An Open Letter to Myra Borshoff Cook, Tour Organizer for Jack Kerouac’s On the Road Manuscript Scroll

On the Road Manuscript, #3
Jack Kerouac’s original manuscript of “On The Road”

Dear Ms. Borshoff Cook:

Recently I wrote an article expressing my displeasure over not being able to photograph Jack Kerouac’s classic manuscript “On the Road,” currently on display at the San Francisco Public (sic) Library. The current owner of the document, Indianapolis Colt’s owner Jim Irsay, has publicly stated his opinion that the scroll “belongs to the people.” Still, irrespective of this “belongs to the people” assertion, you, as the organizer of the current tour of the scroll, apparently have decided not to allow photography of the document.

You have responded to my original article claiming that although Mr. Irsay owns the manuscript, he does not own the “copyright” to On The Road. This argument is hollow and does not ring true and well wouldn’t Jack be proud. You go on to say that “therefore,” you “had to work with the lawyers representing the holders of the copyright and that is why the photography policy was set.” That’s good information to consider, as I’m sure Jack would have been sure to consult with the attorneys of the railroad cars that he would hop back when he was alive.

Your copyright argument is flawed. I’m not sure how familiar you are with cameras these days, but as a photographer I can assure you that as the scroll is presently displayed, no one would be able to take more than a snippet of text, and only with a macro lens at best. You cannot shoot the words of the scroll clearly underneath the plexi-glass that you have over the document and to shoot through the glass would require sitting a lens on the glass which rests less than a foot from the document itself.

Although you cite “copyright” as your objection I would remind you of the general concept of “fair use,” Nolo Press has a nice write up on it. “Fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. The fair use privilege is perhaps the most significant limitation on a copyright owner’s exclusive rights.” Further, taking snippets of text from copyrighted materials and quoting them is in fact fair use.

On the Road Manuscript, #2

As you are well aware, it would be difficult if not impossible to copy large portions of the text of this document. Further, someone possessing photographs of the document still in no way reduces the copyright holders rights. The copyright on this document is not on the document itself but on the words contained therin. It would be no different than if I quoted from a paperback version or took a photograph of a paperback version of Jack’s classic text.

So in the spirit of fair use I have decided to disregard your and the San Francisco Public Library’s “no photography” policy and have in fact taken photos of your closely guarded scroll that per Irsay “belongs to the people.” As I’m sure Jack didn’t heed the no jumping rail cars signs I’ll also disregard your “no photography allowed” signs. If, as you suggest, your copyright argument holds I’m sure that I’ll be hearing from your lawyers shortly regarding my illegal use of copyrighted material. That’s what I thought.

On the Road Manuscript, #1

Ms. Borshoff Cook, you have been entrusted with running a tour of one of the great pieces of literature of the written English language. Even more significantly *how* it is written is of great historical import. This document deserves to be shared beyond the confines of a small room in a basement of the San Francisco library. This document deserves to be shared with everyone online. They deserve to see the time worn type and corrections that Jack made to his document to get a sense of the historical uniqueness of it. Rather than allow the public an opportunity to share in this experience, you position weak copyright objections which don’t hold up. Are not most books and documents in the San Francisco Public library copyrighted? In fact is not their own copy of the book “On the Road” back in their shelves copyrighted? And yet I see no sign there prohibiting me from taking photos of the actual book, or any other book in the San Francisco Public Library.

Jack Kerouac On the Road Manuscript Display at the San Francisco Public Library -- a Forbidden Photograph

Your prohibition against photographing Jack’s great work is more about a misguided sense of intellectual protectionism than anything. It is contrary to Jack’s spirit. It flies in the face of Irsay’s claim that Jack’s document belongs to the people, and it is unfortunate that our own San Francisco Public Library has capitulated to your weak argument for copyright protection and have done the public a disservice in closing off a historic document that should be shared beyond the confines of the current tour.

Oh and San Francisco Public Library, thanks for the free wi-fi, I just shot these shots and now I’m publishing them from your wi-fi connection here on the 5th floor.

Yours Truly,

Tom

cc: Electronic Frontier Foundation

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24 Comments

  1. Nate says:

    You tell them, Tom!

  2. Ray says:

    Excellent!

    The photos sent chills down my spine. I’ve been thinking about going down there to photograph the exhibit for a few weeks. How disappointing it is to find out that “copyright” trumps art appreciation.

    Jack is rolling in his grave, no doubt.

  3. zoe says:

    I think I love you.

    very nicely done!

  4. Anonymous says:

    OMG somebody just got rocked

  5. Anonymous says:

    I agree it is sad to limit photographs of so great an object of Americana. However, your explanation of copyright law is flawed. Jack has not only a copyright in the words which you can certainly reproduce in small proportions for critcism or study, he also has a copyright in the design of the text on the page. All that is required to create copyright in a work is a “modicum of creativity” (See Feist v. Rural Telephone). The fact that Jack used a scroll instead of pages and that he chose to XXXX someplaces and —- others is probably sufficient to raise copyright in the scroll itself as a piece of art. (Note how many of your posters have raised the idea that this scroll is a piece of art). Based on that alone, you have violated a copyright. Moreover, the owner of the copyright could easily photograph and sell posters of the scroll (this would be a derivative work), therefore you have caused financial harm to the owner. Your blog then goes on to suggest that others do the same, this is inducement to copyright infringement (the thing that Grokster just lost in the Supreme Court for doing). Copyright law is very far reaching – much further than you would think at first glance. If you don’t agree with the law, by all means lobby to change it, but I don’t think spreading mis-information about copyright will benefit anyone.

  6. Anonymous says:

    financial harm? this is crazy. a small excerpt from the scroll, posted on the web, is *at least* as likely to introduce a new audience to it that would like to purchase posters showing more substancial passages, at a much higher quality, as it is to turn potential buyers off. and we’re also talking about potential, hypothetical financial harm here; also, causing someone financial harm is not illegal per se, much less criminal. finally, it is considered fair use to use excerpts for purposes of criticism and parody. if a current work is criticised or parodied a lot, people might be informed of its inferior quality and buy less copies of it. or they might just as well buy more, so they can make up their own opinion. so while such actions *may* cause financial harm, they are protected nonetheless. maybe copyright law doesn’t go as far as you think …

  7. Anonymous says:

    Christ, your’re a whiney little cunt.

  8. dharma bum says:

    This sounds like more from the Sampas family, the family of Jack’s last wife who ended up with ownership of his estate. They are fiercely protective of everything they own, except when they want to auction it off and make a bunch of money.

    I’m not terribly educated about the issue, but I do know that Jack once wrote that he “didn’t want a penny to go to my wife’s hundred Greek relatives.” Which it does. It all goes to them.

    You might contact Jack’s biographer Gerald Nicosia about this, he has been in perpetual battle with the Sampas clan over his attempts to write about Kerouac. I believe he’s in SF too.

  9. Anonymous says:

    Not sure about exact legal situation, but here in the UK, the copyright law specifically allows photographing artworks that are on public display. From the 1988 Copyright Act:

    62 Representation of certain artistic works on public display
    (1) This section applies to –
    (a) buildings, and
    (b) sculptures, models for buildings and works of artistic craftsmanship, if
    permanently situated in a public place or in premises open to the public.
    (2) The copyright in such a work is not infringed by –
    (a) making a graphic work representing it,
    (b) making a photograph or film of it,
    (c) making a broadcast of a visual image of it.
    (3) Nor is the copyright infringed by the issue to the public of copies, or the
    communication to the public, of anything whose making was, by virtue of this
    section, not an infringement of the copyright.

    Besides, even if it wasn’t for this clause then it would be permissible anyway under “fair use” / “fair dealing”.

    Emil

  10. fishpatrol says:

    I do think that it’s a shame that they’re trying to prevent people from participating in this piece of art, both the original text and its physical form, though I don’t think inflammatory open letters are the best way to encourage change.

    I also don’t think a small-section photograph is what we should hope for, either. Imagine making a hi-res scan of the whole roll into a Google Map, which you could scroll through and zoom in and out of and annotate. That’d be a great academic tool and a great use of available technology which could bring in real money for the copyright owner (if that’s their only interest).

    If the copyright owner wanted to do that and charge for access to it, all I could complain about might be the price. What’s most frustrating for me is when access is restricted to being in an item’s physical presence. Not that that’s an excuse to break the law. But it’s sad when people claim copyright to limit access but then don’t work to give people access through legal means, however they think of them.

  11. Anonymous says:

    any photos taken of the scroll, or indeed any photos that fit into a very loose definition of “beat generation” can be added to this flickr group
    http://www.flickr.com/groups/thebeatgeneration/discuss/169809/

    thanks.

  12. Ian says:

    Beautiful photography, dude. Way to stick it to them. It’s good to see someone call “bullshit” and do what’s right.

    The fact that people employ lawyers with the specific intent on bending or “interpreting” various laws to serve their own ends, rather than to serve the public good (which is what law is generally meant to achieve) is repugnant at a basal level.

  13. Anonymous says:

    Hiya, my name is Lena I am not anonymous and I’m gonna say three things.

    Firstly, as the copyright holder of the photographs you’ve taken you hold the rights to them. Are you going to giving the photos you took guerilla style a creative commons some rights reserved kinda license?

    Secondly, it sounds like the UK has better copyright law than here. I understand fair use to be very shady area, where one must not dwell to long for the danger of goblins.

    Thirdly, the idea of the scroll as a piece of art and as holding a copyright is interesting. It is possible that Jim Irsay owns duplication rights on the piece as a piece of art, but it is also possible that he doesn’t and that the copy right on the piece is held by someone else (such as the estate) or possible by no one at all.

    I assume there is no copyright on the scroll itself (doesn’t seem Jack’s style). And as it was crafted before 1978, I am curious if it as a piece of art, not as literary fiction, could have fallen into the public domain similar to how Romero’s classic Night of the Living Dead fell into public domain due to the lack of copyright notice when publishing it.

  14. Anonymous says:

    Am I the only one who is upset because I cannot properly read Tom’s opening letter? Some kind of ad for XML or something is blocking the entire right side of the posting — and I cannot seem to find a way to “close” the stupid thing!!

  15. Thomas Hawk says:

    Anonymous. Sorry about the formating issue. I’m not very good with HTML. I’ve got people who are going to help me look at my blog formating shortly.

    Can you try opening the browser all the way on the page?

  16. M says:

    I’m a little late to the game on this (I’ve been away from the blog for awhile), but there seems to be another problem with the “Copyright” argument aside from those you have already raised. The tour/library is publicly displaying the same portion of the work that you would photograph. If it is an infringement of the copyright for you to photograph that portion, it would be a similar infringement for them to display it.

    Of course my point is lost if in fact the tour/library/whoever obtained permission to actually display the text from the actual copyright holder(s) (who I doubt is Jim Irsay).

  17. Poetslife says:

    If the National Archives, who know something about preserving manuscripts, allow researchers to photograph at their secure facility, why not Kerouac’s On the Road?

    I was just at the National Archives II in College Park, MD, doing research on my MIA uncle, Frank Curley, going through the 11th Bomber Group’s records.

    http://poetslife.blogspot.com/
    2005_12_11_poetslife_archive.html

    Next to me was a PhD student from Japan shooting hundreds of photos. All around me there were dozens of researchers (mostly Asian because from what they told me China and Japan do not allow access to their archives so they have to come here), taking hundreds of photos.

    The National Archives must know something those who control the On the Road manuscript do not. Maybe they can contact the Archives and see that it is harmless.

    More importantly, such a work needs to be put into a digital format to be preserved for future generations, and taking pictures of all of it is a start.

  18. unwr1773nlaw says:

    Your anger at Mrs. Borshoff Cook is wildly misplaced. You’re suggesting that she not only neglect her duties to her client, but that she forego all copyright legislation and take all responsibility of the consequential violation upon herself and her client. You’re “open” letter doesn’t stick it to the man at all. In fact, it doesn’t even address the man. It addresses an event organizer who was following “the man’s” law. If you want to stick it to “the man”, maybe you should address the law instead.

    For those suggesting that copyright law “trumps art appreciation”, you clearly haven’t had to deal with displaying art in the public domain. When artists lose original works to people mass-reproducing them in areas where copyright law holds little to no sway, they lose both livelihood and ownership of their own work. Sure, Keroac is dead, but ownership and livelihood still remain for the copyright holder.

    Since the scroll hasn’t extended past the age of public domain, it doesn’t fall under open copyright yet.

  19. tom b says:

    you speak of jack as if you knew him. shouldnt you people be glad that you even get to see the scroll. suppose it was bought by someone who kept it locked in a safe. you would never even get the chance to see it let alone photograph it. must you take it for granted?

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  24. Alenthas says:

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