Famed poet and illustrator Shel Silverstein is known for his familiar works of “Where the Sidewalk Ends,” “The Giving Tree,” and “The Missing Piece.” He also wrote the lyrics for “A Boy Named Sue,” performed by Johnny Cash, which won a Grammy in 1970.

Joseph Thomas has spent the past five years drafting a biography on Silverstein, but he laments that it may never be published. Thomas cites issues with receiving permission from Silverstein’s estate to quote just a few lines of poetry or reproduce small illustrations for the biography. For Thomas and other biographers, such strong copyright protections are an impediment to their work.

When a copyright protects an author’s writings and illustrations, the author’s estate has the ability to grant “permission” for others to appropriate these works while they are still protected. Thomas notes that permission is not always needed, as the fair use doctrine allows for some limited reproduction, but publishers are generally cautious to avoid liability.

When Thomas contacted Silverstein’s estate to get permission, his answer came from “a law firm whose name seemed to come straight out of a Shel Silverstein poem: Solheim, Billing, and Grimmer.” Not only did the firm forbade Thomas from copying any of Silverstein’s works for an article, but also prohibited him from copying any of Silverstein’s works ever despite that Silverstein’s works will begin to enter the public domain in 2051.

Thomas suggests that the estate is hostile towards allowing him to reproduce Silverstein’s works, even for small articles, because Thomas’ piece would discusses not just Silverstein’s G-rated works, but also his poetry aimed at an adult audience. Thomas argues that since estates know scholars need permission to reproduce more than a few lines, scholars must chill their criticism to gain sympathy and ultimately the blessing of the executor.

Despite fair use’s flexibility, its practical limitations are apparent. Though it is unnecessary that authors obtain permission before publishing, the practice of publishers requiring permission has a palpable effect on critics’ behavior. Copyrights are not meant to protect the integrity of the author, but rather only his economic interest. Thus, when a practice chills criticism, which copyrights want to encourage, it raises serious questions about the utility of that practice. A possible solution is stronger fair use protection in biographies that would shield authors and publishers alike from liability.