The Facts on Copyright and Plagiarism

By Jennifer Crump

This article originally ran in the May 2008 RWR

With copyright issues dominating the romance blogs and airwaves, RWR decided to speak to an expert to find out just what writer’s rights and responsibilities are with respect to copyright.

Rebecca Tushnet is a professor of law at Georgetown University where she lectures on intellectual property, advertising law, and First Ammendment law. We asked her for her thoughts on writers and copyright.

Crump: What exactly is copyright?

Tushnet: Copyright is the law that protects creative expression.

Crump: What exactly does it protect?

Tushnet: All kinds of creative expression—including books, e-mail, Web pages, photographs, paintings, sculpture, architectural works, computer programs, movies, musical works, and sound recordings.

Crump: Can copyright protect my creative ideas?

Tushnet: No, copyright only protects the particular expression of an idea. So anyone can write a novel about a medical examiner who solves murders or a shapeshifting mechanic who fights supernatural enemies.

Crump: How do I protect copyright?

Tushnet: Today, every creative work is “born” copyrighted—it’s protected by the law from the moment it’s fixed (whether on paper or in a computer’s memory). You don’t need to take any other action to have a copyright, though in order to sue someone for infringement you’d need to register the work. If you find your work copied online, you can often use a notice under the Digital Millennium Copyright Act (DMCA) to get an online service provider to take down the copy. There’s a short description of what the DMCA requires at http://www.ivanhoffman.com/dmca.html.

Crump: If my work is “born” copyrighted, do I really need to register it?

Tushnet: Only to sue, not to get protection. There are some advantages to timely registration—that is, registration soon after creation or publication. Specifically, timely registration affects the availability of statutory damages (which can be quite large) in infringement cases and presumptions of the validity of the copyright and the identity of the author. But these advantages are not decisive. Registration requires you to fill out a form and send $45 and a copy or copies of the work to the Copyright Office. You can learn more about registration at http://www.copyright.gov/register/.

Crump: When is my work protected?

Tushnet: As soon as it’s fixed (see above).

Crump: What is “poor man’s copyright”?

Tushnet: A myth. As I understand it, the idea is to send yourself a copy of your work in an unopened envelope in order to prove the creation date. There are a few scenarios in which you might want to prove a creation date, but there’s no one particular way to do so. The gold standard is deposit with the Copyright Office.

Crump: Is my copyright good in other countries?

Tushnet: Yes. The U.S. has signed several international copyright agreements, the most important of which is the Berne Convention, to which most of the world’s nations adhere. Your copyright is valid in all of them.

Crump: How long does copyright last?

Tushnet: Newly created works by individual authors are protected for the author’s life plus 70 years (or, if there are joint authors, the longest-living author’s life plus 70 years). Works created before 1978 are subject to a variety of complicated rules. There is a handy, but necessarily detailed, chart created by a copyright expert at http://www.unc.edu/~unclng/public-d.htm.

Crump: Do I need to use the copyright symbol on my manuscript?

Tushnet: Not to get legal protection, but it can be a helpful reminder to people that copyright law does apply. It’s also smart as a practical matter to include your name, the year, and any contact information.

Crump: We write as a team. Who owns the copyright?

Tushnet: If you both contribute creative expression and you intend the final work to be a combination of your expression, you are joint authors. You each own a proportional share of the copyright (with two authors, each owns half; with three, each owns a third; etc.), and each of you can grant nonexclusive licenses. You can vary these rules by having an explicit contract defining your respective rights.

Crump: When can I use an author’s work without permission?

Tushnet: There are lots of times when quotation, transformation, or other types of copying are acceptable—book reviews that quote paragraphs of books, parodies, and so on.

 

Crump: What about Fair Use? How do the courts decide what’s fair?

Tushnet: That’s probably the hardest question in copyright law. Fair use is assessed on a case-by-case basis, taking a number of factors into account. First, what’s the purpose of the use? Commentary, reporting, criticism, parody, and other “transformative” uses—uses that have a different purpose than the original—are more likely to be fair use. Separately, noncommercial uses—like taping a show on TV to watch later—are more likely to be fair use than for-profit uses. But lots of valuable expression is commercial; the New York Times book review section is commercial, but its quotations are still going to be fair use. Attribution also matters. If you cite your sources, or if your sources are so well-known that your audience understands that you’re quoting (“Use the Force, Luke!”), your use is more likely to be fair.

Second, what is the nature of the copied work? Courts give more leeway for fair use of published works than unpublished works. They also allow more copying of factual works, like biographies, than fictional works. But again, this depends on the type of use; parodies usually target fictional works, and they’re still considered more likely to be fair use.

Third, how much did the copier copy? Copying less, naturally, is more likely to be fair use. If you’re making a transformative use, you can copy enough to make clear to your audience what you’re targeting.

Fourth, what’s the effect of the use on the market for the copied work? If your use is unlikely to substitute for the original’s market, it’s more likely to be a fair use.

One court found fair use in The Wind Done Gone, a novel based on Gone With the Wind but using a new character to rewrite the racial and gender politics of the original. Another found fair use when a newspaper copied a picture of a beauty queen to illustrate a story about the controversy caused by the picture. Another found fair use when Google copied images from around the Internet in order to create its index and displayed small “thumbnail” pictures as search results. But another court found that a story about the O.J. Simpson trial, The Cat NOT in the Hat, told in the style of Dr. Seuss, was not fair use of The Cat in the Hat. And another found that 300 words directly quoted from Gerald Ford’s unpublished autobiography, plus paraphrasing of other parts, was not fair use even though it was news. As you can see, it’s hard to say in any general terms what fair use is.

 

Crump: What about material taken from the Internet?

Tushnet: Copyright is now a birthright; being on the Internet doesn’t change that.

 

Crump: I believe someone used my copyrighted work illegally. What should I do?

Tushnet: As noted above, if your work has been reproduced on the Internet without your consent, you can file a notice using the DMCA. If the site on which the work is posted complies with the DMCA, this will get the work removed, but you’d have to sue the original poster in order to get damages. That’s what the RIAA has been doing to some music file-sharers.

Online or offline, you can sue the direct infringer—the copier. You will probably need a lawyer. One possibility is to consult your local Volunteer Lawyers for the Arts, an excellent group that offers free legal assistance to artists.

One thing to remember, though, is that ideas aren’t protected, even if they are very clever. So if the copying isn’t verbatim, you might not have a copyright claim. Again, that really depends on the circumstances.

 

Crump: What are the legal penalties for copyright infringement?

Tushnet: In a civil suit, a plaintiff can receive the defendant’s profits and her actual damages—the amount that the infringement cost her, often measured by the amount the defendant would have had to pay to legitimately use the work. Or, if the work was registered before the infringement began or within three months of publication, the plaintiff can choose statutory damages, which can vary from as low as $200 (in cases of innocent infringement) to up to $150,000 (for willful infringement). Statutory damages are measured by the number of works infringed, not by the scale of the infringement—a million copies is the same as one in terms of the available range.

 

Crump: Is there a time limit for reporting an infringement?

Tushnet: Not under the DMCA, for online infringement. For a copyright lawsuit, the statute of limitations is three years—only infringements carried out in the three years before the lawsuit was filed count.

 

Crump: Can I ask you for a comment on the relationship between plagiarism and copyright?

Tushnet: Though people often use the terms interchangeably, plagiarism has significant differences from copyright infringement. Plagiarism, an ethical violation, can occur whether or not there’s copyright infringement. For example, copying some distinctive phrases without credit could be plagiarism, as occurred when an aide to President Bush copied an unusual sentence from the Dartmouth Review. But copying one sentence is too little to constitute copyright infringement, which targets larger-scale copying. Likewise, presenting someone else’s ideas or research as your own in a scholarly context could be plagiarism, but it couldn’t be copyright infringement, because copyright doesn’t protect facts or ideas. On the flip side, it’s still copyright infringement to sell pirated DVDs on the street, even though you’re giving proper credit to the actual authors. Plagiarism is a matter of norms and fairness, not law.

 

Crump: Some final advice?

Tushnet: Copyright is a great tool for rewarding creativity. At the same time, we all draw upon earlier art. Allowing authors to control many wholesale reuses of their expression, while keeping ideas and facts free for everyone to use, balances these competing interests. Copyright can be a partner of freedom of expression if we keep both its benefits and its limits in mind.

 

Jennifer Crump is a freelance journalist, a former RWA board member and a writer of historical romance.