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The Proper Application of Fair Use

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In tuth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.

Justice Story in Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass.1845).

One of the terms that has been bandied about during and post Savage Gate is “fair use.” In the Signet response to my inquiry regarding the allegations against Cassie Edwards regarding copying, I received a strange and bit confusing reply:

The copyright fair-use doctrine permits reasonable borrowing and paraphrasing of another author’s words, especially for the purpose of creating something new and original. Also, anyone may use facts, ideas and theories developed by another author, as well as any material in the public domain. Ms. Edwards’s researched historical novels are precisely the kinds of original, creative works that this copyright policy promotes.

This mixing of public domain and fair use is a bit misleading and it seemed to me that there was quite a bit of confusion about what fair use is. I’ve seen it used in terms of whether use is fair but the “fair use doctrine” has a specific legal meaning and it is not a defense to plagiarism but rather a defense or an excuse for an infringement of someone’s legal copyright.

Copyright Law v. Public Domain

The term “fair use” is derived from a statutory defense in the Copyright Act of 1976. The Copyright Act gives a creator of an original work, such as an author, a set of exclusive rights to distribution which includes copying. When an author signs a contract with a publisher, that author gives up a certain part of her exclusive rights in exchange for money and other acts of publishing (i.e. advertising, access to distribution channels, registering of the copyright, etc). For the period of time set by the contract, the publisher is then the “owner” of the rights sold to them.

Ordinarily it is the right for a publisher to make as many copies as it can and sell them throughout a geographical region (i.e. US, Great Britain, Worldwide, in e form, in audible form, etc.). The Copyright Act and its subsequent amendments grants the creator of a work these exclusive rights for a period of time (time of death + 70 years). Once the time period expires, the work enters “public domain” and the public can do with it what it wishes (i.e., Mobile Read users are busy coding public domain works for ebook readers).

Fair Use Excuses Infringement

It is important to note that the fair use is an exception to the exclusive right of ownership. In other words, unless you are infringing on someone else’s copyright, the fair use doctrine has no applicability.

To invoke the usage of “fair use” is to admit that you have infringed but that the infringement is excused because it falls under the “fair use doctrine.” The usage of it by Penguin in its statement is a bit curious because on the one hand the statement says the use is “fair use” implying that there was infringement. The second part, then, invokes public domain concepts.

If you copy a public domain work, you are not violating any copyright and thus are in no need of the “fair use doctrine.” This is part of the legal v. ethical dichotomy that exists between copyright infringement plagiarism. Because the “fair use doctrine” excuses only copyright infringement, it is completely inappropriate to use that as a defense to plagiarism. No one owns the copyright of public domain works, thus the use need not be measured by the copyright rules. (Hence the “public” of “public domain”).

Definition and Purpose of Fair Use

The specific statutory provision is the contains the Fair Use defense is  § 107 of the Copyright Act of 1976 which states:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Under the fair use doctrine, individuals can use copyrighted material without the permission or consent of the original rights holder. The purpose of the fair use limitation is to promote creativity which is the underlying reason for the Copyright Act which is “the Progress of Science and useful Arts.”

History of Fair Use

There are essentially two kinds of law: common law and statutory law. Statutory law is the laws that are made by the legislature and signed by the governor or the President. Common law is law that is developed through the opinions of judges.

The fair use doctrine stems from judicial exceptions carved out beginning in the 19th century for limited uses of copyrighted work. Usage would be excused if the copied portion was small and was for a “socially beneficial purpose.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105-25 (1990). In 1976, Congress transformed the judicial doctrine of fair use into a statutory one but the courts still rely on the body of judge made law that stems from the 1850s.

Determining Fair Use (applying the principles):

Determining what is fair use is a balancing test. If you think of the scales of justice, the courts weigh the rights of the copyright owner on one side and the public use on the other. The goal is that the rights are balanced against the original purpose: fostering creativity and original thought.

Each instance of “fair use” is determined on its own facts, in a case by case basis (which is why you can’t say that fan fiction is strictly illegal or infringing. Some fan fiction that copies from an original composition may very well be fair use).

In Savage Gate, one book could be said to have been “fair use” and another infringing. In examining the principles of fair use, I am going to use two books and two sources: Paul Tolme’s article about ferrets and Savage Bear and Oliver La Forge’s Laughing Boy and Savage Dream. Because it is a rather complex topic, I’ll address the four factors in different posts.

1. Purpose and Character of Use

Purpose and character of use can be distilled into two major categories (this is very broad and can include other meanings but for the purposes of this article I am simplifying)

a. Transformative nature
b. Commercial use

a. Transformative nature.

One of the most recent rulings on the fair use doctrine was the 1994 case involving 2 Live Crew’s remake of “Oh, Pretty Woman.” The remake, Pretty Woman, was originally sent to Acuff-Rose Music, Inc., the owner of the rights to the song penned by Roy Orbison and William Dees, with a request for permission and an offer to pay licensing fees. Acuff-Rose refused to agree to the parody but 2 Live Crew proceed to release “Pretty Woman” in the summer of 1989. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Acuff-Rose brought suit against 2 Live Crew for infringement. At the beginning of the opinion, Justice Souter admits that but for the fair use doctrine, 2 Live Crew would be infringers. 510 U.S. at 574. But the fair use doctrine allows the use of copyrighted material, without the permission and consent of users, if the material is transformative. The very nature of parody is the copying or imitation of an original work (as opposed to satire or some other nature of commentary). This does not mean that all parody is exempt from infringement claims. Nor does the success of a parody mean it is fair use. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F.Supp. 267, 280 (SDNY 1992) (Leval, J.) ("First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.")

The test for how much of the original work is fair use for a parody is the term “conjure up” (real test, not pulling your leg here). The parody must “conjure up” enough of the original work to make the object of criticism recognizable. At some point, though, usage of the original loses its parodic quality and instead becomes a substitute for the original and then loses its “fair use” protection.

The purpose of the use by Ms. Edwards is to add authenticity to her books. In the media blurbs, she is cited as bringing authentic native indian culture into her works. Her career seems to be built upon her writing of historical romances featuring “Indian lore.” Edwards did not mean to parody or satire and therefore wasn’t transformative in that manner.

On the other hand, Edwards fictional novels of Native Indian romance was not intended to supplant Paul Tolme’s articles on ferrets. There is nothing about Savage Bear that adds new meaning or different character to Tolme’s work. It is used as Tolme used it, a narrative on the activities, backgrounds, and habits of ferrets. There was no additional information about ferrets that Edwards imparted to her readers. The ferret article was not a launching pad for additional research and insights.

In regard to Laughing Boy, however, I would argue that authors of historical fiction would find a decreasing market share if other fiction authors were allowed to incorporate fictional prose from one to another. It is far less transformative from fiction to fiction than it is from non ficton to non fiction although, as the Supreme Court noted in the Harper Row case, “Creation of a nonfiction work, even a compilation of pure fact, entails originality." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 539 (1985)

b. Commercial use

Sony Corp case is often cited for the following statement as it relates to commercial use:

Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision…. [A]lthough every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter.

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448-49, 451 (1984).

While the Supreme Court’s edict regarding commercial use seems absolute, it has not been applied in that manner. In Acuff Rose case, the Court evinced a certain change of heart saying “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of  § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country” Acuff-Rose, 510 U.S at 584.

But when the commentary or use of the copyrighted material does not address the substance or style of the original work or the “the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id. at 580.

Because Edwards use of the copyrighted material, both Tolme’s work and the work of Laughing Boy, lack any kind of commentary for education purposes, the claim of fairness is diminished. Edwards clearly relied on works from Tolme and La Forge to enhance the authenticity and sound of her own books, to distinguish her own books from other Native Indian works and possibly even other historical novels. In using word for word lifting of the original passages, Edwards “avoids the drudgery in working up something fresh.”

For example, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997), Seuss challenged a pending Penguin publication involving the retelling of OJ Simpson’s trial in Seuss verse. Even though none of the original words were copied, the stanza, meter and STYLE of the original work was. The 9th Circuit found the Penguin publication to be infringing because the work and illustrations “simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have "no critical bearing on the substance or style of" The Cat in the Hat.” Id. at 1401.

Similarly, Edwards makes no challenge or criticism of the style, prose, contents of either Tolme’s work or the work of La Forge in Laughing Boy.

Further, "crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Id.

It is arguable that the Edwards works are not transformative in anyway, not undertaken for purposes of criticism or commentary, offering no educational purpose that the original works did not offer, and that the Edwards usage was to increase the commercial viability of her own work. My opinion is that this factor weighs against “fair use” but there are three other factors to measure.

Next week: Blogger ethics and then returning to fair use with factor no. 2: nature of the use.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com


  1. Jackie L.
    Feb 05, 2008 @ 08:11:41

    “the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh”

    BWAHAHAHA. My thoughts exactly.

  2. Jennifer McKenzie
    Feb 05, 2008 @ 09:49:38

    Wow. Okay. I’m trying to process this. I have a question that may or may not be relevant. If I download a free article from a non-profit website and then use that article, in some cases word for word, for my fictional book, then where does THAT fall in the fair use?
    One of the things about the internet is that it makes many things readily available but it blurs the line (for me) of what the legality may be.
    I mean, I wanted to print the lyrics to a song in one of my books but the publisher couldn’t/wouldn’t do it because of legal issues and I gave full credit to the songwriter and everything.
    I’m a little dense here. If I find an article online and use the info, then I credit them right?

  3. Jane
    Feb 05, 2008 @ 09:57:38

    I can’t really answer your question as it asks for legal advice on a specific set of facts. I can say generally that the rules of copyright do not change simply because the information is published online instead of on paper. Plagiarism, the copying of text (regardless of source) is not a legal concept so I’ll tell you what my take is on the ethics of using public domain works: word for word copying without attribution would not be proper, in my opinion.

  4. Teddypig
    Feb 05, 2008 @ 09:57:47

    NOOOOOO Cassie be stealin’ my bucket!!

  5. Chicklet
    Feb 05, 2008 @ 10:28:20

    I mean, I wanted to print the lyrics to a song in one of my books but the publisher couldn't/wouldn't do it because of legal issues.

    Disclaimer: I’m not a lawyer, I have no expertise in this area. That said, as far as I know, this would be due to copyright issues; your publisher would have had to pay the copyright holder royalties in order to quote the song. Your publisher may have decided the royalties demanded by the copyright holder were too high to justify use of the lyrics in your book.

    An episode of Sports Night titled “Intellectual Property” handled this issue. At the top of the episode, Danny spontaneously sang “Happy Birthday” to Casey in their sportscast, and their network subsequently had to pay substantial royalties to the song’s copyright holder.

    If I download a free article from a non-profit website and then use that article, in some cases word for word, for my fictional book, then where does THAT fall in the fair use?

    I’m by no means an expert, but if I’m interpreting Jane’s essay correctly, I don’t think that would meet the fair use clause because it wouldn’t be transformative enough of the original work.

    From what I understand, “fair use” of a copyrighted work depends in part on whether the user is profiting monetarily from the use; if yes, then it fails the fair use test.

  6. Jane
    Feb 05, 2008 @ 10:38:44

    From what I understand, “fair use” of a copyrighted work depends in part on whether the user is profiting monetarily from the use; if yes, then it fails the fair use test.

    That’s only one factor. I.e., infringement can be found when the infringer is not making any money off the copying. i.e., if I uploaded one of Jennifer’s books here at DA and allowed anyone and sundry to download it, that would be infringement AND I am not making any money off of it.

    But generally, not being a commercial enterprise can help in the “fair use” analysis.

  7. Keishon
    Feb 05, 2008 @ 10:44:34

    I think I get what your trying to say in your article. In essence, Edwards added nothing new to the work she copied word for word. She just straight lifted facts and put them in her story for her own use but attributed nothing to it nor acknowledged it either which still rankles to me despite her ignorance. If she maybe added to those sources she used, meaning that she had an original idea or purpose for the texts that she incorporated in her work, it would have been fair use? She only used those texts for the purpose of authenticity so it would seem which is not trans formative but flat out stealing?

    Fair use as I understand it is that which is borrowed but used for your own creative ideas or original thought is that a fair assessment?

    I can’t wait to read about blogger ethics. I wonder what that would entail.

  8. Sunita
    Feb 05, 2008 @ 10:51:03

    I have a question that may or may not be relevant. If I download a free article from a non-profit website and then use that article, in some cases word for word, for my fictional book, then where does THAT fall in the fair use?
    One of the things about the internet is that it makes many things readily available but it blurs the line (for me) of what the legality may be.

    This sounds like it falls within the murky area (IANAL, so this is not an opinion informed by legal training but by an academic knowledge of copyright and plagiarism). I definitely agree with Jane that word for word is a bad idea even if it’s not strictly illegal. But remember that copyright (and those articles are copyrighted regardless of where they are found or whether they cost money) protects the ideas and the expression. So word for word raises the possibility that you are taking the expression (problematic) rather than the facts (less problematic). Fair use may allow you to do so in some cases, but it’s really contingent on the particular case (again, IANAL).

    I also want to point out, as a writer of non-fiction, that what a reader thinks are “facts” in history or science or policy articles/books are often assertions or conclusions, backed well or badly by evidence. In the CE discussions I’ve frequently seen people talk about history books as “references.” But non-fiction writers can be as involved in crafting arguments or narratives as fiction writers, although in very different ways. To think of a piece of written work as neutrally presenting a set of incontrovertible facts is to misunderstand the enterprise. Textbooks, encyclopedias, and other works *designed* as reference material may come close to that, because they tend to limit themselves to agreed-upon facts and descriptions. But otherwise, it’s a problematic assumption. I don’t mean that you shouldn’t use historical or other types of research as reference material, but that you should think of it as crafted in a way that has more similarities to what you do as a novelist than you might realize.

  9. Jane
    Feb 05, 2008 @ 10:53:59

    Obviously, my assessment of Edwards work as applied to the fair use doctrine is exactly that – my own assessment.

    Fair use is one way for people to use copyrighted work to advance “arts and sciences.” (which is ostensibly the purpose of copyrights in the first place). Fair use could be word for word quotation, probably without attribution, so long as the balance of the four factors – purpose and character, nature of the copyrighted work; amount used, and affect on the market – weighed in favor of the use.

    I think Edwards problem was two fold: first copying word for word and second failing to make the copying transformative. For example, perhaps she would be doing an index of all the articles and books on South Dakota scholarship. She might include small quotations of original works, including Tolme’s work on ferrets, to indicate what the article was about. That might be fair use because it transforms Tolme’s work from an original journalistic piece into an index of scholarship.

    There is the google case (It’s Perfect Ten something – I cited it before on the blog) where Google was sued for the image database and its search engines because of course, Google is re-publishing copyrighted materials. The court said that the use of indexing was transformative enough (and other factors including the size of the images were not going to diminish the market for the originals) to be entitled to the “fair use” protection.

    Does that make sense?

  10. Nora Roberts
    Feb 05, 2008 @ 11:19:09

    ~If I download a free article from a non-profit website and then use that article, in some cases word for word, for my fictional book, then where does THAT fall in the fair use?~

    To my way of thinking, if someone else wrote it, it’s not ethically yours to use, not without specific attribution and/or permission.

    I have to ask–and I’m not being snotty–why would you use it? To use it as a resource, to springboard from it, or to put the idea of it into your own words is one thing. To simply lift it is another.

  11. Robin Bayne
    Feb 05, 2008 @ 11:56:18

    I agree with Nora–“why would you use it?” Wouldn’t your story flow better if you put the descriptive (researched) info into your own words, your own style?

  12. Robin
    Feb 05, 2008 @ 11:58:20

    I'm a little dense here.

    Copyright and fair use are extremely complex concepts, which is why, IMO, even legal types sometimes use them incorrectly. Part of the problem, I think, is that the term “fair use” sounds like ‘what’s fair and unfair,’ and that sense is not strictly analogous to the copyright definition of fair use.

    I was taught to think of it this way (for a quick and dirty distinction): copyright is about ownership and permission. Does someone own the rights to a work — to copy it? Technically, just writing something down creates what’s called a “poor man’s copyright” (with limitations, of course, around size, type, language, purpose, etc.), but without federal registration of the copyright, one cannot enforce his or her rights against infringers. So if something is under copyright, you have to seek permission to use it, because someone else owns the right to say who can and can’t copy it. OR, if you decide to use it anyway, you are an infringer who may or may not have a fair use defense that will get you out of paying retroactively for that use (although not necessarily out of getting sued). So the basic question here is, “does someone else own the rights to copy this, and if so, can I use part of it without asking permission?” The second question, of course, may not be answered until after you actually use the stuff.

    In terms of plagiarism, the question is a little different. It’s more like, “did someone else come up with this, and do I need to give them acknowledgment for using it myself?” It’s not a legal question, unless it is bound up with some copyright issue (i.e. you use without permission OR acknowledgment). When, for example, a formerly copyrighted work lands finally in the public domain, the creator no longer owns the exclusive right to copy and distribute it. But the creator is still the creator, and if you decide you want to use something that person has created — even if it’s in the public domain — you can do so without legal permission, but shouldn’t necessarily without acknowledgment of its creator. Again, this determination depends in part on what kind of writing you’re talking about and to some degree on how you want to use it. At that point the issue is, ‘can I use this without having it seem like I’m taking credit for something that isn’t mine?’ Which, as Jane pointed out, is an ethical consideration, not a legal one, depending on the type of work, the community definitions of plagiarism, etc.

  13. Ann Bruce
    Feb 05, 2008 @ 13:29:20

    Wow. Why does the law have to make something that is ethically and morally wrong so complicated? (Yes, that’s a rhetorical question because I know not everyone’s moral compass is the same.)

    BTW, has Penguin or any of Edwards’ other publishers made a recent statement on the issue?

  14. Ann Aguirre
    Feb 05, 2008 @ 14:20:43

    Timely post. I had an issue with my urban fantasy. During the writing process, I found lyrics online to an old traditional folksong called Nonesuch and used it in the manuscript as part of a pagan chant.

    Now that I’m doing edits, I did another search to see if I could find who I should credit the lyrics to. (On the initial site, it just said, “traditional”.) But when I searched by lyrics, I found a site claiming to have written the lyrics to the folk tune in 1969.

    Mind, the version I used is a bit different than this one. The words are not identical. It’s a Wiccan coven based in Cali who say they wrote the lyrics, and it’s listed on their site as copyrighted.

    So in this circumstance, how do I know what transpired? Maybe the witches changed the old words slightly? I wound up deleting the lyrics altogether because I didn’t want to mess with it.

  15. Wandering Chopsticks
    Feb 05, 2008 @ 16:20:50


    I just wanted to say I’ve been finding all of your posts about this issue extremely informative. I noticed you’re going to deal with blogger ethics next post. I’ve been thinking about that an awful lot lately because of your posts as well. Just haven’t gelled enough in my head for me to articulate my viewpoint yet.

    I was wondering if you could deal with issues about borrowing of photographs and in my case, recipes. Most bloggers put up a Creative Commons license with attribution. Some don’t mind sharing as long as they get a link back. But other bloggers have a copyright notice of absolutely no copying without express written permission. Now the nature of the internet being what it is, people will lift regardless. I think the Creative Commons license also confuses many people and they assume they can copy anything as long as they provide a link. So I gave in, and at least requested I be credited if someone borrows my photo or recipes. Of course, I still sometimes see my photo or recipes copied and pasted on someone else’s blog with no attribution back to me, with them pretending it’s their’s. Yes, even food bloggers get plagiarized. One of my friend’s recipes and photos was copied, with another blogger trying to claim credit for it. Of course, I commented and said I knew it wasn’t hers. And Googled several of her other recipes and found she copied them all as well. I don’t know why she did it. She promptly deleted it after she was caught.

    Unless a recipe is my own creation, I alway state where the recipe was inspired or adapted from, with a link back to the creator. That’s akin to an author’s acknowledgment of sources in the book. If someone cooked my recipe, why couldn’t they photograph what they cooked with a link back to me? I spend way more time than I should cooking, photographing, and writing about it. And it really bothers me when someone copies my hard work and slaps it onto their blog without due acknowledgment. Of course, plagiarizers being what they are, someone copied my Korean pancake recipe and labeled it a Vietnamese crepe. Umm, not quite the same thing. And using a pancake recipe to make a crepe won’t yield the same result. But then, plagiarizers aren’t always so smart about these things.

    Heh! I guess I was able to articulate some thoughts! But yeah, can you talk about Creative Commons licenses, and links as crediting sources in the blogosphere? I’ll probably do my post after you give the legal viewpoint. :)


    PS For contemporary books, try Match me if You Can by Susan Elizabeth Phillps and It Must be Love by Rachel Gibson.

  16. Mireya
    Feb 05, 2008 @ 18:28:36

    The copying of material happens all over the internet, reviews are misused that way as well. Just yesterday I was reading about someone who had lifted several movie online movie reviews and uploaded them to imdb claiming credit for them. The rightful reviewer found out about it and there was a big stink raised about the issue. Similarly, romance reviews have been “plagiarized” as well. When I started reviewing in 2003 I remember distinctly that a whole review site was forced to shut because the owner was caught using romance reviews written by other reviewers as her own. Sadly, I’ve forgotten the name of the site and the owner. For some reason Harriet Klausner’s name keeps popping to my head about this particular issue… but that may be just prejudice on my part ;) Either way, the fair use/copyrights thing still is a huge gray area, and particularly as it pertains to online material.

  17. Chicklet
    Feb 05, 2008 @ 18:55:07

    Similarly, romance reviews have been “plagiarized” as well.

    As far as I’m concerned there’s no need to put quotation marks there — any time someone takes another person’s work and presents it as their own, without attribution, that’s plagiarism. It doesn’t matter if the material is in print or online, or if the original writer is a professional or an amateur: Presenting someone else’s words as your own is plagiarism, period.

  18. Seressia
    Feb 05, 2008 @ 19:32:47


    Is that PS in #15 an example of bloggers getting paid to mention other books that y’all were talking about last year?

    (Sorry, feeling a little ornery from being treated like a sheep during Super Tuesday.)

    Jane, as always, thanks for your continued posts on this subject. You have a way of taking a ponderous subject and distilling it down without a lot of head-scratching on my part. My druthers are simply to err on the side of caution: no word-for-word research, lyrics, articles in my work. If I claim to be a writer I should be able to get my point across in my own words.

  19. Robin Bayne
    Feb 05, 2008 @ 19:34:05

    Just to show that this happens in other writing areas too–check out the huge violations reported here.

  20. Ann Bruce
    Feb 05, 2008 @ 20:55:49

    The copying of material happens all over the internet, reviews are misused that way as well. Just yesterday I was reading about someone who had lifted several movie online movie reviews and uploaded them to imdb claiming credit for them.

    Okay, maybe I’m naive, but why would anyone do this?!? Are these people that desperate for attention? Is plagiarizing now the equivalent of a two-year-old throwing a temper tantrum?

  21. veinglory
    Feb 05, 2008 @ 21:02:43

    A recent exposee, repeating one from 2004, showed scientific papers are often self-plagiarised with the scientist wanting to get two or more ‘credits’ for each paper. Every area has people who want to take short cuts.

  22. Wandering Chopsticks
    Feb 05, 2008 @ 21:37:36


    Umm, no. The PS is b/c Jane’s profile blurb says she’s looking for contemporary romance recommendations so I recommended. As far as I know, the paid commenters are for no-name books. Phillips and Gibson are big names who don’t need to promote themselves that way.

    I get paid comments on my blog too and they’re really obvious b/c the comments usually have nothing to do with the post and there’s usually a link to some advertiser’s site. Did you even bother to read my comment? Why would I waste my time writing a really long comment about plagiarism and copyright issues as it pertains to bloggers, if all I wanted to do was shill?

  23. Jane
    Feb 05, 2008 @ 21:53:28

    Wandering Chopsticks is legit, Seressia. One of the easy ways to tell this is that the link back will be to the author’s site and not to the commenter’s own site.

    WC – it seems to me that Creative Commons is just another way of bundling rights because each creator of original work has an immediate copyright to that original work once it is created. I.e., it is not copyrighted while it is in your head, but once you put words to paper or images to paper, etc., it becomes “yours”. Creative Commons then is way for you to reserve your rights but still allow you to share your work.

    Because enforcement is nearly impossible without the registration of a copyright, I feel that Creative Commons is more of a community ethical agreement. I.e., it is an honor code. In a legal sense, when a person licenses her work under CC, she is giving a set of permissions to users (copyright, as Robin says, is about permission).

  24. Seressia
    Feb 05, 2008 @ 22:09:05

    I did read your comment which is why your PS seemed apropos of nothing, and why I asked about it. You and Jane have clarified and I am satisfied. Don’t really know how the paid commenting works and don’t really care. Just glad it isn’t drive by recommendations.

  25. Ann Bruce
    Feb 05, 2008 @ 22:17:35


    I’m not certain, but I think this is an example of a paid comment.

  26. Jennifer McKenzie
    Feb 06, 2008 @ 09:01:54

    To my way of thinking, if someone else wrote it, it's not ethically yours to use, not without specific attribution and/or permission.

    I have to ask-and I'm not being snotty-why would you use it? To use it as a resource, to springboard from it, or to put the idea of it into your own words is one thing. To simply lift it is another.

    Totally agree. I think I had this question because I wondered how protected articles and such are on the internet. I often use all sorts of things on the internet (but I don’t lift them).

    I’m just wondering how the laws apply with all the new technology. Plus, I want to make sure I understand what I can use (and give credit due) and what I can’t use at all. Does that make sense?

  27. Tracy
    Feb 06, 2008 @ 14:21:13

    Robin (#12) Your post gave me an “aha!” moment. I’ve been confused for a long time over the copyright and fair use issue. My brain would spin with all the legal info. For some reason, the way you described it here, it clicked and I have a clearer picture now. Thanks!

  28. Fair Use Part 2: Fan Fiction, Rowling and Cassie Edwards | Dear Author: Romance Book Reviews, Author Interviews, and Commentary
    Mar 04, 2008 @ 04:01:07

    […] Harry Potter books written by Rowling is used in the Lexicon and that is infringement. Fair use, as discussed previously, is an excuse for infringers. Essentially it’s like a get out of jail free card. Fair use is […]

  29. Jake
    Sep 09, 2008 @ 21:33:58

    Please compare the two paragraphs. Would you call this plagerism, fair use, or something else?

    a girl of elegant height, perhaps eighteen or nineteen years of age-‘gawky and coltish, all legs and arms, but with the promise of stunning beauty to add graceful curves to the lean lines of her body. She was dressed in a pair of my blue jeans, cut off at the tops of her muscled thighs, and my own T-shirt, tied off over her abdomen. A pentacle amulet… lay over her heart, between the curves of her modest breasts. Her skin was pale, almost luminous, her hair a shade of brown-gold, like ripe wheat, her eyes a startling, storm-cloud grey in contrast. A smile lit up her face, made her eyes dance with secret fires that still, even after all the years, made me draw in a sharp breath. Elaine. Beautiful, vital, and as poisonous as any snake. (from Jim Butcher, Published Author.)

    From the back of the room came a young woman, tall, still gawky and coltish, all legs and arms looking in her late teens, but based on her academic standings must be much older. Her hair was pulled back and she wore thick glasses: definitely not beautiful, or even handsome, but she held herself with poise and it made the lean lines of her body seem graceful and intellectual. She wore pointy-heeled boots, tight boot-cut jeans and a cotton blouse of yellow and she sported a no-nonsense frown. “Thank you, Mr. President.”


  30. Meljean
    Sep 09, 2008 @ 23:08:25

    Something else.
    The only thing I see really similar is the “gawky and coltish, all legs and arms” line … but that’s a description I’ve encountered many times. Heck, even I’ve even used it in my books — not exactly, but close.

    Descriptions can be similar and use similar words without being plagiarized. It’s when a passage is deliberately copied (or only slightly changed) that an author runs into trouble. The passages above wouldn’t make me look twice, honestly.

  31. Wednesday Midday Links: Judge Chin rejects the Google Book Settlement
    Mar 23, 2011 @ 12:09:59

    […] of Dear Author will remember, not all unauthorized copying is improper. Some unauthorized copying is considered fair use. Under the fair use doctrine, individuals can use copyrighted material without the permission or […]

  32. The Principle of Fair Use and Image Usage for Bloggers
    Jul 29, 2012 @ 04:01:49

    […] to this. The court is the one who ultimately determines what is fair use on a case by case basis. I wrote a bit about Fair Use back in 1998 and I’ll excerpt some of the important stuff here.  The court measures fair use […]

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