Kelli Marshall

Instructor at DePaul University

When Your Scholarship Goes to Court

Full kelly

Image by Rocío Garro, Creative Commons

I do research on Hollywood song-and-dance man Gene Kelly. I study his work, his star image, and his fandom. Last year, I was sued for my scholarship.

In 2015, I signed a contract with the University Press of Mississippi to edit a collection of Gene Kelly's interviews, spanning nearly 50 years. My book would be part of a longstanding series of collected interviews from respected filmmakers like John Ford, Alfred Hitchcock, Martin Scorsese, and Spike Lee. Lest anyone forget, in addition to being a bankable Hollywood star, dancer, and choreographer, Gene Kelly was a director (and co-director) with nearly 20 films and television specials under his belt.

When you compile a collection like this, you must get permission from those who own copyright to republish the original work — be it a poem, short story, essay, or in my case, written and spoken interviews.

Permissions 101: Challenges and Realities

First, securing permissions can take a matter of minutes or hours. Indeed, I almost instantly secured permissions for several of Gene Kelly's interviews, via email and phone calls. The copyright holders were speedy and gracious.

Conversely, the process can also take weeks or months. If the publication in which the original work appeared is now defunct, if the conglomerate who owns copyright has a backlog of requests and/or takes its time responding to yours, or if the copyright holder is deceased, securing permissions can be difficult and time-consuming.

For example, in his 2004 essay, “The Economic Challenges to Anthologies,” Cary Nelson recalls his involvement with Robert Frost's publisher. After five months of trying to secure permissions to include a Frost poem in a poetry anthology, Nelson sent an express mail letter to the publisher saying his press “would reprint the poems (and give a fee of $50 per poem) unless [they] heard otherwise within 48 hours.” Nelson happily reports, “That got a response.” Sometimes unconventional approaches work.

Second, acquiring permissions can be expensive since some copyright owners charge to reprint the material. My academic press allotted a certain amount of money to cover the cost of reprint fees. For example, to include Gene Kelly's interviews in my collection, copyright holders requested amounts ranging from nothing (“gratis”) up to $600 for a single interview. For most of the Kelly interviews, the reprint fees were between $50 and $300.

Third, your publisher’s allotment for reprint fees will likely determine which materials you can — and can’t — include in your collection. For instance, if your press only allocates $2,000 for the cost of reprints and your three “best” texts are $600 each, you won't have much of a collection. In many ways, the permissions process dictates the outcome of your book.

One outcome of the permissions process that I did not expect, however, was being sued.

A Lawsuit Has Been Filed Against You

I was busily seeking permissions when Kelly's widow sued the university press and me for copyright infringement. According to her complaint: “The Plaintiff has been and still is the sole proprietor of all right, title, and interest in and to the copyrights in the Interviews.”

Or as Tech Dirt explained it, “Kelly's widow, who was married to Gene Kelly for the last seven years of his life, claims that she holds the copyright on every interview that Kelly ever did.” If that was the case, then my intent to publish and disseminate Kelly's interviews in a book without her permission would, as Kelly’s widow alleged, constitute “infringement under the United States Copyright laws.”

My collection of interviews was necessarily put on hold. During this time, I continued to prepare lectures and teach my classes. I graded quizzes and attended faculty meetings. I dined out with my husband and posted pictures of my cocker spaniel to social media. In short, I assumed a normal life. But — to borrow the words of a fictional grad student who, in a piece of satire (thanks to a reader for pointing this out), was sued for copyright infringement by the J.R.R. Tolkien estate — “the lawsuit consumed my life; it was all I could think about.”

I spent my commutes to and from work answering messages from lawyers rather than (my normal) gazing out the train window. I began to resent the Google Alerts I'd set up for my name when it notified me of new articles on the lawsuit rather than on my scholarship. On Twitter, I witnessed lawyers and law professors talking about my case and the fuzziness of America's copyright laws. In the meantime, my students and colleagues had no idea I was being sued — that is, until our university’s student newspaper featured the headline “Professor Sued for Copyright of Gene Kelly Interviews.” Then the questions came, most of which I could not answer.

Handling It — By Not Smoking Weed

Unlike the Tolkien graduate student, I did not “hole up” in my house and “smoke weed” until “my friends and family thought I'd disappeared.” Instead, I handled the scenario as best I could and was grateful each day for the university press's unwavering support.

Still, I would not wish this experience on other scholars. Should you find yourself in court for your scholarship, I can offer some advice:

  • Do not throw away or delete anything. If your lawsuit makes it to the discovery stage (mine did not), lawyers may obtain “any information that pertains to any issue in the lawsuit.” That includes not only “facts about the case” and “the identity of others who may know something about the case,” but also documents and emails. So do not toss anything case-related in a literal or virtual trash bin.
  • Cease written conversations about the lawsuit. Again, since anything you've written about the dispute could be discoverable, it's best to limit that information. What's not discoverable under the law: information confidentially exchanged between husband and wife, lawyer and client, doctor and patient, and religious adviser and advisee. Those relationships are “given a special legal protection known as privilege.”
  • Seek out potential helpful organizations. You're an academic. Use your research skills and make yourself aware of organizations that, depending on the charges brought against you, could potentially assist you and your case, e.g., the American Association of University Professors, Stanford University's Fair Use Project.
  • Surround yourself with supporters. Even though you may not be able to share legal information with your friends, family, and colleagues, having them around during this time is crucial — for normalcy, for encouragement, for levity.
  • Realize you might be in a David-Goliath situation. If you're involved with the family estate of a celebrity or a famous creator (as were I and the Tolkien grad student), you may have to come to terms with the mismatched situation in which you find yourself. As Rebecca F. Ganz points out in "A Portrait of the Artist's Estate as a Copyright Problem," most family estates "have the money to litigate just to protect the image of the deceased" while scholars, who "rely on the text or the creative work in question just to continue their work," often do not. Indeed, sometimes you have to know when to bow out of certain projects — and redirect your scholarship, as I've done.

Four months after I was sued, the judge in California granted our motion to dismiss the lawsuit. Despite the judge's ruling in our favor, I chose not to move forward with the book after realizing I had neither the time nor the resources to endure another potential lawsuit. Even though I know I made the right decision (for me), I regret this for my research. I regret this for academia and the university press. But mostly, I regret this for the fans of Gene Kelly.

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