There’s something amusingly through-the-rabbit-hole about reading a discussion of What We Talk About When We Talk About Love that’s written in legalese, as Matthew J. Nelson does in a piece published last year in the Cardozo Public Law, Policy and Ethics Journal. (Apparently it’s only drifted online a few months ago.) “Publishing Raymond Carver’s “Original” Stories as “Fair Use” (click on “One-Click Download” for a PDF of the paper) covers the long-running effort led by Carver’s widow, Tess Gallagher, to publish the What We Talk About stories in their unadulterated form, before editor Gordon Lish reshaped them. (And, inarguably, improved them.)
Nelson’s article was apparently written and published before the matter was more or less settled—the pre-Lish stories were published last year as “Beginners” in the Library of America’s collection of Carver’s work. (Gary Fisketjon, who was Carver’s editor before his death and who has protested Gallagher’s efforts to publish “Beginners,” now seems content to agree to disagree.) Legal experts can make more of Nelson’s paper than I can, but he basically seems to argue that the publication of “Beginners” qualifies as fair use because it now serves as a resource for commentary on the original work:
With regard to the more interesting question of whether Carver’s estate could or should be able to publish his “original” stories, there is a convincing argument for fair use. It is vital to this claim, however, that any potential publication embody the spirit of comment or criticism, which would serve the public interest. Indeed, such a publication could easily be viewed as vital to the study of the relationship of editors and authors or valuable insight into Carver’s style, life and work. As noted above, such a publication would have to be carefully created in order not to supersede or devalue the Knopf version.
The Library of America edition would seem to satisfy that need not to “supersede or devalue the Knopf version,” but, again, I’m not a lawyer. Techdirt’s Mike Masnick, who blogged about Nelson’s paper today, points out that a judge could see it differently: “[As long] as the work is published specifically to comment on the editorial differences between the two — rather than setting itself up as a “competitor,” there’s a much stronger fair use claim,” he writes. “But, as with many fair use claims, it really comes down to a judge deciding how much weight to give the various four factors.”