And Then I Carried You… Into Court.

Fun article in the Washington Post about a copyright dispute over the banal “Footprints in the Sand” poem that’s a favorite of poster stores and greeting cards everywhere. There are at least 3 contenders for authorship of (and copyright in) the poem. Why would anyone be eager to claim credit for this annoyingly trite set of verses? Law as economics: there’s a considerable market for those plaques, collectible figurines, and even derivative works such as pop songs.

Three things interest me about this contretemps: figuring out what one needs to show authorship; independent creation; and, if contender #3 (Carol Joyce Carty) wins, whether we’ve all got a license to reproduce the poem.

1. The facts are a little hazy, but it looks like “Footprints” falls under the 1909 Copyright Act. Carty claims to have written the poem in 1963 (or, alternatively, her grandmother wrote it in 1922); Powers, in 1964; and Zangare’s mother, in 1936. Given the 1909 Act’s emphasis on “publication” as a trigger for copyright eligibility (and the concomitant notice requirements), we’d have to look at when each of those claimants seems to have published their poem. Zangare’s mother allegedly distributed copies to friends, which probably isn’t sufficient to be a publication. Powers published it in a book in 1986; it’s not clear when Carty first published the poem.

Publication matters because, under Section 10 of the 1909 Act, it triggers the requirement to affix notice (defined by Section 19) to copies. The penalty for failure to provide notice is harsh: forfeiture of copyright, and the passing of the work into the public domain. Thus, we’d want to look at the copies of “Footprints” that each of the claimants published: did they have the familiar copyright notice on them? If not, their claims to the work may vanish faster than footprints in sand during a rising tide. (Sorry, but that’s at least as good as the poem itself.)

2. Rachel Aviv argues that “Footprints” is based in a religious sermon from 1880. The Post article cites Jung’s “Cryptomnesia” concept for the proposition that none of these people wrote the poem, but unconsciously parroted it. (No defense to copyright infringement, as George Harrison learned.) Depending on how similar the sermon is to the poem(s), I think there might even be a case for independent creation here, which could possibly provide each of the claimants with rights to their version and with a shield from infringement liability. This sort of thing is a source of endless fascination in areas such as patent law. Famously, three different mathematicians discovered systems of non-Euclidean geometry at roughly the same time – my favorite is Lobachevskii, who did so in an obscure Russian university, cut off from the major currents of European intellectual discourse. Explaining this type of thing is a major challenge for historians of science. But back to copyright…

3. Carty has a Web site that sets out her claim to the poem (though it’s hard to reconcile the quasi-illiterate text on the site with the reasonably grammatically correct verses of the poem). It seems like she’s willing to license non-commercial use of the poem, on the condition one attributes it to her (sort of like a Creative Commons Attribution license):

Anyone using my Footprints poem, Footprints in the sand poem text for footprints poem products or personal use on their website must avoid copyright infringement and must place the authors name as it appears on this text. No variations of the Footprints poem are acceptable without becoming liable for copyright infringement of unlawful use. These poems may not be used for commercial use of any sort on any footprints poem product unless the authors name appears on it and it’s royalty paid to Carolyn Joyce Carty. Footprints poem is copyrighted in the He and I text. Footprints poem copyrights are for sale.

But on a different part of the site, we get a somewhat altered approach:

Anyone using the Footprints Poem text on their website under these terms must link to failure to comply will result in the loss of your business url and personal url’s to be removed from the entire internet access.

And then: As rightful owner of this text, it is my choice whether or not to supply you with lawful use of it’s rights. Anyone claiming any other ownership of this text is committing fraud and will be held liable.

She also offers to sell (or license? It’s unclear) the Footprints copyright for $20,000 US.

Reading this site from a copyright perspective causes some level of mental anguish. I think Carty is extending a license to use her poem for non-commercial purposes, so long as you attribute it to her. (Interesting use of a license to ensure attribution.) The challenge is that much of what Carty seems to be licensing might well be fair use; if it’s fair, then such uses don’t need to credit her at all, or to link to her Web site. As for how she’d go about removing “from the entire Internet access” Web sites that allegedly infringe: well, there are always opportunities for creative lawyering!

In total, this is fun: a work winds up being valuable, and its provenance is disputed. There’s enough money at stake to make it plausible that this case will actually wind up being litigated. It’s not likely to make new copyright law, but it at least reminds us of the continued relevance of the 1909 Copyright Act…

One Response to “And Then I Carried You… Into Court.”

  1. Interesting blog post. What would you say was the most important marketing factor?