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malsperanzaAs 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![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
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.
~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.
