Fair use vs plagiarism

[XerXesXu]

It’s a subtle but important distinction – there’s transformative (1) and transformative (2).

A copyright holder retains the exclusive right to make derivative, including transformative versions of his copyright work. A work of art has a meaning, purpose and character, and it may even be a purpose beyond turning a buck. Turning a buck is important to many artists. If another artist produces a derivative work of the copyright holder’s work with a view to turning a buck from the original work, that is an infringement unless the copyright holder consents. This can usually be achieved by giving him some money – that’s what he created the work to do, after all. That’s transformative (1). The fair use provisions apply to this type of transformative(1) work.

Then there’s transformative (2). Take the works published on Lit. They have a meaning, purpose and character. By and large, they’re intended to appeal to the prurient interest and to be sex-positive, not to turn a buck. At the one end there’s Romance, at the other there’re vile rapists' fantasies. We can draw a contrast, but not between these two because the extreme rape-positive stories would not be copyrightable, it doesn't apply to obscene matter. But take a, ‘She was leading us on, she knew it, she wanted it really, she orgasmed, she loved it really’ story. That carries with it a really crass and corrupting meaning – ‘They say “No” but they mean “Yes” ’. Let’s assume it falls 1 inch short of the threshold for obscenity. If another author decided to take that story, using the same characters and storyline, with only sufficient change to make it a ‘No means No’, story, it wouldn’t infringe the copyright of the story it was based on. That would be so even if 90% of the words were the same. The meaning and purpose of the story will have been transformed – transformative (2) - and it will be a separate copyrightable work which doesn’t infringe the copyright of the story it was based on.

The difference between the two is often a matter of degree and very subjective, see the needle between the majority and Kagan, dissenting, in Warhol v Goldsmith.

Unless you have a lot of money, a track record of accurately predicting what the Court will have had for breakfast on the day of trial 10 years in advance and a high appetite for risk, best to avoid treading on the toes of an author who has.

 

[Bramblethorn]

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

Yeah, though I prefer Ursula Vernon's (linked above).

 

[BobbyBrandt]

While not specific to what Laurel would or would not accept, this is timely to the question posed:

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The webinar will cover intellectual property and artificial intelligence issues for romance writers, including a discussion about what a romance writer can protect under copyright and trademark laws and what may not be protectable; the interconnection between AI and intellectual property and how AI may impact writers; how romance writers can best protect themselves and their valuable intellectual property; and intellectual property and AI missteps romance writers should avoid. There will be time for questions and answers."

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Information this important to all romance writers needs to be shared, so please spread the word to your writing friends!

 

[ElectricBlue]

Yeah, though I prefer Ursula Vernon's (linked above).

I think I stumbled across that one years ago, and they sort of merged together in my mind. Thanks for the refresher.

 

[AlinaX]

Yeah, though I prefer Ursula Vernon's (linked above).

Oh, that was nice. I read something else as well about Susan that actually had me in tears. (Oh, this.)

 

[Bramblethorn]

(Apologies to OP for the inevitable thread derailing)

Oh, that was nice. I read something else as well about Susan that actually had me in tears. (Oh, this.)

Thanks for that - I feel slightly more charitable to Lewis after reading that, I wasn't aware of his letters re. Susan.

Not directly Narnia but obviously influenced by it, Seanan McGuire's "Home For Wayward Children" series covers similar territory to "Elegant and Fine" - what happens after the portal fantasy, when children who've found their own personal Wonderlands are exiled back into the real world. Beautiful and heartbreaking.

 

[MillieDynamite]

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.

I'd yield to your memory. I haven't seen TKAMB in forever and a day and about as long as that for the book. I read ITD a few months ago and watched it the other day.

 

[LegendInMyOwnMind]

IANAL, but I'm quite sure that something that is not plagiarism may still be copyright infringement.

 

[KeithD]

because the extreme rape-positive stories would not be copyrightable, it doesn't apply to obscene matter.

Of course such material can be copyrighted.

 

[AchtungNight]

Advice from a fanfic writer- a disclaimer referencing what you are depicting and admitting your homage is helpful. It is also good to keep your references respectful, vague, and obvious to those in the know. Also use transformative parody as protected speech. From this perspective it’s ok to have a character named Scarlett ponder how her lover is someone who needs to be kissed often by someone who knows how. This is a different enough take on Gone With the Wind to count as transformative fair use. Similar depictions are allowed if you wish to write a Scientologist female bisexual ethical slut version of a Christian biblical protagonist as your main character. Keep it a transformative parody, keep it vague for most audiences but obvious to those who can recognize what you are doing. Regarding song lyrics and poetry, use words that back up what themes you are trying to invoke. For my mentioned characters, the songs Saints of Los Angeles by Motley Crue and Hot Hot Riot by Sarah Hudson were appropriate and featured briefly. Same for the Yeats poem The Second Coming and various movies featuring the actresses who inspired my characters. Same deal for their love interests- one of the most problematic love interests for my Sci protagonist was a forgiving Anonymous hacker named Zechariah Metz, Zeck Metz for short. He’s a navigator on a destroyer based on the USS Cole and my heroine has to make peace with him in a Romeo and Juliet situation. Does it work for the story? I hope so. Read Passion 4 from me to decide for yourself. For the character Scarlett, check out Rekindled. For the things referenced in Zeck’s character, consider the origins of his various names and the source of his career inspiration (the original Star Wars movie). More details can be given upon private request. For now- Nuff said.

 

[SimonDoom]

IANAL, but I'm quite sure that something that is not plagiarism may still be copyright infringement.

Yes, they are two different things.

Example:

If you write a story that liberally borrows the text of the story of another author without permission, but clearly attribute the text to the previous author, you have not committed plagiarism, because plagiarism is passing off the ideas or work of another as your own, and you have not done that in this case. But you have committed copyright infringement, because whether or not you give attribution has no impact on whether it's copyright infringement. Proving copyright infringement only requires proof of unauthorized use.

 

[AchtungNight]

Also note the statutes of limitations on copyright infringement. Original author’s life plus 75 years per US law, I think. This makes it pretty much ok to quote the Bible and other literature of a similar age. But still, be ready for fundamentalist trolls to come after you. Regarding the scriptures of younger religions than Christianity, know that religious satire opens all kinds of legal doors- see Hustler Magazine et al. vs Jerry Falwell for a big one. Also helps to be inspired by the founder of said religion publishing an epic adult satirical series as his magnum opus. I may be a squirrel, but my teachers Ratatoskyr and Doreen Green taught me well.

 

[SimonDoom]

Of course such material can be copyrighted.

Agreed. This opinion isn't based on actual law, at least as far as US law is concerned.

1. First, it's not clear what kinds of fiction would qualify as "obscene" under US law anymore. There have been a few rare cases in the last 20 years of people being prosecuted for writing violent pedophilia, but they're rare, and it's not at all clear that the Supreme Court, if it ruled on the issue, would agree. NOBODY can say with any confidence that this or that piece of fiction would qualify as "obscenity" and therefore not be entitled to copyright protection. There simply isn't enough legal guidance in the case law to give anybody any confidence that something would be found to be obscene. People publish stories all the time that contain the most heinous and vile descriptions of rape and murder and mayhem and sexual depravity, and they don't get prosecuted for obscenity. "Obscenity" appears to be almost extinct in the US, at least as far as fiction is concerned.

2. I'm not aware that "obscenity" is a legal basis for denying copyright protection, or that it would be a valid defense against a copyright infringement claim. If you sued somebody for copyright infringement, but they alleged the defense that your story was obscene and therefore not subject to copyright protection, I don't think they'd have a leg to stand on if in fact you were never prosecuted for obscenity for your story. The US Copyright Office has published Circular 33 regarding the kinds of subject matter that are not entitled to copyright protection, and it doesn't mention obscene matter.

 

[KeithD]

Much of my extreme erotica is formally copyrighted in the United States. No question of content came up.

 

[SimonDoom]

Also note the statutes of limitations on copyright infringement. Original author’s life plus 75 years per US law, I think. This makes it pretty much ok to quote the Bible and other literature of a similar age. But still, be ready for fundamentalist trolls to come after you. Regarding the scriptures of younger religions than Christianity, know that religious satire opens all kinds of legal doors- see Hustler Magazine et al. vs Jerry Falwell for a big one. I may be a squirrel, but my teachers Ratatoskyr and Doreen Green taught me well.

True, although the correct term is "term" rather than "statute of limitations." Statute of limitations refers to the time within which you can sue after an infringement occurs. "Term" refers to the duration of the copyright after its creation or publication.

But you are right that you are perfectly free to write perverted versions of Jane Austen and Charles Dickens and Mark Twain.

The copyright on "anonymous works" -- meaning works owned by corporations whose employees provided the creative input--lasts 95 years from publication. So if you want to write a perverted story based on Disney's Steamboat Willie, you'll be able to do so when it enters the public domain next year. But I don't recommend messing with Disney. They have more money than God and they are aggressive and litigious.

 

[SimonDoom]

Much of my extreme erotica is formally copyrighted in the United States. No question of content came up.

That's interesting. I would not have expected you would go to the trouble and expense of doing that for that kind of subject matter.

 

[KeithD]

That's interesting. I would not have expected you would go to the trouble and expense of doing that for that kind of subject matter.

I publish in the marketplace with actual publishers. Obtaining a formal copyright is what most actual publishers do for their auhors.

 

[SimonDoom]

I publish in the marketplace with actual publishers. Obtaining a formal copyright is what most actual publishers do for their auhors.

OK. I forgot. Makes sense.

Plus, the fact that actual publishers are publishing your "extreme" material suggests that nobody thinks there's a meaningful risk that it could be found to be "obscene."

I'm curious if you have ever received pushback from publishers or if they've ever provided you with guidelines about material that might be too legally risky.

 

[MillieDynamite]

Very true.

OK. I forgot. Makes sense.

 

[MillieDynamite]

Disney's characters, Marvel Studios, and DC characters are often portrayed in porn. The respective brands haven't sought legal remedies, in order to not draw attention to the porn industry.

 

[AchtungNight]

Know your prospective publishers also. Test the market when you can to see if you adhere to the spirit of your publishers’ laws vs the letter and which is more important. Not pointing out examples here for obvious reasons. It also helps if you can give your adversaries respect by invoking things like “red team criticism”, “constructive satire”, and “bigger fish to fry.” You can contact me privately for what I mean by all this. For the latter term, Disney is currently distracted by the government of Florida infringing on their interests vs a lone fanfic writer not making a financial profit with his influence. Probably safe to say they’re going after Ron DeSantis before they come after my adult X-Men fanfic. I hope.

 

[MillieDynamite]

OK. I forgot. Makes sense.

Plus, the fact that actual publishers are publishing your "extreme" material suggests that nobody thinks there's a meaningful risk that it could be found to be "obscene."

I'm curious if you have ever received pushback from publishers or if they've ever provided you with guidelines about material that might be too legally risky.

The imprint that publishes my work only requires that I write within the guidelines of Amazon, Smashwords, Barns & Noble, and all the other sites. However, Red Kitty's in only a mom-and-pop imprint, one of the bigger ones might have other rules.

 

[AchtungNight]

The imprint that publishes my work only requires that I write within the guidelines of Amazon, Smashwords, Barns & Noble, and all the other sites. However, Red Kitty's in only a mom-and-pop imprint, one of the bigger ones might have other rules.

Exactly. This is among the reasons why my South Park fanfic with no erotica content is not published on Lit.

 

[MillieDynamite]

FanFic, without permission from the copyright holder, can't be published on any commercial sites. Even posting FanFic anywhere can get you in trouble with the copyright holders, should they decide to pursue it.

A few years ago, a publishing company approached my father to write a novella based on a Western TV show from the 1960s. The show featured a wandering ex-Confederate soldier named Tate. His name was also the name of the show. It was a one-season wonder.

They didn’t have enough shows for syndication. It had 42 one-hour episodes. Therefore, they never renewed the copyright. At the same time, they made the request of Pops and a few other writers; they asked for writers on Facebook to contribute stories for an anthology. However, they had no guarantee that they would include their stories in the anthology.

My father turned down the offer. Stating he wasn’t fond of the show or the character. He was a man with an arm in a leather sling contraption, having had his shoulder screwed up by a Yankey bullet.

There was no advance for the writing, and they would divide all proceeds between all authors equally. Despite those writing, novellas had larger word counts; they still only got what the others would receive. Even so, Dad’s reason for turning down the work was the character and the show.

CORRECTION: Tate had only 13 30-minute episodes.

 

[KeithD]

I'm curious if you have ever received pushback from publishers or if they've ever provided you with guidelines about material that might be too legally risky.

No. They are erotica publishers. They list what they won't publish, though, which includes some extreme erotica.

There's all sorts of extreme stuff being published (and copyrighted) in the mainstream as well.