Fair use vs plagiarism

[Sunadmire]

I'm working on a story where a main character is reading a novel from a book with a hot plot. First on her own, but when her partner-to-be joined her and noticed the book, she read selected hot abstracts out loud to him.

What is Lit's policies of the fair use of text from the published work to weave it into my own work?

I'm currently using about 750 words (out of an estimated 5000), in 15+ fragments. It should be obvious where the copies text was used. I also acknowlede the fact that I used text from the book.

Below is a sample of my current text:

Jim decided to start applying sunscreen lotio at Mary's feet, and worked his way up het leg. He couldn't miss the wet indentation in Mary's bikini bottoms, and his member gave another tuck.

He swiftly reached Mary's tummy and started to work her chest. The temptation got too much for him, and he slipped his fingers in under het bikini's cups. His penis stiffened as Mary moaned and lower the book.

The book's front cover came into Jim's view. It showed the naked back of a woman, who had her hand seductively on the bare chest of a man. A green Chinese hand fan blocked the view below their waists.

“'Passion', by Lisa Valdez? It's an interesting title under the circumstances!” Jim’s voice challenged Mary, emboldened after their earlier exchange and her acceptance of him fondling her breasts. He took hold of her nipples and twisted them.

Alta sighed deeply. “The book’s title isn’t about that kind of passion. It is the name of the heroine, Passion, she was born on Passion Sunday, and her priest father gave her the name, ‘Passion Elizabeth Dare’.”

Jim chuckled. “It seemed from the cover as if someone ‘dared’ her into some passionate actions.”

Mary smirked. “Well, it isn’t as if the book is without that kind of passion. Listen to this.” She opened the first page after the table of contents and started to read, hoping to nudge Steve into more action:

“I have what you need,” he said, his voice rough and urgent. His broad-shouldered frame blocked them from view as his hand slid to her breast. “And you have what I need.”

Steve twisted both her nipples again. “You definitely have what I need...”

Yes.

Alta chuckled. “That ‘yes’ is text from the book, but I agree, you do have what I need.”

The ‘yes’ had barely passed her lips when, with one quick glance over his shoulder, he pushed her behind the huge screen.

His voice came low and quiet. “If you want to say no, say it now.” He shook his head. “Not two minutes from now, not five minutes from now.” With one hand, he slowly pulled free the ribbons of her bonnet. “Now, or not at all."

Jim interrupted her again. “Well, if you want to say no, say it now.” He twisted her nipples and gave them a soft tug. “Not two minutes from now, not five minutes from now.” He pulled the bikini’s bowtie behind Mary’s neck and tossed the top aside. “Now, or not at all.” He looked questioningly at Mary.

Mary frowned and look at him. “It will be ‘no’, unless you have a condom?”

Best regards

Sun

 

[PennameWombat]

I’ll lead off that IANAL. Also, coincidentally I just submitted my Nude Day entry where I have my MMC reading from two books to my FMC. But the books I’m using were written in 1553 and 1569… so public domain. Not under copyright.

The site’s Content Guidelines are clear, you can only submit work for which the submitter (you) owns the copyright. That said, I’m not certain if the site would reject or not. Stories here do occasionally include song lyrics that aren’t public domain and other quotes that likely wouldn’t fly in other sites or in commercially-published works.

But the only person who can give you an answer here is Laurel, you can try to send a PM and see what you get.

I wouldn’t ever consider use in an erotic story as Fair Use. Unless I were intentionally trying for parody,

for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

 

[ElectricBlue]

From the Lit FAQ (emphasis added)

Content Guidelines

We DO NOT publish works of any type featuring the following content: Copyrighted material for which the submitter is not the owner of the copyright, or for which the submitter does not have an explicit license from the copyright owner to publish the work at Literotica.

Furthermore:

Intellectual Property

It is strictly against our terms of service for any Literotica member to publish any work which they do not own the copyright, or have other legitimate rights to publish. If you believe that someone has published one of your works without your permission, please contact us with details so that work can be removed from the site, and the user can be warned or banned.

Laurel will allow a line of two from a song lyric, but pushes back against long extracts. This is fiction, so fair use doesn't apply (it's not an academic citation).

If it were me, I'd use the first quote only - I'd certainly not use 750 words. Even with the actual author acknowledgement, that seems excessive (that's 15% of your story content).

 

[masterslave00]

I’ll lead off that IANAL. Also, coincidentally I just submitted my Nude Day entry where I have my MMC reading from two books to my FMC. But the books I’m using were written in 1553 and 1569… so public domain. Not under copyright.

OK, don't know about erotica, but have published myriad of academic articles - even public domain material must be properly acknowledged, otherwise it is considered to be plagiarism. BTW, lots of academic writing is nowadays in public domain...

BTW, plagiarism and fair use are two significantly different things. See e.g. https://copyrightalliance.org/faqs/what-is-fair-use/ and https://www.ox.ac.uk/students/academic/guidance/skills/plagiarism

 

[AlinaX]

I would think quoting the occasional sentence should be fine, but unless you're writing an essay/review you shouldn't be quoting more than that anyway.

If you're quoting something very well known, then you can trust your readers to have an idea. If it's something obscure, shouldn't you write your own fictional book-within-a-book to quote from?

 

[SimonDoom]

There's no problem whatsoever mentioning the author, the title, and having a character in your story describe the work in question.

There's some gray area about whether quoting a few lines from a book or a song might, in a particular context, constitute a "fair use" and therefore not be copyright infringement. But it's at best a gray area.

Quoting 750 lines seems like a lot. I don't think you can argue that's fair use.

The better course of action is to be conservative. If I were you I would limit quotations to very small samples, and the more conservative path than that would be to skip quotation and just describe the work in your characters' words. This is a workaround that probably will not compromise your story.

Another work around is to come up with a purely fictional (meaning you made it up) story within a story, that perhaps resembles a story you want to use. Then you have no copyright issues at all.

 

[Omenainen]

It’s worth considering why you want to use the book in the first place. If you’re trying to invoke a feeling, why not use something original to invoke the feeling? If you want to have a scene where someone reads a book and is aroused by it, and entwine it with the real time happening in the story, why would it need to be this exact book? Why wouldn’t you invent your own?

Generally speaking, I think it’s always better to use your own ways in conveying the mood and feelings and not leaning on someone else’s work to do the heavy lifting for you. I see this semi often in that authors mention a song, and I suppose I’m then supposed to infer some meaning from that, but more often than not I have no idea what that song or band is about. I think of it as lazy writing. Also, not everyone around here is from the same cultural background so the references people are making are seldom as universal as they think.

 

[PennameWombat]

OK, don't know about erotica, but have published myriad of academic articles - even public domain material must be properly acknowledged, otherwise it is considered to be plagiarism. BTW, lots of academic writing is nowadays in public domain...

BTW, plagiarism and fair use are two significantly different things. See e.g. https://copyrightalliance.org/faqs/what-is-fair-use/ and https://www.ox.ac.uk/students/academic/guidance/skills/plagiarism

Gosh, why don’t you wait until my story appears and you can see the citations for my use of the quotes before you imply I’ve committed plagiarism.

Although you seem to doubt it, I do know the difference between these two subjects, so whether you think I don’t or this is an accusation I’m unclear. If so, I have no idea why. Again, you can’t have seen the story yet. The usage of the sections from the 16th century are obviously called out in the context of the story and are intentionally meant to be reading from somewhere (which is all cited at the end), including the sources and history. James Peele is the author of the original material, if you’re interested.

There’s also the point that use of public domain materials is not covered under Fair Use (at least in the US.) Fair Use only covers materials under copyright.

 

[EmilyMiller]

Fair use vs plagiarism​

I use references to other works left, right, and center. Canonically: “I can kill you with my brain” or “I’ll be in my bunk” from Firefly.

I even used an abridged and adapted version of Marvin’s speech about being abandoned to park spaceships at the Restaurant at the End if the Universe, which I put in the mouth of someone in a similar situation.

But 750 words? That’s not fair use IMO.

Em

 

[Sunadmire]

Thank you for the responses so far.
Some clarification and a correction:
It is 750 words (as per my initial post) not 750 lines.
Also, the work that is quoted has over 50 000 words - which I mistyped to 5 000 words.
750 words would be 1.5%
The book was published in 2005. I stumbled apon it, in my research, when I was looking for the title of a suitable book published in 2005. I subsequently bought the ebook

 

[AlinaX]

750 words out of 50000 sounds a lot more reasonable... but my original response stands. 750 words is a lot to include from somebody else's work, and it would be far better, if you need so much content, to write an extract from a fictional book of the same era.

 

[ElectricBlue]

Thank you for the responses so far.
Some clarification and a correction:
It is 750 words (as per my initial post) not 750 lines.
Also, the work that is quoted has over 50 000 words - which I mistyped to 5 000 words.
750 words would be 1.5%
The book was published in 2005. I stumbled apon it, in my research, when I was looking for the title of a suitable book published in 2005. I subsequently bought the ebook

Ah, the 5000 words was ambiguous. I interpreted that to mean the length of your story, not the length of the source material. Using 750 words though - you can see the consensus.

The age of the book is immaterial. It's still well within the author's copyright.

 

[SimonDoom]

Thank you for the responses so far.
Some clarification and a correction:
It is 750 words (as per my initial post) not 750 lines.
Also, the work that is quoted has over 50 000 words - which I mistyped to 5 000 words.
750 words would be 1.5%
The book was published in 2005. I stumbled apon it, in my research, when I was looking for the title of a suitable book published in 2005. I subsequently bought the ebook

That's still a lot of words. I'll put it this way. From my own POV, as long as you attribute a work the question is less an ethical one than a prudential one, although I think there's some ethical element to consider. Practically speaking, if Laurel lets you get away with it, your chance of being sued for posting a story in this platform is near zero. But if you were offering the story in the commercial publishing world, and the copyright holder found out, and they wanted to do something about it, I think that with 750 words of use they would have a valid copyright claim against you and you would NOT have a valid fair use defense. So, you can do with that what you will.

 

[djrip]

I feel like a line or two, attributed clearly, is reasonable but probably not necessary, and more than that is really pushing it and I don't see the value. As a reader I'd mostly skim over the extracts to get back to the story I was actually trying to read.

 

[MillieDynamite]

If it falls under fair use guidelines (as in it is a small part of a much larger work), the original is cited or credited, but 750 out of 5000 words is beyond the fair use exception. In fact, 750 words out of 50,000 would be a lot. Fair use is snippets, like "Call me Ishmael." Or "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair." Those are from Moby Dick by Herman Melville and A Tale of Two Cities by Charles Dickens. While those are both in the public domain, you still need to cite them, either in the story or as a footnote. But 750 words isn't a snippet. And songwriters are the most aggressive seekers of damages in lawsuits known to man. I know we don't do it, but to post lyrics of a song, one is supposed to get permission for any printed (or digitized) usage.

 

[Euphony]

That's still a lot of words.

For real.

Isn't that like 3 standard pages?

And Lit submissions are rarely 300 page novels.

Also, I'm didn't take plagiarism maths in school but does the length of the work it is stolen from or placed into as much of a factor as some are suggesting?

David Foster Wallace left his thermal exhaust port vulnerable.

I'm gonna look so edjumicated.

 

[ElectricBlue]

Isn't that like 3 standard pages?

And Lit submissions are rarely 300 page novels.

Also, I'm didn't take plagiarism maths in school but does the length of the work it is stolen from or placed into as much of a factor as some are suggesting?

I agree - we don't know the OP's proposed story length, but it's the 750 words that's relevant, not the relative weight.

I should think by now the OP has a fair idea on what this group of writers considers reasonable - way less than 750 words, if any at all. Having read the proposed extracts, there's not much that's astonishingly good in there. I'd go with the suggestions to write your own "book" for the purposes of the story - problem solved.

 

[Bramblethorn]

Thank you for the responses so far.
Some clarification and a correction:
It is 750 words (as per my initial post) not 750 lines.
Also, the work that is quoted has over 50 000 words - which I mistyped to 5 000 words.
750 words would be 1.5%
The book was published in 2005. I stumbled apon it, in my research, when I was looking for the title of a suitable book published in 2005. I subsequently bought the ebook

Don't focus too much on percentages. There's a widespread belief that anything under 10% or one chapter is fair use, but this isn't correct.

Fair use depends on several considerations. The amount used factors in, but the nature of that use is also an important consideration. Part of the rationale for fair use is that copyright shouldn't get in the way of commentary and criticism - e.g. if I want to talk about why I dislike somebody's new bestseller, I should be able to quote from it as necessary to justify my criticism without the author being able to silence me via copyright, and if students are studying that bestseller their English textbook may need to include excerpts to discuss them.

The more transformative a work is, changing its character and purpose, the more leeway it's likely to get. For example, if I were to take action scenes out of a James Bond movie and cut them into my own low-budget action movie to jazz up the action, that's not very transformative - they're still doing much the same thing in my movie that they were doing in the original. OTOH, if I were to take the sex scenes from those movies and intercut them with messages about STI prevention and screening, I'm doing something different with it, which would push the scales a little towards "fair use".

Schools often run on that "10%/one chapter" thing as a rule of thumb, and AFAIK that's worked out for them so far, but it's not a guarantee that you can count on the same rule in a different context.

In this case, you're taking sexy scenes from a story intended to arouse its readers, and using them to beef up sexy scenes in a story intended to arouse its readers. That probably wouldn't be considered very transformative.

In one sense, this question is mostly academic. Literotica stories are small fry and it's unlikely you'd end up ever having to defend it in court. But as much as I dislike IP law in general, I think the fair use concept is one of the better parts, and the reasons for "why this would/wouldn't be fair use" often align reasonably well with "why this would/wouldn't be ethical to do".

 

[MillieDynamite]

In the book and movie, To Kill a Mockingbird, there is a scene where an old, white woman sets on the porch of the jailhouse in order to dissuade would-be lynchers from taking a black man to a necktie party. In the 1948 novel and subsequent early 50s film, Intruder in the Dust, an old, white woman sets on the porch of the jailhouse in order to dissuade would-be lynchers from hanging a black man. Plagiarism? If Haper Lee had to copy someone, who better than the greatest Southern novelist of all time, William Faulkner?

All I know for certain, is Faulkner's work predated Lee's by 12 years. But the wording was exactly the same, just the situation. Falukner's novel was set in his fictional county of Yoknapatawpha County, which was based on Lafayette County, Mississippi where he grew up. Lee's was set in her hometown To Kill a Mockingbird is set in the small, rural town of Maycomb, Alabama, and has a ring of authenticity to it. But then again, so did Falukner's work.

 

[djrip]

In the book and movie, To Kill a Mockingbird, there is a scene where an old, white woman sets on the porch of the jailhouse in order to dissuade would-be lynchers from taking a black man to a necktie party. In the 1948 novel and subsequent early 50s film, Intruder in the Dust, an old, white woman sets on the porch of the jailhouse in order to dissuade would-be lynchers from hanging a black man. Plagiarism? If Haper Lee had to copy someone, who better than the greatest Southern novelist of all time, William Faulkner?

All I know for certain, is Faulkner's work predated Lee's by 12 years. But the wording was exactly the same, just the situation. Falukner's novel was set in his fictional county of Yoknapatawpha County, which was based on Lafayette County, Mississippi where he grew up. Lee's was set in her hometown To Kill a Mockingbird is set in the small, rural town of Maycomb, Alabama, and has a ring of authenticity to it. But then again, so did Falukner's work.

If the words aren't the same, it's not plagiarism, but it could be similar enough to be copyright infringement, which would require a trial and jury to determine for sure if I understand the process correctly. Like vanilla ice and queen. Interesting similarity for sure!

 

[ElectricBlue]

In one sense, this question is mostly academic. Literotica stories are small fry and it's unlikely you'd end up ever having to defend it in court. But as much as I dislike IP law in general, I think the fair use concept is one of the better parts, and the reasons for "why this would/wouldn't be fair use" often align reasonably well with "why this would/wouldn't be ethical to do".

Generally though, that's in the context of a critique, a review, often something academic, where fair-use has a well-defined purpose and precedent (most often associated with learning or professional activity).

In the context of fiction, none of that really applies, so the whole thing is a lot closer to the line. The best advice, surely, is to step back, and ask yourself, how does this truly contribute to my story,? Or are they better words than I can write, so it's okay if I use them, because I want to. It's not as if the book the OP has found is a cultural icon, like a Bob Dylan or Leonard Cohen lyric.

 

[MillieDynamite]

If the words aren't the same, it's not plagiarism, but it could be similar enough to be copyright infringement, which would require a trial and jury to determine for sure if I understand the process correctly. Like vanilla ice and queen. Interesting similarity for sure!

It's difficult to believe that Haper Lee wasn't familiar with Faulkner's work. He was the most famous Southern writer before she was born. Supposedly, Lee's story has at least a kernel of truth in it. It is possible to have an independent story plot point that another writer has used before. It's just so spot-on in the films it's hard to believe there was at least an homage in there.

 

[Bramblethorn]

In the book and movie, To Kill a Mockingbird, there is a scene where an old, white woman sets on the porch of the jailhouse in order to dissuade would-be lynchers from taking a black man to a necktie party. In the 1948 novel and subsequent early 50s film, Intruder in the Dust, an old, white woman sets on the porch of the jailhouse in order to dissuade would-be lynchers from hanging a black man. Plagiarism? If Haper Lee had to copy someone, who better than the greatest Southern novelist of all time, William Faulkner?

All I know for certain, is Faulkner's work predated Lee's by 12 years. But the wording was exactly the same, just the situation. Falukner's novel was set in his fictional county of Yoknapatawpha County, which was based on Lafayette County, Mississippi where he grew up. Lee's was set in her hometown To Kill a Mockingbird is set in the small, rural town of Maycomb, Alabama, and has a ring of authenticity to it. But then again, so did Falukner's work.

The character who sits jailhouse vigil in TKAM isn't an old woman. It's Atticus Finch, a middle-aged white man. I don't recall whether we learn his age exactly in the book, but he's a widower with a six-year-old child; Gregory Peck would've been in his mid-40s when he played him in the film. Still some similarity to Faulkner, but without researching it, hard to be certain whether that's a matter of Lee being influenced by Faulkner or of both of them being influenced by historical events, or some mix of the two.

I'm not sure whether there was a RL case where somebody talked down a lynch mob in that situation, but there were several highly publicised cases where nobody stopped the mob. Charles Bannon, Thomas Shipp and Abram Smith, Jesse Washington for starters; anybody looking those up, please be warned that the details of those stories really are awful and some of them come with photos. The Washington case was particularly horrific and people sold photos of his body. Both Faulkner and Lee would presumably have been aware of it; it's not hard to imagine two people independently thinking "what if there had been somebody there to stand up to them?" and working that into a story. Also possible that Lee read the Faulkner and heard about the RL cases and was influenced by both.

 

[Bramblethorn]

Generally though, that's in the context of a critique, a review, often something academic, where fair-use has a well-defined purpose and precedent (most often associated with learning or professional activity).

In the context of fiction, none of that really applies, so the whole thing is a lot closer to the line.

Picking a small nit: it can apply in fiction. Derivative fiction as critique of the original has a lot of precedent: "Gone With The Wind" retold from the slaves' perspective, Narnia fanfiction as critique of Lewis' attitudes to female characters, etc. etc. I don't think OP's example falls into that category but it can exist.

Without that angle to it, fiction isn't automatically excluded from being fair use but it needs to make a stronger case on the other criteria.

The best advice, surely, is to step back, and ask yourself, how does this truly contribute to my story,? Or are they better words than I can write, so it's okay if I use them, because I want to. It's not as if the book the OP has found is a cultural icon, like a Bob Dylan or Leonard Cohen lyric.

Yup. If it's something you could replace with your own words, usually better to do so; if it's something you can't replace with your own words, worth thinking hard about why not. Sometimes there are valid reasons but often it boils down to "I really like the way this work made me feel, and I want to make readers feel the same way by quoting some of that work inside mine." At that point, there's a problem.

 

[ElectricBlue]

Picking a small nit: it can apply in fiction. Derivative fiction as critique of the original has a lot of precedent: "Gone With The Wind" retold from the slaves' perspective, Narnia fanfiction as critique of Lewis' attitudes to female characters, etc. etc. I don't think OP's example falls into that category but it can exist.

Point taken - Neil Gaman's The Problem With Susan comes to mind.