Most people misunderstand the limits on their rights to use someone else’s work. I’m not talking about hardcore pirates here, but ordinary folks who wouldn’t dream of taking something belonging to someone else — and who do it unintentionally.
Copyright and plagiarism
Many people believe that if you give credit to the original author, you can use whatever you want from someone else’s book, photography or music. If you give credit, you’re not a plagiarist, but you may be violating copyright or a trademark.
You can’t use someone else’s world, characters or other major elements of their creative work without permission (which usually costs money), unless the work is no longer under copyright. Fortunately, it’s usually extremely easy to get permission, especially if the work isn’t going to be sold commercially. (It may take some time, though, so start early.)
Works published before 1923 are usually in the public domain, as are those created by people who died before 1939. (Life plus 70 years is the term in US law.)
Accidental Plagiarism
It’s actually quite easy to use someone else’s words, or the way they structured their work, without meaning to do so. For example, consider the author in the library doing research and taking notes. The cell phone rings, and our author hurries out to answer it, forgetting to jot down whether the note is a copy of someone else’s work, or their own summation of an important thought. A year later, going through those notes, the unattributed words make their way into the book, and a scandal is born.
When you’re doing research, it might be a good idea to save copies of the pages you’re quoting, and make sure that the bibliographic info is on them.
It’s on the Web
The Web may make it easy to use someone’s work without permission, but that doesn’t make it right. It is emphatically not true that everyone who puts their words on the web will be thrilled that you’re sending them to other users. Not even if you give credit for it.
Some people put their work out here, and make it freely available, because they want fame. Some do it because they want to help the world. Some are trying to show potential customers what they have to offer, and some are trying to hunt up potential clients, and get them to register in order to get the free stuff.
Whatever their motivation, the work is theirs, and the decision about whether or not you can use it belongs to them. As does the right to make the judgment about whether your use will bring them more business, or not.
Fair Use
This is a defense, should you be sued, not a term clearly defined in the law. Basically, you can use small parts of another person’s work, if it fits the fair use criteria.
There are four:
1. Why are you using it? If you will be using it in a classroom, it may be fair use (although copying worksheets, or language tapes, or what all, usually is NOT). If you’re selling it for profit, that’s usually not fair use.
If you’re altering the work substantially, that also tends to lend legitimacy to your use.
2. The type of work you’re using
If it’s just for fun, you have less latitude than if it’s designed to save lives.
3. The amount and centrality of the portion you use.
If it’s a song or a poem, a tiny snippet can be a violation — unless you’re using only the title, and you use it as a title.
If you take the most important bits, it’s not fair use. And, yes, that’s a very fuzzy line, isn’t it? It’s a whole lot cheaper to get permission than to pay a lawyer if the owner of the work thinks you’ve crossed it.
4. Impact on profitability
If your use will reduce the rightsholder’s ability to profit from the work, you’re probably in trouble. And you’re not the one who gets to make that call. The rightsholder gets to decide if they want to sue you, and the judge and/or jury get to make the final call. Oh, and if it’s a registered copyright, there are statutory minimum penalties that make suing worthwhile, even if the damage is hard to establish, or small.
What examples have all of you found of these phenomena?
Is there anything here I got wrong? I’m neither a lawyer nor a writer, so I’m not invested in my own words. Go ahead and suggest something.
BEA
Wednesday, May 20th, 2009How many of you will be at BEA next week? And how many will be going to IBPA-U, the big seminar series before it? (Remember, PMA changed its name last year to IBPA.)
For those who are interested in the things I say:
–I’ll be teaching a class at IBPA-U called Building A Better Budget (Wed. morning) and an Ask The Expert table at 7 am. (Much coffee will be consumed. Also tea.)
–I’ll be doing a brief seminar on profitability in tough times on the floor of BEA Saturday afternoon, in the Independents’ Lounge run by Foreword Magazine and the NY Center for Independent Publishing.
–I’m open to having my brains picked almost any time you catch me — buy me a cup of coffee and my mind is yours for a good long time!
I hope to see some of you there. If you see my name on a tag — introduce yourself!
I’ve been doing more speaking lately (Denver and Sacramento in April, NYCIP in March, and these). I must admit, I’ve always enjoyed teaching and speaking. (Shameless promo: if your group is looking for a speaker on my type of topic, I’m very inexpensive!)
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