Basic Definitions of Legal Terms in Intellectual Property Law

[malsperanza]

As promised, below are some simple definitions of terms in intellectual-property law, which may help clarify aspects of a debate being conducted in the fanfic blogosphere largely by laypeople.

~These definitions refer to United States law. Intellectual-property laws of the European Union, the United Kingdom, and other nations differ in both large and small ways from U.S. law.

~These are plain-language definitions. They don't cover every nuance of the law.

~They were written by experts in intellectual-property law.

~The definitions of derivative and transformative use (within Fair Use) need expansion. I will look for good plain-language definitions of them for later posting.

~A key term for purposes of the recent fandom debates is appropriation. The definition provided below is not sufficiently detailed for fandom's needs. I will look for futher language on that, for later posting.

A few other general points that may be obvious:

It should be clear by now to everyone who has been following the copyright-infringement/plagiarism discussions lately that there are very few bright lines in intellectual-property law. That's why courts exist: because the law--and indeed more general ethics debates--are case-specific. Clarity in rules is good when we are teaching students to have strong principles and high ethical standards. But clarity in rules is also a kind of rigidity, which can easily lead to both intolerance and censorship, as well as a stifling of creativity.

"Legitimate use of another person's work" is a huge concept, embracing texts, images, music--all sorts of things that we can't always imagine when we are trying to formulate rules.

One area of recent activity in the U.S. Copyright Office is to encourage specialized communities to develop their own Best Ethical Practices guidelines. (An excellent example is this Documentary Filmmakers’ Statement of Best Practices in Fair Use.) The responsible fandom might think about working with some knowledgeable attorneys to develop guidelines of this kind. It would help novices to have such a statement, or statements.

FWIW, the Doc Filmmakers worked for more than 2 years on their statement, held numerous high-level conferences and meetings in the process, and enlisted the help of some of the U.S. law schools' best thinkers on this topic to write their text. It's not easy. Also, the statement has attracted a great deal of debate--including heated and angry debate. Some of which has been healthy. (Documentary filmmakers are among the artists most adversely affected by the increasingly aggressive assertion of copyright control over original material, which is crippling their ability to quote freely in their work.)



Intellectual property is a concept in law that defines creative products—ideas and expressions—when fixed in a tangible form. The categories of law that deal with intellectual property are, broadly speaking, copyright law, trademark law, patent law, trade secret law, and the rights of privacy and publicity. (And there are some other kinds of intellectual-property law as well.) These areas of law regulate the relationship between an owner of intellectual property and a user of that property.

Intellectual-property law is embedded in the U.S. Constitution (Article 1, Section 8, Clause 8):

"The Congress shall have Power […] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The Framers recognized that to ensure the nation’s creative productivity, it was necessary that creators be guaranteed, for a defined period of time, exclusive rights to benefit from their creations and to control the uses to which those works might be put.



Copyright is a branch of intellectual-property law that regulates rights and uses of particular kinds of intellectual property.

Copyright protects works such as poetry, movies, CD-ROMs, video games, videos, plays, paintings, sheet music, recorded music performances, novels, software code, artwork, sculptures, photographs, choreography and architectural designs.

Copyright does not protect facts or ideas.

Copyright protection identifies an owner of intellectual property (often called the “author”), who retains and may assert certain exclusive rights and controls over uses of that material. The owner of intellectual property is automatically the creator, unless the work was created in the scope of employment (in which case the copyright to the work belongs to the employer, see "Work-for-Hire" below) or the creator has assigned that ownership to another party. That is, copyright is a property right that belongs to the creator of the material (usually called the “work”). It stays with the creator, and does not travel with the work—even if ownership of that work is sold or transferred—unless the copyright owner explicitly transfers the rights.

Unless otherwise assigned, and until it expires, a copyright is inherited by the creator’s heirs.

Intellectual-property rights may be used or transferred under copyright law, or in some cases through a separate instrument, such as a license or contract.

To qualify for copyright protection, a work must be “fixed in a tangible medium of expression.” This means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium, including a computer’s random access memory (RAM), the recording media that capture all radio and television broadcasts, and the scribbled notes on the back of an envelope that contain the basis for an impromptu speech.

In addition, the work must be original—that is, independently created by the author. It doesn't matter if an author’s creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity, or aesthetic merit.

To receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book’s white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.

Copyright does not last forever. It has a term, after which it passes into the public domain.

An unauthorized use of copyrighted material is an infringement of copyright and is subject to civil penalties, including fines, injunctions, and other remedies. (But see Fair Use, below.)



Public Domain The term “public domain” does not refer to “everything that is in public.” It describes any intellectual property that is not protected by copyright (or other intellectual-property law).

A work may be in the public domain because its copyright has expired or because it was never protected by copyright. (E.g., a work created by an employee of the U.S. federal government in the course of his or her duties is generally in the public domain.) So, for example, just because something is found on the Internet does not mean that it is in the public domain. (Conversely, a copyright notice attached illegitimately to a work that is in the public domain does not remove the work from the public domain.)

Copyright protection does not last forever; it expires. Once the copyright on a work expires, it enters the public domain forever. This means that it is not protected by intellectual-property laws: it’s free for anyone to use without permission.

Works in the public domain may be used freely, regardless of who owns the objects. (E.g., a painting by Rembrandt is in the public domain, even if the painting is owned by a museum.)

Sooner or later, all works pass out of copyright and into the public domain. This is because the Framers of the Constitution recognized that to ensure the nation’s creative productivity, it was necessary that after a defined period of time creations be made available to subsequent users without bar or constraint.



License, contract, and agreement
Although intellectual-property rights are established and managed under copyright law, sometimes uses of copyrighted material may be regulated by a contract or license, which is an agreement between (usually) two specific parties that grants specific rights and obligations to each.

There are many kinds of contracts and licenses, and many ways in which contract and license law differ from copyright law. For our purposes, the following are the key points:

•A contract or license agreement is between the parties who sign it. Unlike a copyright, it obligates them; it does not obligate any other parties.

•The terms of a contract may supersede those of copyright law in specific circumstances. For example, a licensee may contractually agree not to further reproduce a work that is in the public domain. A licensor may contractually agree to waive copyright control for a particular use.

•A license to use copyrighted material is typically nonexclusive, meaning that the copyright-holder is granting specified rights to one party, and reserve the right to grant the same or other rights to other parties.

•A license agreement granting permission to rent or reproduce a photograph (say, from a photograph library) may not--and probably does not--include permission to reproduce the underlying work. If the underlying work is protected by copyright a separate permission is needed from the copyright-holder of the underlying work (typically the artist). Similar complications may exist for textual works that contain other, embedded copyrighted material.



Fair use is a copyright principle that entitles users to freely use materials that are still protected by copyright (i.e., not in the public domain) for certain purposes and in some contexts. If a copyrighted work is used under the fair-use doctrine, the user does not obtain permission for that use from the copyright owner. Fair use therefore never applies to works that are in the public domain, but only to works that are still in copyright.

A primary purpose of fair use is to permit commentary, criticism, parody, and other purposes (such as some educational purposes) that may require use or incorporation of copyrighted material. Absent this freedom, copyright owners could stifle any negative comments about their work.

Fair use must always be asserted with respect to a particular copyrighted work in a particular use. It is never universal. So, just because, say, reproduction of a detail of a sculpture by Jeff Koons might be a fair use within one particular context (say, a particular review of a Koons exhibition) does not mean that another reproduction of that same detail (say, on the cover of a restaurant menu) is also a fair use. Nor does it necessarily mean that other reproductions of other artworks in the exhibition review are necessarily fair uses. Each use must meet the test of fairness individually.

Fair use may be asserted in a wide range of contexts, but it may not be asserted in all circumstances (or copyright protection would be meaningless). To determine whether a use is fair or not can be complicated and a bit subjective. Broadly speaking, each use must meet the standards set forth in the fair-use doctrine, which is a part of the U.S. Copyright Code. The doctrine lists 4 factors that contribute to a use being fair or not. The proposed use need not necessarily meet all 4 factors, but should usually meet at least one strongly, or several quite strongly. Fair use cannot be reduced to shortcuts such as "if it's a short quotation it's a fair use," or "using the whole work is never fair."

Another measure of whether a use is fair or not depends on the determination of whether the new use is derivative or transformative. (Definitions to come.)

The absolute determination of whether a particular use is fair or not only occurs if and when the claim is tested—that is, if the copyright owner contests the fair-use claim through a legal proceeding. This uncertainty leads some users of copyrighted works (such as some publishers, the Metropolitan Museum among them) to be conservative in the assertion of fair use.




Exceptions to Copyright Ownership: Work within the Scope of Employment and Work-for-Hire

There are two main exceptions to the general rule that a creator/author owns copyright to his or her work as of the time of creation.

•If a work is created by an employee within the scope of employment, the copyright to the work is owned by the employer. Such a work (often called “work product”) is considered a “work-for-hire.”

•If a work is created on commission by someone who is not an employee (such as on a consulting or freelance basis), the copyright to the work is automatically owned by the individual doing the work, as usual. However, if there is a written agreement between the commissioning entity and the creator specifying that the copyright to the work is owned by the commissioning entity, then this, too, is a “work-for-hire.”

Work-for-hire status can only apply to 8 types of work:

1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology
2) part of a motion picture or other audiovisual work
3) a translation
4) a supplementary work such as an afterword, introduction, chart, editorial note, bibiliography, appendix, or index
5) a compilation
6) an instructional text
7) a test or answer material for a test
8) an atlas

Works that do not fall within one of these 8 categories constitute works made for hire only if created by an employee in the scope of his or her employment. And of course works within these eight categories are not necessarily works for hire.

When a commissioning party such as a business retains a nonemployee to perform or create any work, a written contract should specify the understanding of who owns the copyright to the work product.


f
Plagiarism, Copyright Infringement, Appropriation

Plagiarism is distinct from copyright infringement, and refers to the failure of a user of creative work to identify its creator—or even to claim to be that creator. Plagiarism may be a kind of copyright infringement—subject to prosecution—but it may also occur with the misuse of work in the public domain that is not protected by copyright. Whether or not an act of plagiarism violates copyright law, good ethics usually require that the originator of a work be identified when that work is used subsequently. (But see "Appropriation," below.)

Plagiarism is distinct from failure to cite sources properly.

Appropriation is a term that has evolved in the context of the expansion of copyright law to describe an artistic practice that has always existed. It refers to activities by creators who draw upon or incorporate the creative work of others in their own creative work—usually without citing the source work. An appropriation may be a copyright infringement; it may be an act of plagiarism, or it may be protected under the doctrine of fair use. The primary test of whether an appropriative use is infringing or not is the degree to which the use is transformative as opposed to derivative. (The definition of “transformative use” is found within the fair-use doctrine.) However, the determination of the legal standing of an appropriative use is also highly case-specific and contextual.

These definitions are based upon the Stanford University libraries website: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-a.html#1




I am indebted to millefiori for exploring with me in detail on lolaraincoat's LJ some of the ways in which the concepts of plagiarism and appropriation play out in literature in general and fanfic in particular. (Our long exchange begins here for those interested.)

While responsible members of the fanfic community are right to call upon fanfic authors to meet good ethical standards (which in usual practice means putting quotation marks around quotations, and citing sources), it's important for us all to recall that the use of uncited quotation embedded within a work of fiction is a very old practice, and in the right circumstances is widely accepted. So I am repeating (slightly edited) one chunk of my discussion with millefiori here, giving an example of two mainstream novelists who embed uncited quotations in published novels:

I don't know if James Joyce counts as a mainstream author ;-) but he sure gets taken seriously. Joyce famously advised his readers to ''wipe your glosses with what you know.'' Among the authors whose words are embedded throughout Finnegans Wake is Shakespeare. Joyce scholars being an obsessive bunch, they have counted the Shakespeare passages or paraphrases and come up with the figure of 300 in a 628-page book, an average of 0.48 for every page.

And that's just the ones they found.

And that's just Shakespeare.

And that's just Finnegans Wake.

And that's just James Joyce. Does anyone want to discuss Thomas Pynchon?

* * *

The case of Dorothy Dunnett is clearer example. Dunnett is undebatedly a mainstream author of over 30 novels. She is best known for her series of 14 novels, The House of Niccolo' and The Lymond Chronicles set in the 15th and 16th centuries (brilliant books, btw, and well worth reading). Her heroes in these novels were exceptionally witty, well-read, brilliant men. So they said brilliant witty things. Dunnett herself was brilliant, witty, and widely read, so many of these remarks were invented by her. But hundreds of them were quotes from virtually the full range of texts written before 1600. For the sake of historical accuracy (and not out of fear of copyright infringement), she was scrupulous in not putting words in the mouths of her characters that had not been written at the time when her novels were set (although she did slip up and use numerous translations that were made in the 20th century--and which, BTW, were probably copyrighted translations). But as we know, plagiarism is separate from copyright infringement. It is equally plagiarizing to quote from an author dead 200 years and a living author. It is equally, sometimes, not plagiarizing.

Dunnett also had minor characters do this. And on top of that, her novels include cameo appearances by real historical characters who sometimes speak in their real words and sometimes speak in invented Dunnett text. Virtually none of the quotes is credited or identified. That is, characters do not say, "As my friend Wyatt said the other day..." In one rather famous scene, she has a musician sing entire poems of Thomas Wyatt and one poem by Dorothy Dunnett written in the style of Wyatt; the scene does not clarify if the poems are by Wyatt, Dunnett, or her hero, Lymond.

Why did she do this? Was she a thief? Was she cheating?

Dunnett developed an intricate relationship to her readers, in which the books had a complicated metatextual "wargame" that engaged her readers in a variety of treasure hunts. Not coincidentally, her heroes are also both engaged in treasure hunts of a different kind, within the novels' narratives. So once readers caught on that there were quotations embedded in the novels, spotting them became a game. Whole listservs were devoted to the game. At least one English professor wrote scholarly essays about this. Eventually, one of her readers approached her and her editor, and proposed writing a "companion" that would identify as many of the quotes as possible. This was not planned or contemplated when the books were originally written and published.

Eventually 2 Companion volumes were published--each over 400 pp. They were published not because anyone felt that credit should be given for ethical (or legal) reasons, but because readers were curious and wanted to find out more. Crudely put: there was a market for a "Dunnett Companion." Was the author being sleazy in creating a market for information that in best scholarly practice would have been provided in endnotes? Should we denounce her, her publisher, and the author of the Companions, who earned royalties?

Think it over.

Dunnett herself could not always remember what the quotes were, alas. And she left a few forever unidenfied, so that the wargame could continue.

Ah, you will say: But none of these authors was still in copyright; all were in the public domain; no harm, no foul. But of course, due credit of the kind you desire for fanfic is not a question of copyright infringement, but a question of the author's honesty.

Was Dunnett dishonest? Unethical? Read the books; she lies like Jack Sparrow every chance she gets, in almost every way it is possible for an author to lie to a reader--in service of the creation of a work of art.

ETA: I welcome general discussion of these issues. I would prefer not to discuss any fanfic authors here; particularly, I do not want to discuss in my LJ the merits or demerits of any author who is a member of my friends list. Thank you.

Comments

[sff-corgi.livejournal.com]

Nicely written and generously shared. Thanks. I like the discussion of Dunnett's work, educational. :)

[conversant.livejournal.com]

Thank you for the Dunnett example. It is excellent in the current context; we should all aspire to be as fluent in our fields of literary interest as Dunnett, we might hope that our favourite authors would be even half as creative in their creative appropriations of interesting literature as Dunnett was.


I confess to holding a fairly extreme view on the larger topic: I approve whole-heartedly of richly allusive literature that trusts its readers to be capable of appreciating its creative reworking of appropriated elements. That's how texts and their authors weave themselves into the literary tradition. If/when those authors rise to sufficient prominence, then it is the job of the editors of scholarly editions to identify the sources of the allusions. I view property law's incursions into the literary realm as damaging encroachments on creativity. (Of course, my heart belongs to 16th and 17th C literature, which was financed by patronage rather than by publishing houses, so I will admit to a certain skewed perspective. I am not, however, either so dim or so reactionary that I wish to place the arts back in the pockets of a hereditary aristocracy; all the same, I do not relish the power- and profit-plays of literature's current over-lords.)

[malsperanza.livejournal.com]

You make an eloquent case for rampant copyright infringement. ;-)

My response is (as usual): Yes and No.

I too deplore the expansion of the so-called Ownership Society. Art doesn't flourish under extreme forms of capitalism any more than under extreme forms of socialism. In my day job I work actively on the "fair use" side of some big copyright debates.

That said, I also want artists to earn a living from their work--and as you note, the patronage system isn't a viable option anymore (& had its drawbacks too--cf. Counter-Reformation: Bruno, Giordano, burning at stake of). Thus, I support the active assertion of copyright, though the constant extensions of its term over the centuries & the lack of strong international fair-use exceptions, is a problem--especially as the Internet becomes a good venue for publishing. And I believe that credit where due is a healthy way to respect and foster the originality & creativity we all want to encourage.

But the thing about intellectual property law, like much civil law, is that it almost all operates in a gray area--not black-and-white like criminal law. It's contextual and case-specific.

What we've been seeing in the fandom lately is an attempt--clumsy, deeply flawed and sometimes maliciously motivated--to come to grips with an essential dilemma deliberately embedded in the US Constitution, right there in Article 1: The law constructs an intentional tension between the owner of copyright and the user of copyright. The Framers recognized that this tension was healthy. Because there are 2 interests at stake: the creator of a work of art and the creator of the next work of art that absorbs aspects of the first. And these 2 interests must be balanced, and compromises reached.

I also subscribe to the corollary that citation and crediting of sources are generally Good Things. But similarly with appropriation there are opposing interests at stake. There are the original 2 interests of the copyright holder in the underlying (i.e., appropriated or quoted) work, and the copyright holder in the second, new work that embeds appropriated material. On top of those 2 are 2 more: the reader's interest in reading an intact artwork; and the reader's interest in knowing where to go to find the original context for any embedded material that is not original but reused.

It gets very layered, and the only good solution is for all of us to exercise sound, thoughtful judgment in assessing how and when to cite, and what kind and degree of credit to give when we appropriate. Because all creators *do* appropriate the material of those who came before, in one degree or another. (Cf. Isaac Newton, "standing on the shoulders of giants," etc.) The key point--the one mandated by law--is that we do so case by case, individually and contextually. This is not shoddy moral relativism; it's how the law works.

The law won't accept the idea of a whole class of works that is exempt from the obligation to recognize copyright. So we can't say, "Only scholarly editions need to cite sources." On the other hand, most of the material being debated in the fandom right now doesn't rise to the legal definition of copyright infringement; it may or may not rise to some reasonable standard of plagiarism (though not in my opinion). Thus, we need to look at Dunnett under a lens that is reasonable and responsible for Dunnett, and the "Opal Mehta" case under a lens that is proper to that text. And we may find that one is acceptable while the other is not, even though the kinds of appropriation they carry out appear to be quite similar, and neither is a scholarly edition.

I applaud the fandom's attempt to understand the differences between copyright infringement, plagiarism (illegitimate appropriation), and legitimate (culturally reasonable) appropriation. In the long run that will foster good judgment.

But I must say that the level of discourse has been appalling, even among the smartest, most adult participants. (I dismiss the others as mere thugs and brownshirts.) Almost no one speaking has any real knowledge of the law or of best practices and standards in publishing (scholarly or otherwise). And most have adopted a self-righteous, flaming-sword-of-justice tone that smacks to me of McCarthyism.

[malsperanza.livejournal.com]

Thanks for your thoughtful response. I meant to put that in the header, but forgot!

[conversant.livejournal.com]

:)

That's okay. I meant my first sentence to be grammatically complete.

(Insert 'and' after the comma at the start of the third clause.) You see where my great zeal for editors comes from!

[aithopa.livejournal.com]

Interesting. At first I did a bit of a doubletake because I thought you were using some Scalzi-esque logic like, "All fanfiction is plagiarism!" and that seemed bizarre, but I think I understand now. You're saying that fanfiction is a kind of appropriation - taking a basic idea or structure, twisting it around, etc, to make something artistic and new, and that appropriating actual words and dialogue more specifically, and mixing them up in a different context to create something new, is sort of the same kind of process. I think?

I'm not sure where that actually leaves plagiarism itself, though. When does it count? When it's in a published work, actively infringing copyright? When something is borrowed from something no one has read, therefore can't be allusive? but if no one has read the original, does it matter? Only in academic texts? (Aaand couldn't an argument be made that an academic work is also a synthesis of one's own thoughts and the ideas of previous scholars, and therefore strict crediting is unnecessary? And that one's audience could be presumed to be familiar enough with the major scholars and theories of the day without citation?) Only when someone has deliberate intent to cheat, instead of honest intentions of creating interesting art? I'm still not sure why Dunnett doesn't count and Opal Mehta does - because one was a game and the other wasn't, or one copied extensively from only one source, or...?

I'm just thinking. Say I went off and found five fanfictions, chopped them up, wrote a lot of my own content too, and mixed this all together. Let's say that my product was even better than the original stories because of my mixing skillz. Then I posted it somewhere. If I said, "Yeah, this fanfiction was 100% written by me, I'm awesome", then I imagine I'd get some serious grief. If I said, "This fanfiction uses some elements from Random Fics 1-5" I might still get some grief. If I said "This is a deliberate experiment in fic remixing", I imagine some of the authors might still be irritated, although maybe others would be amused. No matter what I said, nothing could actually be done to me in any serious way, because it's all fanfic, all not-really-legitimate, and they put their stories out there for other people to copy paste if they wanted, so tough. So you've got this intersection of 1) the author's happiness or permission; 2) the readers' expectations; 3) actual artistic aims - was it my experiment, or was I just being lazy? I could see how these things might combine in a volatile way.

Er...anyway, rambling, but it's all interesting to think about. Sorry if I'm accidentally being obtuse about things, and I understand if you don't feel like discussing this any further. :)

[malsperanza.livejournal.com]

These are excellent, astute questions, and the fact that there are no simple answers to them tells you something about how literary concepts intersect with legal ones: which is to say: uneasily.

I'm happy to continue discussing this stuff, as long as no individual fanfic authors are used as examples. We can use invented instances or examples from commercially published works.

The argument that "All fanfiction is plagiarism" isn't altogether unreasonable, but it's not my own position. So lesson one is: When it comes to the concept of plagiarism, there are various perspectives and positions, along a range, or scale. "All fanfiction is plagiarism" doesn't work for me because "plagiarism" is not a neutral term: it is a term that conveys bad-faith and unethical practice. Hence, the word I use is "appropriation." The 2 terms used in law are "derivative work" and "transformative work."

So yes: You have it exactly right: all fanfiction is appropriative by definition. It appropriates fundamental material created and invented by some other creator.

As you say, there are many different kinds of appropriation.

E.g.: a minimal appropriation: writing a completely original work in which one character happens to be named Maturin and one character happens to be named Buffy, and one is named Draco, but they bear no other resemblance to the established characters create by O'Brien, Whedon, and Rowling (the names are then a kind of hommage, and the author's intent is merely to strike up a resonance with those other characters, for some reason)

E.g.: reusing huge chunks of someone else's work but repurposed, with extensions, additions, deletions, etc. (this is typical of quite a lot of fanfiction, where no actual sentences are copied, but characters, situations, story lines, events, objects, concepts, etc. are all borrowed)

E.g.: using 100% of someone else's work and recontextualizing it. This happens quite a lot in visual art. E.g., Manet's painting "Olympia" reworks Titian's "Venus of Urbino": http://jssgallery.org/Other_Artists/Manet/Olympia_in_Juxtaposition.htm

I'm not sure where that actually leaves plagiarism itself, though. When does it count?

The $64 million question. The answer is: plagiarism is a gray area of both ethics and the law. By "gray area" I don't mean that we don't have standards and ethics; but that each case must be examined individually. There is no such thing as a whole class of material that is "always" or "never" plagiarizing. That's what's wrong with Scalzi's argument.

Plagiarism only becomes a legal matter when it rises to the level of copyright infringement. That only happens when actual strings of material--sentences, paragraphs, lines of music, etc.--are copied too directly. And even then, in individual contexts, the word-for-word copying may be acceptable in law. Note: the law doesn't care about crediting or citation--in either direction--failure to cite does not make the infringement worse; giving a citation does not make an unauthorized use ok. Authorization means seeking permission from the copyright holder before using the material. Citation is either a courtesy or a contractual condition of permission.

More soon, but I will be cut off by LJ if I go on more here.


A derivative work is one that derives from another creation, and does so without adding enough new creativity to be a whole new work. Such a work

[malsperanza.livejournal.com]

I'm not sure where that actually leaves plagiarism itself, though. When does it count? When it's in a published work, actively infringing copyright? When something is borrowed from something no one has read, therefore can't be allusive?

That's not a good test, because we never know who the reader is, and we can't say "oh, it's famous so it doesn't need citation."

Plagiarism that doesn't rise to the level of illegality--i.e., copyright infringement--is still an ethical violation. So the question is: when does that "gray area" of uncited appropriation "count" as plagiarism and when does it "count" as legitimate?

Answer: depends on the individual instance. Me, I think the fandom is getting wildly bent out of shape over appropriations that are perfectly reasonable in their contexts. And the fandom is getting bent because of its anxiety over whether Scalzi might sekritly be right and everything fanfic does is somehow "bad."

I can try to clear out *some* underbrush.

1. Whether or not a work is published has no bearing on whether plagiarism is occurring.

2. Whether the material being appropriated is in copyright or has passed into the public domain has no bearing on whether plagiarism is occurring. It is as possible to plagiarize Sophocles as to plagiarize Joss Whedon.

3. The difference between a legitimate appropriation and an illegitimate one (which = plagiarism) is subjective and contextual. It depends on each individual instance. It requires the user (e.g., the fanfic author) to exercise good judgment and to weigh the evils of non-citation against the evils of burdening a new creation with intrusive citations. And to weigh the evils of intrusive citations against the good of steering readers to the underlying sources, so that they can have access to that underlying original material.

Imagine a reader who had never read Harry Potter and who falls in love with an HP fic. Wouldn't it be right and proper to let that reader know about Rowling's work? Not only as a courtesy to Rowling, but for the sake of the reader? And wouldn't it also be interesting, because then the reader would have the benefit of understanding the ways in which the fic reconfigured HP? But if that fic also had in it a handful of quotes from a variety of other authors, uncited, maybe a simple headnote mentioning the fact and maybe mentioning the other authors by name, without full bibliographic citation, would be ok. Or maybe the Dunnett approach of total silence about the embedded quotes would be ok.

4. Academic standards are different from other standards because academic writing is research, and it's especially important for researchers to provide clear, informative pipelines to readers so that the quoted material can be traced back to its original context.

5. Deliberate intent to cheat is only one kind of appropriation. When a student does it, in order not to do the work him- or herself, that's a kind of theft, and deserves a failing grade. It's lazy, it's unethical. When an art forger does it, signing Renoir's name to his fake Renoir and selling it for $10 million, that's a criminal act. When an artist does it... well, art cheats all the time, no? In all sorts of ways. (Cf. Plato, Republic, Book 10). Shakespeare stole plotlines. Buffy uses uncited quotations from mythology all over the place. "Cheating" is an extremely subjective term.

[aithopa.livejournal.com]

Whee! Thanks for the lovely long reply. It really did clarify a lot. Food for thought, indeed. I've been thinking about it for the past few days and putting off replying because I'm not sure I'm going to make sense about any of it, but I suppose now's as good a time as any...

People in fandom do tend to be...sticklers about certain things that seem hypocritical, so I can see how the Scalzi types are viewing that as an "honor among thieves" thing. Part of it may be that insecurity, as you say. If everyone else thinks that what you do is cheating because you're using someone else's work as a shortcut, then maybe you want to come down extra hard on someone who does so more explicitly to show that no, you don't like cheating either, see!

It reminds me of a certain thing that used to go on with people who made fanvids, and get really angry at people who reused their fan-made clips in other vids without asking. To an outsider, it seems bizarre that fanvidders who splice up unauthorized material would complain when someone did the same thing to them. The argument that the fanvidders always made was that no one would reasonably believe that the fanvidder had created the source materials, like the movies and music. Someone *might* believe, however, that Fanvidder B had come up with a certain bit of editing which they'd actually stolen from Fanvidder A. Worse, Fanvidder B's work might become popular instead of Fanvidder B's, and steal their popularity, which is the fandom currency. :)

So...I know this doesn't answer you directly, but that's kind of a trend I see in fandom, where 'credit' and 'no money' are given privileged ethical status. You said in the other thread that simplying saying, "JKR invented these characters, not me, and I don't want money from it" doesn't make it any less unauthorized borrowing, and that's true, but it does show what the fan prioritizes. And there's also a sense of community, however illusory - witness plenty of fanfiction writers who become angry if someone tries to write fanfiction about their fanfiction. It's as if borrowing from a higher up is one thing, but doing something against the wishes of someone in the community is just plain bad form, because you're all on the same level.

The fact that your remixes used fanfic is irrelevant. The "not-really-legitimate" argument is irrelevant.

Well, what I meant by that was just that the fanfic writers wouldn't have any legal recourse, I think. :)

All of the above is absolutely correct. And furthermore, all versions might well be incredibly interesting to read.

I think that it could be really interesting to read, too! (I can hardly argue that reusing phrases verbatim in new and varied ways wouldn't produce cool results, being a Homerist :P ). The point is, if I did do it, I would be very careful to get the permission of the original authors, make it clear to everyone that it was an experiment, and even have detailed breakdowns of my changes available on request. Because people would be judging me on my intent, and the outward indicators of intent are my 1&2. If I had honest intent, why would I not get author permission, and tell the readers what I was doing? I might not get author permission if there was a story I really needed for my remix, but the author just didn't want to share. I might not tell the readers it was an experiment if observing their reactions was part of the experiment, I guess, but I'd probably have to say it was an experiment eventually. But though I had artistically valid, legally untouchable reasons, I'd expect people would perceive my remix as a cheap attempt to cash in, without that transparency of intent.

Hmm, I don't think any of that came out right. Anyway. It is a grey area, as you say, and it seems as if what's acceptable in fandom comes from fandom setting its own rules to an extent and cobbling them together from maybe not entirely analagous spheres (like academia). Therefore it's not surprising that what was deemed good for fandom at one time, in one corner, might not be deemed good now, and by a different set of people. I don't know what this has prompted such an insane overreaction. (Although I can guess...maybe a discussion for another time, though. ;) )

We figured they were more actual *guidelines* <--unsourced quotation

[malsperanza.livejournal.com]

So the fandom has two separate tasks ahead of it:

1) To understand the legal and ethical parameters of copyright and appropriation, so as to understand when appropriation crosses a line into plagiarism and/or copyright infringement;

2) To explore the cultural assumptions that are now codified in fandom culture, and that--rightly or wrongly--guide the judgment of fanficcers. Some of those may need to be reconsidered, as the fandom becomes (in some ways) more mainstream.

In some ways, the fandom is doing better with item #2, because that's an area of meta and is of interest to fen and to those who study and write about fen.

On item #1, the main "take-away" point is that the determination is not black-and-white, but a gray-scale, a range, requiring judgment and best-practices guidelines. The only exception--the only bit that *is* black-and-white--is actual copyright infringement. And even then, such a determination can only be decided by a court, where affirmtive defenses such as fair use may apply, & may reverse a determination of infringement. Adnd which is also a contextual measure.

On item #2: You articulate some excellent points, which deserve much more attention. They move the discussion away from the legal and ethical debate about when it is/is not proper (or obligatory) to cite sources. Hence, a separate post is called for.

(I can hardly argue that reusing phrases verbatim in new and varied ways wouldn't produce cool results, being a Homerist :P ).

Yeah, if I were Homer's lawyer, I'd be sending C&D letters to Dante and Tennyson, just to start with. Because, D00d, totally not much with the citing. Not to mention that Homer probably swiped all those epithets from earlier authors, and if he had just bothered to cite his sources, think of the arguments about the origins of world literature we could have skipped. And don't even get me started on this (http://www.amazon.com/gp/product/0060630353/104-1636612-3073559?v=glance&n=283155)

[malsperanza.livejournal.com]

The point is, if I did do it, I would be very careful to get the permission of the original authors, make it clear to everyone that it was an experiment, and even have detailed breakdowns of my changes available on request.

Which might be the right thing for your text, but that approach would be a disaster for, say, Dunnett's work.

Because people would be judging me on my intent, and the outward indicators of intent are my 1&2. If I had honest intent, why would I not get author permission, and tell the readers what I was doing?

I think "intent" is a pretty murky yardstick for measuring the ethics of an author. For on thing, authorial intent is famously unstable. For another, in the realm of authorship and reading, we as interpretive readers are *always* free to disagree with the author's intent (either as stated or as we perceive it).

Of course you will be criticized for your intent--or for what some readers identify as what they believe your intent to be. But that goes with the territory of writing anyway, no? You put your text out there in the marketplace of ideas; and either your boat floats or it sinks. Good luck, little boat. So you need to be guided by other standards than the fear of being misjudged by readers whose own motives and intents you can neither anticipate nor control. The question is: What better standards are available?

I might not get author permission if there was a story I really needed for my remix, but the author just didn't want to share.

This slips back into copyright discussion. Because that is *precisely* what the fair use doctrine exists to resolve--equally operative for fanfic as for any othe created, copyrighted material. It is encoded in law that you may, in some circumstances, use an author's material without permission, and citation or lack of citation has no bearing on that. I can't say that often enough.

I might not tell the readers it was an experiment if observing their reactions was part of the experiment, I guess

OTOH, don't forget Schroedinger's poor maybe-dead Cat: http://en.wikipedia.org/wiki/Observer_effect

What if telling them of the experiment changed the data? Which is surely the case with Dunnett. If the reader knows which words are sekritly quotations, that ruins the whole relationship between book and reader. (Frankly, the relationship between *author* and reader is much less important, no? Which is why I get impatient with the plaintive "But I feel betrayed!" comments. Betrayal by the text is a problem; betrayal by the author is irrelevant.) Somehwere in my LJ I cited the artist Joy Garnett, who paints paintings that use images taken from other people's journalistic photos, deliberately decontextualizing the fragments. So, for that matter, did Warhol in his famous Car Crash and Electric Chair artworks. Sometimes decontexualizing is an important element of appropriation.

but I'd probably have to say it was an experiment eventually. But though I had artistically valid, legally untouchable reasons, I'd expect people would perceive my remix as a cheap attempt to cash in, without that transparency of intent.

TFB, no? Since when is an author motivated by concerns about what readers think? I mean, are you, O Hypothetical Remix Author, really going to be guided by the fear that someone might accuse you of low motives? If so, Abandon ye the Remix Mode, O Author, for ye are pretty much doomed.

The Interesting Stuff

[malsperanza.livejournal.com]

People in fandom tend to be...sticklers about certain things that seem hypocritical, so I can see how the Scalzi types are viewing that as an "honor among thieves" thing. Part of it may be that insecurity, as you say. If everyone else thinks that what you do is cheating because you're using someone else's work as a shortcut, then maybe you want to come down extra hard on someone who does so more explicitly to show that no, you don't like cheating either, see!

The key terms are "cheating" and "shortcut," both of which have a negative charge. If the fanfic author is merely using another author's work as a shortcut, then I'm inclined to agree with Scalzi that plagiarism is occurring, because shortcuts are simply lazy--appropriation due to lack of artistic wherewithal.

But on the whole, I don't think that's what's going on in fanfic. Something much more complicated and hard to sort out--something about the reader's response to a text, involving the desire to absorb and be absorbed by the work of art, to own and reshape it, to invade and violate it, to blend and subvert it. Something vampiric and erotic. (No accident that Rowling and Anne Rice are among the most heavily ficc'd authors, or that so much fanfic involves the deliberate eroticizing of non-erotic texts.)

... people who made fanvids, and got really angry at people who reused their fan-made clips in other vids without asking. To an outsider, it seems bizarre that fanvidders who splice up unauthorized material would complain when someone did the same thing to them. The argument that the fanvidders always made was that no one would reasonably believe that the fanvidder had created the source materials, like the movies and music. Someone *might* believe, however, that Fanvidder B had come up with a certain bit of editing which they'd actually stolen from Fanvidder A.

Uh-huh. Well it *is* bizarre. Because "reasonably believe" isn't exactly a scientifically measurable quantity. And because the bird has flown when the first act of appropriation occurred. This is what I call a self-serving or convenient yardstick--one that draws the line between "legitimate" and "illegitimate" appropriation in just the right place: Me, I am on the right side of the line, but anyone who comes right after me is on the wrong side of the line.

Sounds like, oh, say, folks whose parents were Polish refugees talking about how to keep Chinese and Mexicans out of the US. The odd thing about this fandom kerfuffle is how radically conservative the wankers are. They don't know it, but they are in bed with the most arch-rightwing legal minds. Even in the not-exactly-progressive realm of intellectual-property law, the position that All Uncited Appropriation Is Plagiarism is considered wacky-fringe.

Worse, Fanvidder B's work might become popular instead of Fanvidder B's, and steal their popularity, which is the fandom currency. :)

Aha, this is the crux, isn't it? Fandom has created substitute forms of currency in the erroneous belief that as long as no $$ is exchanged, copyright law does not apply--despite those FBI and Interpol warnings on DVDs that say explicitly that money is not the measure of whether an infringement has occurred.

And because the fandom considers itself progressive, free, open, and community-based, it is vaguely socialist (or anarchist) and hostile in its view of wealth: the more popular (read: wealthy) the fic author, the more permissible it is to undermine that popularity (read: redistribute the wealth).

[malsperanza.livejournal.com]

So...that's kind of a trend I see in fandom, where 'credit' and 'no money' are given privileged ethical status.

I've not seen this so clearly stated before. It taps into a deep, ancient anxiety in art-making about whether earning $$ taints art. Fanfic latches onto the question and makes a virtue of a necessity: Fanfic does not have the option of earning $$, so it claims to earn points in virtue instead. Its hands are cleaner, its motives purer, than those of the (sordid) author who actually wants royalties and commercial success. Hence the sanctimonious tone of quasi-religious moral outrage aimed at a fanfic author who has dared to cross over into original fiction, with agent, book contract, and other markers of market-based legitimation. The tiresome concept of the BNF etc.

This goes a long way toward explaining to me why some otherwise smart, adult LJers have voiced such radically conservative, rigid positions, and in such intolerant language. As thoughtful literary critics, they ought to know better than to lay down absolutist rules, and then to cry "Off with his head!" (Cf. Lewis Carroll [pseud. Charles L. Dodgson], Alice in Wonderland, ch. 8, "The Queen's Croquet-Ground," 1865, work in the public domain).

You said that simply saying, "JKR invented these characters, not me, and I don't want money from it" doesn't make it any less unauthorized borrowing, and that's true, but it does show what the fan prioritizes.

Good point. Of course, the determination of plagiarism or legitimate appropriation should not rely on the social priorities of the fandom. For one thing, there is no consensus in the fandom. For another, it places the yardstick of ethics (and artistic values) squarely in the realm of the popularity contest. Which is what lends fandom its sometimes revolting high-school-clique quality. (No accident that Buffy and HP are sacrosanct texts in fandom... because, liek, high-school, much?)

And there's also a sense of community, however illusory - witness plenty of fanfiction writers who become angry if someone tries to write fanfiction about their fanfiction. It's as if borrowing from a higher up is one thing, but doing something against the wishes of someone in the community is just plain bad form, because you're all on the same level.

Cf. above, re Mexican immigrants. Communities draw boundaries as an act of self-definition. Those boundaries then get tested, and the communities react either repressively or progressively, depending on their self-confidence, resources, and underlying motives.

it seems as if what's acceptable in fandom comes from fandom setting its own rules to an extent and cobbling them together from maybe not entirely analagous spheres (like academia).

Yep.

I don't know what this has prompted such an insane overreaction. (Although I can guess...maybe a discussion for another time, though. ;) )

Green-eyed envy, mostly. I say it's spinach, and I say the hell with it. (Cf. E. B. White, caption to Carl Rose drawing, The New Yorker, Dec. 8, 1928; repr. in Lee Lorenz, The Art of The New Yorker, 1925-1995 [New York: Alfred A. Knopf, 1995], Copyright © The New Yorker; quoted under fair use, although citation in this instance pretty much ruins the punchline, don't it?)

Last bit

[malsperanza.livejournal.com]

I'm still not sure why Dunnett doesn't count and Opal Mehta does - because one was a game and the other wasn't, or one copied extensively from only one source, or...?

The reason you're not sure is that it's a bit of a gray area. What separates the two, really, is that "Opal Mehta" incorporates large amounts of word-for-word quotation from one other book, and that book is a copyrighted book. So "Opal Mehta" isn't just plagiarizing; it's actual copyright infringement, subject to lawsuit. And to be blunt: that's why the poor Harvard kid's contract got canceled.

Dunnett is an interesting case because if you wanted to be really snarky, you could argue that she is a plagiarist and even possibly a copyright infringer. (On the legal side, she is probably protected by the concept of "fair use," which I won't go into here.)

Does she "cheat" the reader by making us think that she *and* her hero are incredibly witty and profound, when really the wit and profundity belong to 300 or 400 of the greatest writers and poets of the ages? Um, sure. But gee, I'm shocked, shocked to find that gambling is going on in here! (Note uncited quotation... and if you don't know what that line is from, sue me and I'll tell you.)

Kaavya Viswanathan, the author of "Opal Mehta" chose to closely mimic two other books by an author named Megan F. McCafferty, using not only actual passages of quotation without permission (which = copyright infringement) but also to create a story that borrowed heavily from one of them, McCafferty's "Sloppy Firsts," without permission or acknowledgment. So there was both a failure to acknowledge McCafferty's contribution to "Opal Mehta" and a failure to ask McCafferty for permission. The combination was lethal for Viswanathan, though the kid was what? 17? And if we all struggle with this stuff, why should she have known? Her publisher was remiss and paid the price.

So the real question is: Why is Dunnett ok? I think I'll try to answer that in a post in my LJ, where I have more room.

Say I went off and found five fanfictions, chopped them up, wrote a lot of my own content too, and mixed this all together. Let's say that my product was even better than the original stories because of my mixing skillz. Then I posted it somewhere. If I said, "Yeah, this fanfiction was 100% written by me, I'm awesome", then I imagine I'd get some serious grief. If I said, "This fanfiction uses some elements from Random Fics 1-5" I might still get some grief. If I said "This is a deliberate experiment in fic remixing", I imagine some of the authors might still be irritated, although maybe others would be amused. No matter what I said, nothing could actually be done to me in any serious way...

All of the above is absolutely correct. And furthermore, all versions might well be incredibly interesting to read.

... because it's all fanfic, all not-really-legitimate, and they put their stories out there for other people to copy paste if they wanted, so tough.

Here's where I disagree with you slightly. The fact that your remixes used fanfic is irrelevant. The "not-really-legitimate" argument is irrelevant. Even if you used published, copyrighted, legitimate texts, you might well be perfectly legitimate. A perfect example of this is Jean Rhys's novel Wide Sargasso Sea, which "remixes" Jane Eyre. It depends on the kind, degree, and purpose of the "remixing."

So you've got this intersection of 1) the author's happiness or permission; 2) the readers' expectations; 3) actual artistic aims - was it my experiment, or was I just being lazy? I could see how these things might combine in a volatile way.

Exactly. I think you have answered your own question. It's volatile; which also, sometimes, is a good thing. :-)