This situation is disastrous for serious scholarship for a number of reasons. Instead of simply writing what our research tells us, quoting what we need to quote, scholars are put in the position of hunting down permissions, a process that can take months. More absurdly, it puts our research and our conclusions at the (not so) tender mercies of the subjects of our scholarship (or, worse, the mercy of their estates). If scholars and critics know we need “permission” to quote a few lines of a poem, a few panels of a comic, a verse of a song, we might—and, sadly, too often do—mellow out what might otherwise be more harsh or unsympathetic assessments. We might modify or neglect certain avenues of inquiry, might hesitate, say, to point out that many of Shel Silverstein’s children’s poems first appeared in Playboy, might not dwell on the fact that a beloved author/illustrator of children’s books wrote and performed a song called “Fuck ’em,” a song that includes the lyrics:
Woman come around and handed me a line
About a lot of little orphan kids suffering and dying.
Shit, I give her a quarter cause one of them might be mine.
Yeah, the rest of those little bastards can keep right on crying.
I mean, fuck kids.
We might steer clear of such controversial material for fear a permission request—or a request to read manuscripts, to visit a private archive, to reproduce sections of unpublished material—could be rejected by the estate should our work contravene its opinion about how an author or his work ought to be represented. (Although that five-line excerpt above should be covered by fair use, if this were an academic press and not Slate, that press would more than likely insist I ask SB&G for permission to reproduce it. You can imagine how that would go.)
My professional difficulties with the Silverstein estate are perhaps unusual—flat-out refusal, in perpetuity, with no given reason: that is, a kind of censorship—but it’s an extreme case that illustrates a problem pervasive in the scholarly world. Other scholars have had difficulties similar to mine. Books and articles on Louis Zukofsky, Sylvia Plath, Adrienne Rich, Philip Larkin, and a host of others have died on the vine as a result of persnickety estates (or difficult artists). (Check out Ian Hamilton’s Keepers of the Flame: Literary Estates and the Rise of Biography for some particularly famous examples.) Other books have survived, but were born hobbled by the lack of quotation. (The scholars involved are understandably nervous about publicizing their fights, so forgive me for being vague.) Similarly, scholarship on Disney, Harry Potter, and Star Wars films, as well as comics owned by Marvel and DC, live out their lives on hard drives, never published, or see publication in adulterated form, a shadow of their author's intent, crucial images omitted and replaced by a weird kind of scholarly ekphrasis. And even if scholars get permission, it often comes with a hefty price tag—a fee paid by academics who write for free.
I could wrap up this piece with the obvious analogy of Big Pharma’s influence on medical journals, point you to that essay in the Atlantic that demonstrates how copyrighted works from the midcentury are disappearing into an Orwellian memory hole, or even lament the power Disney has over our legislative bodies, but instead I’ll end with a question and gesture toward an answer: How legitimate can scholarship be, these days, when scholars cannot point to works of art we find interesting or problematic, troubling or provocative, cannot set our commentary beside the texts on which we comment, cannot enter into serious discussions about important works and their writers without asking permission of those selfsame artists or their moneyed interests?
The public perception of scholarship and criticism is shaped by instances where objectivity has failed. Everybody knows stories of novelists reviewing the work of their friends, poetic rivals going after each other in the press, lavishly illustrated encomiums to this or that artist published with the estate’s blessing. The influence of estates on scholarship tarnishes public perception of scholarship, makes it even harder on most scholars, those who strive for objectivity, strive for honest and thorough discussion of works and artists we find important. And these estates, with the power to withhold permission when one writes what they don’t want written—the power to withhold permission simply because the books are selling just fine, thank you, we don’t need a scholar nosing around and upsetting things—these shortsighted estates not only frustrate scholars, like me, but they fail in their role as stewards of the reputations of artists and writers with which they have been entrusted.
So what’s the solution? Sadly, these practices are so deeply entrenched, so natural to writers and presses and their editors and lawyers and, yes, to estate executors (and their lawyers) that sometimes it seems all writers and scholars can do is mutter complaints to friends. If there is a solution, it requires that more scholars speak up. We need to out presses with too-strenuous permission guidelines (like Wayne State UP, who published my first book: a hard-working publisher of integrity who nonetheless should stand up for academic freedom, for the rights of the scholars and critics who write for them). We need to write essays like the one you’re reading, explain to the public how unreasonable estates can be about policing what’s said about the artists whose legacy they ostensibly curate.
What we have here—if you’ll forgive the military metaphor—is but one front in a larger war against the rigorous analysis of fact. It’s part of a war against the presentation of evidence, a war against thoughtful, good-faith argumentation and conscientious debate. It’s another front in the larger war against truth. Which side are you on?