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With special guest star: Fan Fiction!

So, my social media stream and newsreader is full these days about the latest scandal du jour in the publishing/writing world: Shey Stahl’s alleged plagiarism of multiple fan fiction authorswork.

Or is it copyright infringement?

There are a lot of opinions and learned opinions and outright statements that may or may not be legally sound flying around the internet.  And this is an area about which writers desperately need to be educated, so as to avoid legal tangles, loss of income and/or social media kerfuffles.

I am not a lawyer.  This is not legal advice.  Should you find yourself needing help with copyright infringement, seek out an attorney who specializes in intellectual property law.  Also, the following pertains to the United States only.

However, I have worked in creative industries alongside the intellectual property teams, and this is the result of reading many C&Ds and attending meetings about protecting my employers’ rights.

Yes, 2 Live Crew is relevant to this blog post

Let’s start at the very beginning: the artist’s work.

You’re an artist. You create a piece of work that comes straight from your heart and mind. It could be:

A painting of the view from your back deck.

A poem about how invisible you feel when store clerks look past you.

A tune composed for your child’s first birthday.

A novel about an English duke and the headstrong governess who resists his charms.

A blog post about the lack of much needed stoplights in your town.

A video of your sister unboxing her latest phone.

A photograph of your cat beating up an old sock.

As soon as you type your thoughts on paper/screen, or put brush strokes on canvas, or capture an image on film/digital file: congratulations!  You now own a piece of intellectual property.  The official language describing what qualifies for copyright: “original works of authorship fixed in a tangible medium of expression.”

However: that great idea for a novel you had in 2005, about a twenty-something male billionaire with a damaged psyche who stalks a virginal female college student until she agrees to sign a contract for sexual services?  Yeah, no, you cannot go after E.L. James for copyright infringement even though you thought of it first.  In fact, YOU can still write that novel and SHE can’t sue you for infringement.

Ideas are NOT protected.  Go back to the official language: “original works of authorship fixed in a tangible medium.”

It’s your unique expression of the idea that is protected.  Not the idea itself.

More on unique later.

So what is copyright?

Copyright is – well, it says what it does right on the label.  It is the right to copy.

Once you create your work, copyright means that only you – or whoever you designate – has the right to copy your work. (Well, there’s fair use.  We’ll get to that.)

Why is this important?

Because copying their work – e.g. distributing it – is how artists tend to make money from their art.

Yes, it’s wonderful to have a completed novel sitting on your hard drive.  But most authors want others to read their work.   And for others to read the novel, it needs to be distributed.

As the author, copyright means that you and you alone get to decide HOW you want your work to be distributed.

Whether you decide to sell your work to a Big 5 publisher or self-publish, whether you decide to put your work on the internet for anyone to come along and read for free or you attach a price to it: these are YOUR decisions to make.  You can assign these rights to a third party (and we’ll talk about how long copyright lasts and thus the need for estate planning some other time), but at the start, these decisions rest with you.

So what constitutes copyright infringement?

Copyright infringement is when someone steps on your right to copy, or distribute.  In other words, someone decided how and where and when your work should be seen – and at what price – without consulting you.

Unless it’s fair use of your work.  Or right of first sale. In which case, it’s not infringement.

Copyright also gives you, and only you, the right to create sequels and other “derivative” works based on your works.

So what is “Fair Use?”

Copyright law has what are termed “safety valves” to balance the copyright owner’s rights with the public interest.  In other words, if everything is copyrighted from the moment of being fixed in a tangible format, then how can the expression of new ideas and artistic works be spread without people yelling “MINE!” and locking them up tight?  It’s good for everyone if culture is allowed to spread and propagate.  Therefore, “fair use” of intellectual property is allowed.

Fair use is not strictly defined.  There is no set percentage or size that makes usage by a third party “fair.”  In general, it’s understood that if you use a small portion of the work, especially to illustrate a topical news story, to educate, and/or in a piece of criticism, you’re pretty safe.  Parody is also considered fair use.  The US Copyright Office does warn that that safest course is to get permission from the copyright owner, even if you feel your usage falls within the permissible parameters.

If your use is commercial – in other words, if you are using the video clip or the passage from the book or the song chorus to market and/or sell your own work – it’s usually NOT considered fair use.

An exception is if your use is SO different that it transcends the original work and transforms it into something wholly new – in which case, fair use comes back into play.

So what’s this “Right of First Sale?”  

On writers’ loops, you get the occasional rant against used bookstores.  It’s not fair, someone will say, used bookstores sell my books and make money off them but I don’t get a penny!

And at first glance, it does seem unfair.  Plus it appears to go against the principles of copyright: only the copyright owner should decide how their work is distributed.

But the right of first sale is another safety valve that protects the rights of the consumer and allows art to be disseminated more freely.   The copyright owner did make the decision to distribute their work as a book.  But once the book is created, it exists as a physical object (um…let’s put ebooks to the side for now) that is sold to an consumer.

The consumer gets to decide what to do with the physical object.  Write in the margins?  Tear pages out?  Make an art project out of it? Lend it to a friend?  Donate it to charity? Sell it to a used bookstore, who can then resell it? Yes, yes, and yes.  All permissible.

The book owner can’t take the words inside the book, in the order in which they are written, and distribute the content.  That’s copyright infringement.  But they can fold, spindle or mutilate – or give away or resell – the physical object.  That’s the right of first sale.

OK, so what’s plagiarism?

Plagiarism is representing someone else’s work as your own.

Period.

You can plagiarize an idea.  You can plagiarize a sentence.  You can plagiarize a whole novel.

But plagiarism per se isn’t illegal.  There are no laws protecting intellectual property against it.  Is plagiarism morally wrong?  Sure.  And in some professions, such as journalism and academia, it will get you fired.

When plagiarism happens to authors, it is horrible and nasty and hurtful and unethical – but there isn’t a legal remedy for it.

What IS illegal is copyright infringement, above.  Because only you have the right to distribute your “original works of authorship fixed in a tangible medium of expression.”  So if someone takes your work and puts their name on it (i.e. plagiarism) AND distributes it without your consent – that’s an actionable offense.   Even if they give you credit and attribute the words to you, it’s still actionable (unless the usage is protected under fair use…) because they did not receive your permission.

Basically, as James D. Peterson & Jennifer L. Gregor note in Wisconsin Lawyer, plagiarism is copying without crediting the original author; copyright infringement is copying without the permission of the original author.  The law doesn’t care about attribution.  It does care about authorization.

I wrote the phrase “The sun set over the horizon” first.  I sue ALL the writers now!  MWA-HA-HA!

Not so fast, buckaroo.

Remember that part about “original authorial works of authorship?”  To prove someone infringed your work, you need to show:

1)   You own the copyright

2)   The infringement replicated “original” or unique elements of your work.

In other words, just because you wrote a story about a female writer who lives in New York City and discusses dating and sex with her three best female friends, it does not mean that you can sue either Candace Bushnell for “Sex in the City” or Lena Dunham for “Girls.”  Nor can Bushnell sue Dunham.

And to prove you own the copyright in the US, you need to show:

1)   The work meets the threshold of originality

2)   The work is eligible for copyright (titles, for example, are not subject to copyright.  So if your book is entitled “Sunsets of Winter,” and next month Joe Shmoe publishes a separate book called “Sunsets of Winter,” no infringement took place).

3)   National origin of the work, to determine if US law applies

4)   You’ve obeyed all other applicable statutory formalities.

5)   You are the author or the author has legally transferred the copyright to you

The easiest way to prove you own the copyright in the US is to register it with the US Copyright Office. 

Your copyright exists from moment the work is fixed in a tangible means of expression and it is protected regardless of registration. However, registration is necessary if you wish to pursue a case of infringement in the US courts.  You can register the copyright at any time during the copyright term.  There are two key dates, though:

1)   If the work is registered within three months after publication or prior to the infringement of the work, then the copyright owner is eligible to recoup statutory damages and attorneys’ fees in court actions.  Otherwise, the copyright owner is only eligible for the award of actual damages and profits.

2)   If registration occurs within five years of publication, then it counts as evidence of copyright ownership in court.  Otherwise, even with registration, the copyright owner will still need to provide evidence that the copyright truly is theirs.

Check, check and check.  So now can I sue?

Nope.

It has to be proven that the infringer did indeed copy and wasn’t, oh, say, bitten by the zeitgeist bug.  And the zeitgeist bug does exist.  There’s no other way to explain the presence of TWO volcano movies and TWO asteroid movies in the same summer (oh, ‘90s Hollywood, how…zeitgeisty you were).

So unless a witness steps forward or the infringer actually admits their guilt, two things need to be proven:

1)   The infringer had access to the copyrighted work.

2)   The infringer specifically copied YOUR work

In the case of #1, Lena Dunham couldn’t sue Candace Bushnell for infringement, because “Sex in the City” predates “Girls” by some years and a whole generational divide.  Bushnell didn’t have access to “Girls.”

#2 is harder to prove.  It’s not enough that both texts contain the phrase “the sun set over the horizon” because that is a fairly common phrase that could quite conceivably appear independently.  To prove infringement, once might need to also look at sentence patterns or word rhythms or even the same errors appearing in both texts to show that one was copied from the other.

By the way, infringement can be involuntary.  Say you read a book years ago and parts of it stayed with you.  When you sat down to write, you subconsciously remembered phrases and scenes from the earlier book, and they made their way onto your page.  It’s still infringement.  Intent doesn’t matter.

Sooooooo….let’s get back to Shey Stahl, which is the only reason why I clicked on this mess of teal deer in the first place.  Is she guilty, or what?

I’m not going to make pronouncements on Stahl’s guilt or innocence.  I haven’t read her work, I haven’t read the work she supposedly infringed.

But I will say this:

Lifting scenes wholesale but changing the POV from third to first, the verb tense from past to present, and the characters’ names DOES NOT ABSOLVE ONE OF PLAGIARISM. Plagiarism is taking someone’s work and passing it off as your own.  Period.

It’s unethical, it demonstrates a decided lack of character, and it is a cheat.  It misleads the reader, who believes they are reading an original work by the named author, and it horribly disrespects the original author.

But plagiarism isn’t illegal.  Copyright infringement is.  Is it infringement?

Weeeeeelllllll.

Stahl is accused of infringing fan fiction.

So it depends.

No, seriously, it depends on who you ask.

Some argue that fan fiction is fair use.   An example: The Wind Done Gone, which retells Gone with the Wind from the perspective of Scarlett O’Hara’s half-sister, a mulatto slave.  The courts ruled that the book was parody and transformative and therefore fair use, although the two parties did end up settling.

(Hence the 2 Live Crew album cover.  The courts ruled that their use of Ray Orbison’s “Oh, Pretty Woman” was a parody and fair use, even though 2 Live Crew had tried to license the song from Orbison’s publisher and was turned down.)

Some argue that fan fiction is a derivative work and as such, it is infringement.  An example: 60 Years Later: Coming Through the Rye, an unauthorized sequel to Catcher in the Rye featuring an elderly Holden Caulfield.  The author and publisher tried to use the parody and social commentary fair use defense, but their book was found to be too similar to Salinger’s work.   

Remember, copyright infringement hinges on whether the copyright owner can prove valid ownership.  If the work isn’t “original” and/or you don’t own the underlying copyright because Disney or Stephenie Meyers hasn’t assigned it to you, your work isn’t eligible for protection and therefore can’t be infringed.

But there are many advocates who fight to prove that fan fiction is transformative and/or fair use and therefore DOES deserve copyright protection.  So as soon as the fan fiction authors saved their words in a digital file, they owned the copyright. And only they have the right to distribute their work.  In which case, yes, infringement took place.

So until there is a court case that specifically addresses this area, fan fiction remains a grey area. 

Pretty much, yep.

But even when it isn’t copyright infringement, plagiarism is WRONG, y’all. Don’t do it.