There’s a saying among writers that there is nothing new, all writing is just a spinoff from an earlier story, or idea, or writing, and there is some truth to that. Writers often incorporate not only a feel of previously created work, but specific reference to them. The characters in a book may perform a Shakespearean play, some hit song may be playing on the radio, a well-known poem may be hanging on a protaganist’s wall. There are unending varieties of these references.
How much can you reference someone else’s work, however, before it become plagiarism or copyright infringement? There are legal guidelines that can help you navigate this quandary.
What is a copyright?
Copyright is the exclusive right to print, publish, perform, and otherwise use literary, artistic, or musical material. Certain rights automatically exist as soon as the material is created. For example, if you are an artist, as soon as you are finished with the painting, you own a copyright to that painting.
The material must be fixed in a tangible form before it has any copyright protection. For example, humming a tune doesn’t provide any copyright protection. However, if you write the tune down on paper, then you have a copyright on it.
Copyright protections do not apply to ideas, and do not protect names or short phrases.
Default copyright protections exist whether or not you mark them on the work. Placing the notation “Copyright” and the date and owner is a good idea, it puts people on notice that you are claiming copyright protection of something, but that marking in and of itself does not create the rights.
Copyright protection lasts for the life of the author or creator for their entire life, plus 70 years.
In order to get more expanded legal protections, including statutory damages for infringement of copyright, you can register your work with the U.S. Copyright office.
Avoiding copyright infringement?
When a person holds a copyright to some literary, artistic, or musical material, they hold the exclusive rights to use it. Infringement is the action of someone else using copyrighted material without your permission.
When you are the one using someone else’s copyrighted work, even if it’s just a small portion of a larger work, start with the assumption that you are infringing unless (1) you have permission; or (2) you are engaged in “fair use” of the material.
Permission is easy, at least in concept. Say you are an author and you want to quote the lyrics to a song in your novel. You can contact the person who wrote the song, or the company that holds the rights to it (look at the copyright notice on your recording or sheet music) and ask for permission, explaining how you intend to use it. They may agree outright, they may agree for a fee, or they may not agree. One way or another, you will have an explicit understanding as to whether you can legally use it or not.
I know it seems like permission might be a costly process, but it doesn’t have to be. Keep in mind that referencing their work in your own might give them expanded reach for their own work, especially if you are willing to acknowledge the source and maybe even include a URL or hyperlink to the original source. Good for you, good for them. Obviously, they want to see the context in which their work is being referenced and, if it isn’t flattering, they may not agree.
“Fair use” is another way you can use someone else’s copyrighted material without being guilty of infringement. “Fair use” is defined by law as use of someone else’s copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (17 U.S.C. § 107). If you are writing an article discussing a pop artist’s recent song release and talk about the opening line of the song (and you quote it) evokes a feeling of nostalgia for the 1950s, etc., you are commenting on it, not infringing. If, however, you are writing a novel and your protagonist sings a song to his love interest that is, verbatim, the lyrics of a popular love song, you are most likely engaged in copyright infringement. Simply crediting the source is not enough for “fair use;” you must be engaged in one of the defined purposes.
When a court, or the copyright owners and their lawyers before them, consider whether a certain use infringes on a copyright, the following four factors are considered for a “fair use” analysis:
- The purpose and character of the use, importantly whether it is a commercial use or something else.
- The nature of the copyrighted work.
- The amount of the copyrighted work that you used in your project, whether it is the bulk of the copyrighted material or just a fragment.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
Remember that as a writer you probably don’t want to get to this level of analysis. You are a writer, rework your piece to not infringe. If you really think you need to include copyrighted material and can’t easily get permission or feel confident you fall within the definition of “fair use,” talk to a lawyer. Don’t wait until your book is published before fixing this issue.
Final thoughts
As a writer, you should be relying on your own creativity, not simply piecing together other people’s creativity. Have pride in your ability to create something new. However, if reference to other people’s creations would be helpful to your work, keep the references short and fragmental. The title of a song, a line or two of lyrics, these are fairly safely not copyright infringement. When it doubt, rewrite or get permission.
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Melody A. Kramer freelance writer and licensed attorney. This article is not intended as legal advice for any specific client matter and does not create an attorney-client relationship with any readers.
