Michaeline: Fair Use

“Immature poets imitate, mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.” T.S. Eliot in The Sacred Wood: Essays on Poetry and Criticism

Way back in the dark ages, when a Sony Walkman tape player was the height of technology, I was in journalism school and they talked about plagiarism, and scared the bejeezus out of us in Communication Law class. Plagiarism is one thing (and a very bad thing, both as an artist and as a consumer) but sometimes using other people’s words is the right thing to do on many levels.

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Quoth the Raven, “Nevermore.” And then it was turned into a play. And then a movie. Actually a couple of movies.

This week, NPR’s Planet Money had a podcast that touched tangentially on fair use, and for some reason, my subconscious perked up and listened. I don’t think I’m planning any grand literary heist, but if I do this summer, I’ll be able to remember the basic rules. 1. Is it transformative? You can’t steal something just because it sounds cool. You need to weave it into the fabric of your work, and transform it into something different. Preferably something that adds to the cultural discussion that your novel is taking part in. 2. Is it in the public’s best interest that this information, in this expression, be out there? It’s easier to use material from factual work than fictional, but you must attribute. Cassie Edwards was rather famously called out for quoting “large chunks of unattributed material” in her books by the smartbitchestrashybooks.com blog. There is a lot to be learned there about borrowing, and writing in general. A quick google doesn’t turn up any evidence that Edwards was sued. But it does look like the Court Of Public Opinion made a great deal of trouble for her. 3. Just how much are we stealing here? Only enough to make your point. Don’t get greedy and try to steal a whole book and cram it between the pages of your own. 4. An it do no harm? Don’t harm the potential market value of the original work. The stealing should be synergetic – it should improve your work, and make people interested in seeing the original. Fair use is actually a lot more complicated than that. My own extra rules for borrowing a quote include: 1) quote accurately, 2) attribute accurately (did the person really say or write it?), and 3) provide a way for people to see the original, if possible. It’s so easy in a digital book to provide a link. Footnotes or acknowledgements work in print matter. Also, just because you CAN use material doesn’t mean it’s always wise to do it. In Zoe Chace’s Planet Money podcast that I mentioned earlier, I think Rap Genius makes a good case that they create something more than the lyrics they copy – they provide annotations and cultural context for the lyrics. The podcast doesn’t mention this, but I think they also remind the public that the work is out there, possibly boosting the market for the original song. However, they don’t make enough money to go to court over their right to use the materials. It was cheaper and easier (and a win-win) to pay the original artists a small fee to license the material. To quote one of the bestsellers of all time, “What has been will be again; what has been done will be done again; there is nothing new under the sun.” (Ecclesiastes 1:9, New International Version) Our job is to cast our ideas and experiences in new words, and make it fresh for a new generation. And when we use the old words, let’s do it careful and with thoughtfulness.

6 thoughts on “Michaeline: Fair Use

  1. Plagiarism is easy to avoid, too—don’t use exact words. Ideas, scenarios, concepts, data—all fair game. It’s the exact words you can’t use without attribution and/or permission. One good example of an author who was sued is Janet Dailey, who ripped off two of Nora Roberts’s books almost in entirety and was found out when a reader read the two books back to back and discovered the similarity. Roberts donated the settlement to literacy groups, and she’s really tough on the issue of literary theft.

    • I really think the key point is “transformative” — Even ideas and scenarios can be stale unless we add our own points of view or our own experiences. Exact stuff needs to be attributed. Or transformed into our own words.

      And writers who delude themselves into thinking “nobody will notice”? Like Blake Morrison in the Guardian link I provided who used some snips of song lyrics? Even pre-internet, rabid readers noticed, and if it felt wrong, they spoke up. If my only justification is “nobody will notice” that should be a great big warning flag to pay more attention.

      One of my personal nightmares is to find I’ve unconsciously plagiarized from someone . . . .

  2. I really like the way today’s musicians borrow from and completely reinvent older songs. Recently I was listening to Labrinth and my husband said ‘isn’t that some Joni Mitchell in there?’ And indeed he was right, it was really unmistakable, and I’d stopped noticing because it worked so well as part of the new song. We looked up the small print and there was Joni, with a share of the song-writing credits. I like that!

    • I think musical mash-ups were the moment when the concept of “transformative” entered the framework of “fair use.” It shows really clearly how new art is built from what went before.

      • Oh, yes, sampling has been a source of a lot of great art in music. You see this a tiny bit in written arts. I can’t think of very many Great Parodies That Have Passed The Test of Time (unless you count stuff like Northhanger Abbey). But I have enjoyed a parody or two in the proper time and place. Also, when someone takes Moby Dick and turns it into emoji, that’s rather interesting — I guess it’s a variant of translation, which has its own rules and laws, especially when the original work is still under copyright.

        Sometimes, a quote is the exactly right thing to set the mood for a chapter. (Sometimes, though, it’s just a writer’s tool that should have been excised before publishing.) Borrowing responsibly is important. And it’s even better when the original artist gets a nod of thanks (or even a cut).

  3. Pingback: Michaeline: Organize your Notes with Artificial Intelligence | Eight Ladies Writing

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