[L]et’s start with a simple example inspired by a wonderful poem by Shel Silverstein (1974) entitled "Smart." The poem is fun as well as brilliant, so if you have a computer nearby, we suggest that you type "Smart" and "Shel Silverstein" into Google and read the poem now.* We will wait for you to get back before continuing.
*Silverstein had personally given Thaler permission to use the poem in an academic paper published in 1985—he said he was tickled to see his work appear in the American Economic Review—but the poem is now controlled by his estate, which, after several nudges …, has denied us permission to reprint the poem here. Since we would have been happy to pay royalties, unlike the Web sites you will find via Google, we can only guess that the managers of the estate (to paraphrase the poem) don’t know that some is more than none.
Some thoughts: (1) This is a broken system. (2) Are Thaler and Sunstein inducing infringement? (3) Thaler and Sunstein, on the next page, immediately recount the plot and structure of the poem; given that Silverstein uses pretty basic language, there’s a lot of language overlap. This is not to suggest that Thaler and Sunstein infringe—to the contrary. It goes to the question whether copying the poem in the context of an analysis of apparently irrational economic behavior should even count as infringement, or at the very least should be fair use, given that the purpose of the book is so different from the purpose of the poem.