On Writing

Today, the Divas are going to delve into the murky waters of plagiarism, copyright infringement, and fair use. Please note that we are referencing US copyright law¹ in relation to authors who write fiction, which means for the purposes of this article we will not reference the ins and outs of copyright law concerning non-fiction, poetry, patents, visual arts, video, music, etc.

In its simplest definition, plagiarism is the use of another’s intellectual property without attribution. Because of the lack of attribution, the work could be construed as belonging to the plagiarist instead of the original author.

Sounds terrible, right? We may be tempted to scream “sue” when we hear about someone “borrowing” from a beloved author but plagiarism, while morally reprehensible, may not be grounds for legal action. The ethical crime of non-academic plagiarism is more often than not considered in the judicial chambers of one’s conscience and tried in the court of public opinion, while the issue of copyright infringement is argued in courtrooms across the nation.

Copyright is the legal ownership of intellectual property for a limited amount of time. Copyright is given to “original works of authorship.” By default the author is the owner of a copyright, but a copyright is considered to be property and is subject to the state laws governing such things. Copyrights can be sold, transferred, leased, willed, inherited, etc.

Section 106 of the 1976 Copyright Act outlines the rights given to a copyright holder. These rights include: exclusive rights to authorize the reproduction of copyrighted works; prepare derivative works; distribute copies; perform the work publicly; and display the work publicly.

Tad Crawford says in The Writer’s Legal Guide, “…copyright protects against reproduction, but not against independent generation of a same or similar work.”² Keep in mind an author’s intention and exposure to a copyrighted material are the things that differentiate between infringement and chance likeness.

The mutual inclusivity of plagiarism and copyright infringement is not as cut and dried as it seems. For example, one can infringe upon copyright without plagiarizing. A good example of this type of copyright infringement would be the use of attributed song lyrics in a book. In this instance the author has not secured the proper permissions or paid for the privilege, if required, of using the lyrics.

Did you know that attribution doesn’t mean that you’re safe from infringing someone’s copyright? To avoid such infringement, your usage must fall under the “fair use” exception or you must have permission from the copyright holder.

One can also plagiarize without overstepping copyright. An example of this would be the use of a character from a book in the public domain. An example of both plagiarism and copyright infringement would be the use of dialogue from a copyrighted book.

Both plagiarism and copyright infringement blur the line of ownership.

According to Section 102 of the 1976 Copyright Act, “Copyright protection subsists for original works of authorship that are fixed in a tangible form.”

In layman terms this means you wrote it, you didn’t steal it, and it’s been recorded in a tangible way (print, file, etc.). Authors Ronald L. Goldfarb and Gail E. Ross explain in their book, The Writer’s Lawyer, that the originality standard that has to be met in order for work to be considered copyrightable isn’t established via a work’s unique qualities but rather via its independent creation.³

So what elements are copyrightable? And what elements are not?

Simply put, your original expression is copyrightable. But other elements (like ideas), no matter how distinctive, are not. Authorless content, works that contain nothing original and common knowledge are also not copyrightable. Original content has everything to do with your unique creative expression, but has little to do with ideas, generic themes, and tropes.

Copyright Act, Section 102 (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which is it described, explained, illustrated, or embodied in such a work.

What?!? You mean my idea to reimagine Les Miserables in a post-apocalyptic world can’t be copyrighted? Yes, that’s exactly what I mean. The unique way that you write your dystopian reimagining of Jean Valjean’s redemption and Javert’s self-destruction is copyrightable (with the exception of content that pertains to the original work), but the general premise is not.

In his book, The Writer’s Legal Guide, author Tad Crawford speaks eloquently about the issue of non-copyrightable content.

…the original description (expression) of an idea is copyrightable, as is the way facts are selected and arranged, and common themes and stock characters can be fleshed out to create copyrightable works. But the underlying ideas, facts, and themes remain forever in the public domain, available to anyone.

Imagine for a moment what the world would be like if Bram Stoker had been the only author who had the right to pen tales about vampires or if there was only one novel that was able to use the saintly sinner trope. And, horror of horrors, what if Pride and Prejudice hadn’t been reinterpreted into the oh-so-wonderful Bridget Jones’ Diary? What a bleak literary world we would have if there wasn’t room for innovation, inspiration, parody, homage and derivative works of all types.

Copyright law is fashioned in such a way that it protects intellectual property while still allowing for creative expression, enrichment, and the education of others. Though often confusing, this intentional divide between the rights of authors and the obligation to society creates loopholes through which the needs of both parties are satisfied.

As a copyright owner, you have the legal right to write sequels, license, distribute, write spin-offs, have your work translated, performed, etc. The law protects your ability to do this and it gives you civil recourse if your copyright is infringed upon.

According to Section 107, the following criteria is used to determine what is and what isn’t copyright infringement.

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for or value of the copyrighted work

To win a copyright case, it is necessary to prove that your assertion of copyright is valid and that someone else has violated it. The litmus test for infringement is whether the text in question is substantially similar. In The Writer’s Lawyer, authors Goldfarb and Ross explain the different types of substantial similarity.

Courts that have grappled with the concept of substantial similarity describe two distinct types: comprehensive nonliteral similarity and fragmented literal similarity.

…Infringing nonliteral similarity” means that the overall concept and feel of the two works is the same. For this to be the case, the works must share more than generalized ideas or themes.

…The easier type of infringement to prove is literal similarity. It is important to note that word-for-word copying is not required for a copyright violation. An infringer cannot avoid responsibility by simply changing a word here or there…⁵

Another way that author’s works are protected is through the concept of moral rights. Unfortunately, American copyright law does not acknowledge these rights in the same way that some European countries do. Instead of abiding by legislated moral rights, American courts depend on judicial precedent and legal theory to provide American authors with the rights of privacy and publicity and protection against unfair competition, defamation, and misappropriation.

To satisfy our obligation to society, there are two primary areas that are exceptions to traditional copyright restrictions.

—Fair Use

According to the “Fair Use” exception, quoting for the purposes of criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Still there are limits to the amount of copyrighted material that may be used. These limits are not clearly defined. Instead they are argued before judges who rule and then are overturned by other’s rulings. It is up to the author who is quoting the original work to decide what an appropriate amount of copyrighted text to use is. But be careful. One man’s “just enough” may be the quoted author’s “too much.” And if the judge agrees with the author, the consequences could be judgments for actual and statutory damages, repayment of attorney fees, and various fines. If the infringement is willful and done for the purpose of financial gain, it is possible that criminal charges could arise. See Sections 504 – 507.

Parody is also covered under “fair use.” According to Webster’s New World Dictionary, parody is “a humorous imitation of a literary or musical work or style.” Parody can be wide or narrow in scope—like making fun of an entire genre, lampooning the fruits of an author’s career, or spoofing a specific book or character.

—Works in the Public Domain

In general, the duration of copyright for works secured after 1978 is generally the length of the life of the author plus seventy years, see section 302 of the 1976 Copyright Act. The durations vary for other types of copyright such as work for hire, joint copyright, and anonymous works. After that, barring changes to current copyright law, these books and their characters, content, plots, and style will enter into the public domain and become inspirational fodder for a new generation of authors. For now, though, there is a wide variety of literary works in the public domain that can be inspiration for parodies, mash-ups, derivative, and transformative reimaginings.

Disclaimer: We are Divas, not lawyers. If you lack proper understanding of copyright law and the intricacies found within, we recommend that you seek out appropriate legal counsel so you may benefit from their expert advice. Anything in this article that may be construed as legal advice is merely an opinion given based on the author’s experience in the publishing industry and knowledge of copyright and fair usage. It is not meant to replace an attorney’s counsel. If you’d like more information on the basics of copyright law, plagiarism, and fair use, we suggest you check out the links below and the books that are referenced.

¹U.S. Copyright Office - Copyright Law of the United States
In-text: ((www.Copyright.Gov), 2013)
Bibliography: (www.Copyright.Gov), U. 2013. U.S. Copyright Office - Copyright in General (FAQ). 
[online] Available at: http://www.copyright.gov/title17/circ92.pdf [Accessed: 1 Oct 2013].
 ²Crawford, Tad and Tony Lyons.
The Writer's Legal Guide
In-text: (Crawford and Lyons 1998, 57)
Bibliography: Crawford, Tad and Tony Lyons. The Writer's Legal Guide. New York: Allworth Press, 1998.
 ³Goldfarb, Ronald and Gail Ross.
The Writer's Lawyer
In-text: (Goldfarb and Ross 1989, 49)
Bibliography: Goldfarb, Ronald and Gail Ross. The Writer's Lawyer. New York: Time Books, 1989.
⁴Crawford, Tad and Tony Lyons.
The Writer's Legal Guide
In-text: (Crawford and Lyons 1998, 21)
Bibliography: Crawford, Tad and Tony Lyons. The Writer's Legal Guide. New York: Allworth Press, 1998.
⁵Goldfarb, Ronald and Gail Ross.
The Writer's Lawyer
In-text: (Goldfarb and Ross 1989, 67-68)
Bibliography: Goldfarb, Ronald and Gail Ross. The Writer's Lawyer. New York: Time Books, 1989.
⁶Crawford, Tad and Tony Lyons.
The Writer's Legal Guide
In-text: (Crawford and Lyons 1998, 84-96)
Bibliography: Crawford, Tad and Tony Lyons. The Writer's Legal Guide. New York: Allworth Press, 1998.
⁷Agnes, Michael and Charlton Laird.
Webster's New World dictionary and thesaurus
In-text: (Agnes and Laird 2002, 464)
Bibliography: Agnes, Michael and Charlton Laird.Webster's New World dictionary and thesaurus. 
Cleveland, OH: Webster's New World, 2002.












Fair Use



Public Domain



Moral Rights




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