Smart Bitches Trashy Books | All of the romance, none of the bullshit.

Copyright infringement is a matter of the law—and keep in mind that what I’m going to talk about is the American sub-species of this particular animal; other countries implement copyright law in different ways. Copyright law came about as a means for creators of an original work to exercise their rights—the right to create and distribute copies, the right to license it for other purposes or to other people, and the right to be credited as the creator of the work, among other things. It’s an attempt to strike a balance between allowing the creators of the work to benefit financially and to exert whatever control they wish on the fruits of their labor, and having the work enrich the culture as a whole by passing into the public domain.

Notice, by the way, that copyright law covers all sorts of work, and not merely works of fiction. An article in an academic journal is subject to copyright protection; so are textbooks, poems, songs, music videos, movies, etc.  However, not all intellectual property is protected by copyright law. Short phrases and procedures, for example, aren’t covered, and other things are covered by trademark protection (such as logos and slogans) or patent law (systems and processes, for example).

Copyright law gives you exclusive rights, but only for a limited time. As the law stands now, works created on or after January, 1978 are copyrighted for the duration of the author’s life plus 70 years; for works created “for hire” (i.e., licensed by entities and people other than the creator), copyright lasts for 95 years after publication or 120 years after creation, whichever is shorter. Copyright protection didn’t always last this long; they were extended to the current terms thanks to the Copyright Term Extension Act, known commonly as the Mickey Mouse Protection Act due to the fact that Disney, among a few other holders of lucrative copyrighted material, lobbied very heavily to have the terms extended in order to avoid some of their popular works pass into the public domain.

So in short, in order to use material that’s been copyrighted, you generally have to get permission from the copyright holder and comply with whatever terms they might have set, including, in many cases, paying some sort of fee.

But wait! That’s not all! Call now, and for the price of FREE, we’ll tell you about Fair Use!

In essence, Fair Use is an affirmative defense that allows for the legal use of copyrighted material that would normally be considered infringing without asking for permission or clearing the rights, under certain limited circumstances. In the United States, the specific law governing that is the Fair Use section of the Copyright Act of 1976. There are two parts of special interest to us in the statute. The first part covers certain circumstances under which Fair Use will usually prevail—it specifies that “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The second part is a four-factor balancing test to determine if each specific case is covered by Fair Use:

(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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

(By the way: some people seem to have gotten the impression that I’m some sort of Copyright Enforcment Harpy, which really isn’t the case at all. I think copyright law is a good thing, by and large, but I have lots of opinions on why I think the state of the law as it stands is quite severely broken, but this is not really the forum for it. I do highly recommend this comic by Duke University School of Law’s Center for Study of the Public Domain to get an overview of the issues and problems with current copyright law.)

So to summarize: copyright infringement = a legal cause of action. Plagiarism, because it also concerns unauthorized use of intellectual property, is related, but it is possible to infringe on copyright without committing plagiarism. The example I gave previously is one of the clearest I can think of: a filmmaker using a song in a movie without clearing the rights with the publisher but who fully acknowledges the writers and performers in the credits has committed copyright infringement, but hasn’t plagiarized.

This is because plagiarism is concerned with inadequate acknowledgment and/or false attribution. Plagiarism is the act of using somebody else’s work and either failing to acknowledge the contribution of the original author and/or outright claiming that you’re the author of the work. The Wikipedia article characterizes the difference between copyright infringement vs. plagiarism this way:

Plagiarism is different from copyright infringement. While both terms may apply to a particular act, they emphasize different aspects of the transgression. Copyright infringement is a violation of the rights of the copyright holder, when material is used without the copyright holder’s consent. On the other hand, plagiarism is concerned with the unearned increment to the plagiarizing author’s reputation that is achieved through false claims of authorship.

Plagiarism can happen (and does all the time) without infringing on copyright; if you copy pages of material from a book that has passed into the public domain for a term paper and neglect to cite the work in any way, you’ve committed plagiarism but haven’t infringed on copyright. They sometimes do intersect—Kaavya Viswanathan’s case comes to mind, for example.

WHATEVER, YOU WANT US TO USE FOOTNOTES IN FICTION NOVELS, DON’T YOU, YOU GODDAMN HUNTER OF WITCHES
So all this talk about proper attribution of sources has some authors in a bit of a lather, and some have flung themselves onto the slippery slope with great angst and panache, and have slid down it at an alarming pace, hollering that we readers now expect them to provide detailed footnotes for every bit of research they’ve incorporated into their work or we’ll stab them for being dirty, dirty plagiarists.

I’ll confess right now that I haven’t read all the comment threads on this site that address the plagiarism issue, so I can’t actually say “There haven’t been any idiots who’ve advocated that sort of extreme standard, so calm down, ferchrissakes,” because for all I know, there may have been a few. I’m not, despite my love of comic hyperbole, a creature of extremes, and I’ll be one of the first to say that a work of fiction is different in character, purpose and tone than a research paper, and I certainly don’t expect the two to cite their sources the same way. Here are what, in my opinion, reasonable citation standards for a work of fiction:

1. If you use somebody else’s story structures (such as significant plot elements), a nod to the original author and/or work is nice, but not necessary. If I remember correctly, Lois McMaster Bujold acknowledged Georgette Heyer in A Civil Campaign, and Sharon Shinn explicitly said that Jenna Starborn was Jane Eyre in outer space. If the story is famous enough, you don’t even need to do shit; most people will get it on their own. Think of all the Romeo and Juliet knock-offs that exist without bothering to acknowledge Shakespeare.

2. If you’re using literary allusions or in-jokes in a rather limited context, no acknowledgment is necessary. This is especially true in the context of character development; if your character is, say, a geek who loves quoting episodes of The Simpsons, or a religious person who continually cites passages from the Bible, or a hipster nerd who peppers her conversation with references to Of Montreal lyrics, I don’t expect footnotes documenting every damn usage. Theresa Weir started every chapter in Cool Shade with snippets of lyrics from various songs without citing the song title or artist, for example, and I thought that was perfectly acceptable. If you want to make a note at the end or the beginning of the book about the allusions, have at it, but by and large, I’m perfectly fine with these going unacknowledged.

3. If you extensively utilize somebody’s research without actually using any of their words, again, a nod and a list of works would be awesome, but not strictly necessary. I’m not expecting footnotes, but a “I got most of my information from this book, and if you’re a nerd like me, here are some additional sources that I thought were fun and useful” makes me profoundly happy in the pants—even when I’m not wearing pants. (Or perhaps…especially when I’m not wearing pants?)

4. If you want to use large chunks of somebody else’s work word-for-word...well, really, my advice is: avoid this whenever possible. The tone shift will generally interrupt the flow of the story, and there’s honestly no way for you to cite this gracefully. If you still insist on doing this, however, then I want to see a citation—it doesn’t have to be as complete or extensive as what you’d find in an academic paper, but I’d want an author and a title at the very least. Please note that any whimperings about how “non-fiction works don’t count” and how they’re all just “boring old facts” make me, a former technical writer and a current law student, want to cut a bitch.

A lot of what I’m talking about is rather fuzzy, of course. The four-factor balancing test of the Copyright Act is rather fuzzy. My personal preferences for author acknowledgments are VERY fuzzy (what constitutes a “large” chunk? What sort of limited context am I taking about when it comes to allusions?). The fuzziness makes things difficult, but it also makes things interesting. What do you think is fair? Are your opinions different as a reader? As a writer? As an editor? I want to know, and I really want to hear from people who think differently from me about this issue, my hyperbolic “cut a bitch” statement up above notwithstanding.