalist Art Shay, director and critic Charles Marowitz, etc. No one is compensated financially, including this publisher. We do receive a small amount of donations ( http://www.swans.com/about/donate.html ), but certainly not enough to pay for reproduction rights. Accordingly, I'm kindly requesting that you consider waiving your usual fees and allow us to use Mr. Tommasini's article under Fair Use. Thank you for your attention. Yours sincerely, Gilles d'Aymery Publisher/co-Editor Swans Commentary

Three days later, I received an e-mail from a representative of PARS, Lorna Henry. It read:

Hi Gilles,

Thank you for your interest in The New York Times copyright material. Please be advised a fee will incur for the proper permission and licensing, as we are not at liberty to offer any content of the The New York Times per gratis. In regards to fair use, PARS International Corp. does not provide legal advice on behalf of the Publishers we represent. We suggest you seek independent counsel. If you determine licensing is needed, and would like to proceed, I will certainly be happy to accommodate your licensing request.

If you'd like to proceed I will need the following information to provide you with an accurate price quote:

Magazine Title:




Billing address:

Contact Party:

Distribution: (North American or World)

Languages for Print:

Circulation: (please provide a print run for each language)

Selling Price:

I look forward to working with you.


Lorna Henry
PARS International Corp.
253 35th Street, 7th Floor
New York, NY 10001
phone: 212.221.9595 ext. 130
fax: 212.221.1468
email: lorna.henry@parsintl.com

Right there, I knew that Fair Use was out of the question (no retained independent counsel in these quarters) and that I was not going to pay the NYT to use Tommasini's article. Still, I was curious to learn how much they would charge. So, having provided the requested information in the initial Web questionnaire, I replied thus:

Dear Lorna,

Thank you for your prompt response. Could you let me know the $ amount that you will charge. Thank you.

Gilles d'Aymery
Swans Commentary

Two days later, Lorna answered:

Hi Gilles,

I will need you to fill in the information I requested below in order to provide you with an accurate price quote. Thank you.


Lorna Henry | PARS International Corp. | 212.221.9595 ext.130 | lorna.henry@parsintl.com

With some irritation I answered:

I'll tell you, you are not making it easy for the little guys. Haven't you taken one minute of your time and checked http://www.swans.com ?

To your questions:

Magazine Title: Swans Commentary

Edition: Don't know what you mean? date of edition? February 22 or March 8

Publisher: Gilles d'Aymery

Licensee: Don't know what you mean

Billing address: PO box 267, Boonville CA 95415

Contact Party: Gilles d'Aymery

Distribution (North American or World): World Wide Web

Languages for Print: English for digital publishing

Circulation (please provide a print run for each language): Are you kidding me? I have no way of knowing the number of readers from all countries. Overall, in average, about 12,000 readers (according to the site's stats)

Selling Price: FREE

Is this enough? Can you tell me how much you want to charge or am I going to spend weeks to try to find out. I have explained that we are a tiny, non-commercial publication. Have you read my initial post to you guys?

Take your phone. Call me at 707-XXX-XXXX if you need more info.

Gilles d'Aymery

Two days later...

Hi Gilles,

Your rate is as follows:

Magazine-electronic; up to 12,000 recipients; 1 edition; World rights in the English language; article text only: $500.00

Please advise if you would like to proceed.



Five hundred dollars for good sake! Imagine me explaining to our generous donors that one-sixth of the money they sent our way in 2009 to cover our operating expenses was used for, and diverted to, paying the NYT for a five-year-old short piece of little interest but for music aficionados. My answer:


I do not want to proceed. Isidor Saslav will paraphrase the content of the article.

Thank you for your time and consideration.

Gilles d'Aymery

Isidor dutifully and thankfully did paraphrase, with the result published in this issue. (Part Two of his three-part article.)

Let's ignore the ridiculous fee asked for by the NYT -- chances are Tommasini did not get paid that amount for his work and he would quite possibly have given permission to use his piece had I been able to contact him, asking for a right to respond if he considered Isidor's comments questionable. We were not stealing his piece, which was included within a much longer article and served the purpose to comment on his take. We were not going to republish the piece as a standalone, only use it fully quoted and attributed for the creative work of Isidor. These facts alone do not appear to have crossed the mind of Ms. Henry. It's too bad, especially for Swans readers, because Isidor's first iteration was much richer than the end result, and in a sense it's also a loss for the NYT, which would have received positive recognition -- though I suspect the NYT management don't give a hoot about small alternative publications.

However, notice the robotic questionnaire focusing on print re-publishing and ignoring the ways Web-only digital publications work and the different status of those entities, whether they are non-commercial, free of ads, free to read, etc. Instead the questions concentrate on print numbers -- location, language, distribution. They do not consider the difficulties or, rather, the impossibility of measuring actual access to a site and readership of a Web publication. One can guestimate, approximate the number of visitors (or readers) but one cannot come up with a clear result, whatever Nielsen may announce about the "unique visitors" of Web sites. I'll challenge anybody from the NYT to CounterPunch, or any reader, to counter this point. There is no way of knowing. I've been using the Analog statistical tools for years. It may be the most popular log analyzer on the Web. It provides a wealth of information but it cannot provide the accurate number of visitors to a Web site. I can tell you how many pages have been requested per day and the average over a week or 90 days (I only keep my stats over a 90-day period) but I cannot tell you who requested these pages, and neither the NYT nor any other site can. Can tell you the visits by country but can't tell you if these visits are from unique visitors. Can tell you the number of distinct hosts served (IP addresses) but can't tell you who used these hosts -- and IP addresses are more often than not dynamically attributed. Can tell you that in January 2010 Swans pages (not including non-text files like pics, etc.) were requested 312,865 times but again I can't tell you the exact origin of these visits. Can't count the visits by Web crawlers either... Of course, no one can account for the cached pages kept on service providers' servers (or even one's own computer for that matter)! And on, and on, and on. Even the counter that's appended at the bottom of the front page does not reflect a clear picture. The same individual may visit the front page more than once. Each time the visit will be recorded, but it only records people who get in through http://www.swans.com/. It does not record people who enter through http://www.swans.com/main.shtml, or http://swans.com/. Quite a few do. They are not recorded on the front page. In other words, the claim of "unique visitors" is utterly bogus. So, when asked the number of readers I could have answered any number, really.

Ms. Henry took none of these issues into consideration when she rendered her queenly decision -- "$500. Please advise if you would like to proceed." The actuality that all the work on Swans is contributed gratis pro Deo, offered free of charge, without any income from ads, was simply disregarded. Bureaucracy and corpocracy reign.

Corporate copyrights stifle creativity and are blood-sucking leeches, especially in the realm of writing (I would treat music, movie, and software copyrights to a different standard). Corporate interests and profits must be fought tooth and nail -- though this is easier said than done (they do have the lawyers and the Court on their payroll). What we need to move toward is a system based neither on profits nor on copyleft, but on the concept of copynorms in which social norms take precedence over either profits or anarchy.

This said, it remains that lifting an entire article and republishing it on a different Web site or print publication without the written authorization of its publisher and author is nothing other than stealing -- an act that must be shunned on a moral and ethical basis.


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Gilles d'Aymery on Swans -- with bio. He is Swans' publisher and co-editor.   (back)


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Swans -- ISSN: 1554-4915
URL for this work: http://www.swans.com/library/art16/ga279.html
Published March 22, 2010