Grant Me the Serenity to Walk in the Footsteps of Giants: Authorship Disputes with Christian Prayers

For those looking for information about a movie that involves a certain Chinese symbol that is derivative of Cowboy Bebop — sorry! But there is another interesting Serenity story — the disputed authorship of the well-known Serenity prayer. And lest one Christian prayer dispute be not enough, walk further through this post to Footsteps.

You have likely heard — or read the Serenity prayer, in an AA meeting, on a poster, or in a self-help book.

But now Fred Shapiro, a law librarian at Yale and author of the Yale Book of Quotations, has called into question the common knowledge about the authorship of the prayer in an article in the Yale Alumni Magazine. (News coverage by Laurie Goodstein in both the New York Times and the International Herald Tribune)

He says that while Reinhold Niebuhr is the acknowledged author, searching through historical documents has led to two possibilities:

The extensive pre-1943 documentation I have found, none of which refers to Reinhold Niebuhr, is subject to two interpretations. One is that Niebuhr wrote the Serenity Prayer in the early or mid-1930s, it quickly disseminated through religious and other circles with the author’s identification largely forgotten, and the database occurrences are traces of that dissemination….

I think the second interpretation is more likely: that the prayer was indeed “spooking around for years” and that Niebuhr unconsciously adapted the Serenity Prayer in the early 1940s from already-circulating formulations of unknown origin.

In response, Reinhold Niebuhr’s daughter, Elisabeth Sifton, and author of The Serenity Prayer: Faith and Politics in Times of Peace and War states

To decide on a text’s authorship, one needs to understand its meaning and its historical context, and I am not sure Mr. Shapiro does. To me, his new discoveries simply suggest that in the years before World War II, Reinhold Niebuhr’s voice reached many more American churches and organizations than we previously realized …

Mr. Shapiro’s working premise for his research on the Serenity Prayer seems to be that we must find out just who first spoke or wrote it in the public record, because that person is more likely to be — or to be near — its true author. But, as I’ve said to him before, this is not necessarily the right way to go about looking for prayer authors. Prayers are presented orally, circulate orally, and become famous orally long before they are put on paper. Pastors and congregants use them in worship, recall and even misremember them, think about them for years before they are printed. That is why common, i.e., shared, use is one criterion for establishing a text, no matter who may have originated it — though that still matters.

The authorship debate about the Serenity prayer has remained reasonably friendly by remaining academic, but the uncertain authorship of Footsteps has included many claimants to original authorship.

In an article in Poetry Foundation Magazine, Rachel Aviv discusses many of the various authorship claims to Footsteps, the well-known prayer poem that has been widely reprinted. The claims of several people who claim to be the lone author contrast with “popular knowledge” that the author is anonymous.

Aviv states

Carl Jung argues that it’s impossible to know for certain which ideas are one’s own. “Our unconsciousness . . . swarms with strange intruders,” he writes. He accuses Nietzsche of unwittingly copying another’s work, and urges all writers to sift through their memories and locate the origin of every idea before putting it to paper: “Ask each thought: Do I know you, or are you new?”

In the realm of Christian poetry, the process of distinguishing which ideas are original is significantly harder—the same body of collective epiphanies has been passed down for years. When artists open themselves up to the inspiration of the Lord, it’s not surprising that sometimes they produce sentences that sound as if they’ve been uttered before.

Focusing on singular authorship in these circumstances seems wrong — whether the other contributor is direct divine inspiration or indirect divine inspiration through the words of others. Perhaps these works did indeed have only one author — in the sense of expressing those ideas using those words. However, both have entered the public cultural experience without such attribution.

Once again, the difficulty in proving authorship of common cultural items is a reason to limit copyright terms. Whether it is these prayers or Happy Birthday to You, when shared cultural experiences become common, we treat them as if they already are in the public domain.

Code of Best Practices in Fair Use for Online Video released by the Center for Social Media

The Center for Social Media has posted their Code of Best Practices in Fair Use for Online Video (16 page PDF Report). This Report is a follow-up to the Center’s study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, that suggested strongly that remix culture is not only socially acceptable, but should also be legally acceptable because transformative reuse falls within the fair use exception/defense to copyright. Helping to shape fair use through best practices rather than through case law is such a good idea and the best practices were well-crafted by its committee (including such heavy hitters as Henry Jenkins, Rebecca Tushnet, and Anthony Falzone).

So why the need for best practices for online video fair use?

video creation and sharing depend on the ability to use and circulate existing copyrighted work… As practices spread and financial stakes are raised, the legal status of inserting copyrighted work into new work will become important for everyone.

It is important for video makers, online service providers, and content providers to understand the legal rights of makers of new culture, as policies and practices evolve. Only then will efforts to fight copyright “piracy” in the online environment be able to make necessary space for lawful, value-added uses.

…the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture; at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary or greedy.

…Copyright law does not exactly specify how to apply fair use, and that is to creators’ advantage. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.

The types of uses considered in the Best Practices are (and there is much more in the Report):

ONE: Commenting or Critiquing of Copyrighted Material

Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. …the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant. [But] the new use should not become a market substitute for the work (or other works like it).

TWO: Using copyrighted materials for illustration or example

It is fair [use] when video makers are not presenting the quoted material for its original purpose but to harness it for a new one. [But to] the extent possible and appropriate, illustrative quotations should be drawn from a range of different sources; and each quotation (however many may be employed to create an overall pattern of illustrations) should be no longer than is necessary to achieve the intended effect.

THREE: Capturing copyrighted material incidentally or accidentally

Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent, as part of the final version of the video.

FOUR: Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon

Fair use reaches its limits when the entertainment content is reproduced in amounts that are disproportionate to purposes of documentation, or in the case of archiving, when the material is readily available from authorized sources.

FIVE: Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion

When content that originally was offered to entertain or inform or instruct is offered up with the distinct purpose of launching an online conversation, … a fundamental goal of the copyright system—to promote the republican ideal of robust social discourse—is served.

SIX: Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

The recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended. If a work is merely reused without significant change of context or meaning, [or “where the juxtaposition is a pretext to exploit the popularity or appeal of the copyrighted work employed”] then its reuse goes beyond the limits of fair use.

This is an significant report — and there is much meaty goodness — but the impact is unknown. Will these Best Practices have the same impact as the Center for Social Media’s Best Practices for Documentaries? I previously was concerned about the idea of best practices for remix culture:

I’m unsure about how [best practices] would actually work. The standard for best practices is documentary filmmakers. I’m not sure how much agreement different types of content makers and stakeholders will have in determining what types of uses are truly transformative.

I am still wary about how content owners will act in response — but this is a important step in ensuring fair use continues to be a balance to copyright.

Child’s Play?: The impact of copyright on children

On Gamine Expedition, Sara Grimes writes about the Harry Potter lawsuit differently than I’ve seen before (or the economic production /fan labor issues that I’ve written about) by focusing on how traditional intellectual property analysis ignores the impact of copyright on children:

What troubles me about the Harry Potter lawsuit is that … the object under dispute is nonetheless children’s culture. I doubt anyone, especially J.K. Rowling, would ever go after a child for appropriating her text…though I’m not so sure that this would necessarily extend to the unlikely scenario of a child attempting to publish these appropriations for profit.

But the fact remains that these discussions, lawsuits, and (potential) copyright expansions are taking place within the realm of kids’ culture, which will surely have an impact on how this culture develops, what space is allowed for UGC in the future, and how kids’ perceive what’s allowed and not allowed when it comes to branded characters and stories. I doubt there are many Harry Potter fans – of any age – who haven’t heard by now that if you write fan fiction about Harry Potter, you could get sued, or at least make J.K. Rowling very upset with you.

Pushing copyright norms onto kids has now become our norm — see the Word Intellectual Property Organization’s kids copyright guide (PDF), Copyright Kids, the now-defunct Canadian “Captain Copyright”, and MPAA-sponsored Copyright Badges for scouts.

I have heard multiple lawyers publicly state that they knew they were sending cease-and-desist letters to eight-year olds — and they believed this was needed to serve their clients. These actions are taken despite the fact that most of the fanworks created by kids are done with extreme reverence to the source material. Yet this reverence plays no role in the determination of “fair use.” Perhaps adults should “know better,” but the play of children should not be subsumed within our concern about copyright.

The most popular song for birthdays, “Happy Birthday” and hence part of the life experience for the vast majority of English-speaking children, is either copyrighted or no one has been capable of taking on its corporate overlord to prove its public domain status. Henry Jenkins has written about the previous copyright debates involving Harry Potter fan culture.

Sara continues:

I … think that when we’re dealing with kids, this issue of appropriation and fan culture becomes even more complex. … Examples of how kids’ themselves incorporate media characters into their everyday lives include everything from role-playing Spongebob and Patrick, to drawing pictures of Pikachu.

And … creative appropriation [is studied] as an important way that kids make sense of the media presence in their lives, as well as engage with the larger culture, challenge dominant ideologies, co-produce a shared culture with other children, etc. …

When children create and play, they traditionally have not needed to think about the starting point of their creativity — whether it is jump rope rhymes (remember Miss Mary Mack?) or where the backstory of the Knights of the whatever came from. As I said, “Reworking or redoing the culturally significant works of others has been an important part of children’s play for forever; after all, what else are nursery rhymes? Children still sing a song about the Black Plague!”

But now that so much of children’s lives are branded, intellectual property plays a large role in shaping the limits of child’s play. While there are many works that technically aren’t copyrighted, how many children would know about non-Disney versions of Snow White, Cinderella, Peter Pan, and the Little Mermaid (spoiler: in the original, she becomes a helpful ghost) ? Or more disturbingly, about cultural significant figures (not just “Disney princesses”!) historical figure Pocahontas and possibly historical person Mulan? Has anyone been to a U.S. zoo where entire species of animal have not been referred to by children and their parents as simba, timon, pumbaa?

Sara concludes:

I also think that legal systems (such as copyright) can be and are increasingly used to limit, contain, rationalize and commercialize kids’ culture. And this happens in a variety of ways – through the elimination of opportunities to generate content, or by placing restrictions on what and how that content is generated (limiting freedom of expression and undermining children’s agency); through corporate claims of IP ownership over child-generated content and submissions; and by teaching kids from a very young age a corporate reinterpretation of copyright law…ignoring fair use and obscuring the principles upon which copyright was based in the first place.

As these practices become the industry standard (and in fact begin to be programmed right into the design of online games and environments), the space for children to appropriate, manipulate, subvert, make sense of and have some sense of ownership over their shared culture becomes increasingly scarce, increasingly threatened.

With an increased focus by many media companies on online games for children, the issues Sarah raises become even more important. Should ten-year olds be expected to read and understand terms of service, and not break down in tears when their creation is changed or deleted?

As Izzy Neis states

it should never be a ‘no duh’ moment when you (the user) are made to feel empowerment because you built something, then were lead to believe you owned it (in whatever sense – people need to be clear more often), and only discover later on that because of the playground you were in… you have no real rights (you only own it when we say that you own it, you’re in our world now grandma. Step out of line and we crush-a you)…

My favorite of all is Disney’s TOS… they do say … that anything you ever did upon viewing/logging in/participating/breathing at their site/world/existence is their’s lock, stock, and barrel – from your name, to the way in which you may misspell the (teh), etc, etc, etc.

The unclear limits and power dynamics of intellectual property can impact anyone. But should our intellectual property protection serve as a often-highly effective limit to child’s play?