This is topic Attribution, Citation, Rights Infringement in forum Open Discussions About Writing at Hatrack River Writers Workshop.

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Posted by extrinsic (Member # 8019) on :
Ms. Dalton-Woodbury and others' prompting suggested I post on these topics, largely due to questions raised related to the final paragraph below. I'm not a lawyer, nor is this intended as legal advice, though I have completed some coursework in copyright law as it pertains to publishers and writers.
Fellow forum members might have noticed that I'm fastidious, although somewhat casual in terms of MLA or APA standards, about citing and attributing sources of other persons' intellectual properties. When I was in secondary school, source attribution didn't come easily to me. Self-justifying platitudes supported my lackadaisical outlook. "Who's going to know," "I'm not using it to make money," "it's fair use when it's for school term papers" "who's going to care about little ole me," "I'm just using a little bitty snippet." Before my transgressions got out of hand, an enlightened creative writing mentor firmly corrected me. "How would you feel if someone stole your writing creation and represented it as their own?"

A college classmate was quietly expelled for representing another writer's intellectual property as her own. Unfortunately, the act stigmatized her as a plagiarist and impeded her pursuit of a college education. She'd presented the salient passages of a commercially published bible tract in a writing workshop as her creation. Essentially, the tract depicted a method to coerce unwitting individuals into a sacrament practiced by a particular denomination. I happened to have the tract in my possession as a consequence of "witnessing" by a minister who'd picked me up hitchhiking. The woman represented the coercive sacrament as a "live perfomance piece" written by and performed by her. In the beginning of the presentation, after reading the manuscript while she passed out the props, I walked out in a rolling boil. Later, I discretely informed the professor moderating the workshop of my concerns.

I might not have cast stones but for the egregious presumption of coercing me into a religious practice not of my faith. I could have counselled her instead and given her the opportunity to make it right on her own. Maybe even worse, though, in a larger jeapordy to all concerned, the workshop was held in a deconsecrated church of yet another demonination on publicly owned property.

To say I was insulted is an understatement. I did carefully consider the implications of my actions. I wasn't comfortable with my involvement at all. No, it wasn't "cool" of me to inform the professor; however, the professor already had strong suspicions raised by the abrupt, unexplainable elevation in diction, syntax, and punctuation skills represented in the manuscript over the writer's previous submissions. I wound up with a taint of "tattletaling" for my actions. I soothed my concerns in that regard by referring to the college honor code. It was my obligation to report the act.

Fair use, open source, much of anything intellectually created by anyone anywhere anymore is protected by law from infringement by the U.S. Copyright Act in its present iteration. My guiding principle is if it's someone else's creation, attribute, cite, acknowledge, even if whatever it is is in the public domain.

But even then, some resource material shouldn't be published anywhere by any unauthorized party. I don't post excerpts on this forum or anywhere from Chicago Manual of Style because the publisher explicitly forbids any reproduction in any medium, specially emphasizing digital publication, in part or whole, without express written permission. They will and have sued for infringement regardless of proper attribution. Sure, little ole me ain't that much of a bother. The cost of going after me far outweighs any damage I might do, maybe. But I'm not willing to expose myself to litigation. Nevertheless, preserving my honor and reputation prohibits me from even considering any kind of infringement. Nor especially do I wish to inadvertently expose a reputable organization like Hatrack River, which conceivably could be a worthwhile target of infringement litigation.

[This message has been edited by extrinsic (edited September 04, 2009).]

Posted by Andrew_McGown (Member # 8732) on :
Are you talking about passages lifted holus-bolus without attribution and presetned as original work?

Has that been happening?

The only time I as aware of it here was when someone tried to prove a point by submitting a first 13 to F&F from an published book. It didn't work and they were 'embarrassed' by it (at least they should have been).

Or are you also including concepts, format, structure etc?

[This message has been edited by Andrew_McGown (edited September 04, 2009).]

Posted by extrinsic (Member # 8019) on :
No, no accusations or indictments, just cautionary advice. I regularly post responses on style questions and have been asked why I don't excerpt from Chicago chapter and verse. Other topical information in the above post is anecdotal as regards my experiences with rights infringements. It's always a calamity for all concerned.
Posted by philocinemas (Member # 8108) on :
I can understand direct quotations as being a problem for the publisher's of The Chicago. However, I cannot see that paraphrasing or fashioning an original example from that source and then citing the source could be prohibited. That is what you seem to be stating unless I've misunderstood.

Otherwise, I agree that we should always cite our sources. I even prefer that people use appropriate italics or quotation marks when referencing, though I've been guilty of that laziness on occasion.


Posted by Kathleen Dalton Woodbury (Member # 59) on :
I asked extrinsic to let you all know that for some copyright owners, even fair use quoting isn't allowed.

I wasn't away of the problem with the Chicago Manual of Style and since writers use it rather often, the temptation to quote from it could have dangerous results.

Thanks, extrinsic, for letting people know that even with fair use they need to be careful quoting published work, even if they give credit and are careful to attribute properly.

Posted by extrinsic (Member # 8019) on :
The at times ironical, satirical, farcical, self-controverted and convoluted logic, or self-deprecating tone of some entries in Chicago make me giggle and tempts me to share them. Maybe they're not so funny to others though. I could hardly do them justice in a paraphrased reiteration. Also, the whole thing is available in book, online (free trial period), or CD medium to anyone who has a strong interest. As editor, it's one of my reference bibles. My other style manuals for different disciplines are devoid of any humor. Webster's Dictionary of English Usage is even more humorous, to me, than Chicago.
Posted by rstegman (Member # 3233) on :

You might not be big enough for them to go after,
But they can go after the board for having copyrighted works on it.


Posted by Robert Nowall (Member # 2764) on :
Well, speaking as one who forayed in fan fiction for a few years...where beside swiping the characters and settings and all that from one specific television series, we also borrowed from anywhere and anyplace we deemed appropriate for our stories...I'm inclined to think that copyright is more of a nuisance and a barrier than a great help and enriching tool.

(Of course, we got clean away with it...nobody bothered us about it...)

((Further of course, I don't post it here, and only refer to it in oblique terms---you'll notice I don't name the particular series---and, besides, I'm not writing any of it right now.))

(((Further further of course, I wasn't representing the characters and settings as my own---I might perhaps show off or pass around one of 'em as a sample of what I could write, but I'd never make any claim to what I didn't create.)))

The story that I remember best about copyrights being a pain involved the Charlie Chan books written by Earl Der Biggers. A semi-pro publisher wanted to publish some new editions---they were last in print in the 1970s from a paperback publisher---but found they couldn't locate the estate to secure permission. There was a daughter who couldn't be found, addresses that were "moved, no forwarding," and so on. Last I heard, they were ready to go when the copyright ran out.

Did copyright help anybody in that case?

Posted by Kitti (Member # 7277) on :
Fan fiction is almost a special case of copyright infringement IMO. Most authors don't really protest it (though some do!) because it's only one step removed from kids daydreaming about their books and inserting themselves in key roles. Before the internet, people wrote fan fiction but you never saw it - no one put it anywhere others could read it! Even now, there's generally no intent to commercialize, and lot of it is crap.

That doesn't make it any less copyright infringement, but to my mind that puts it in the same category as breaking the speed limit in your car. I'm pretty sure anyone who's ever driven on a regular basis has gone 1-5 mph over the speed limit at some point, and they would be mad as heck for getting a ticket for going 1 mph over the limit. It's socially acceptable (I do it all the time). Of course, being socially acceptable doesn't make it any less illegal, and that's something we should all be aware of - there's a difference between what we can get away with and what we ought to be doing.

On a different note, I read something interesting on an established author's site the other day - she had a bunch of books that had gone out of print and all the rights reverted to her. And she was NEVER going to let them be reprinted again because they were her earliest efforts and they embarrassed her now that she was a better writer. She didn't want anyone reading them. Her copyright was protection in a very different way than most of us think about copyright.

Extrinsic - I wish all my students (heck, even half of them would be nice!) were as conscientious as you were. One of the things that drives me craziest about plagiarism cases is when there is clear evidence of plagiarism but it's not "proof" because you can't produce the original text from which the student copied their work. Better 99 guilty go free than 1 innocent be convicted, etc., etc., but it's still frustrating.

Posted by Kitti (Member # 7277) on :
P.S. So I don't accidentally come across as attacking people who have written fan fiction - I did my own dabbling back in the pre-computer days. Never went more than a page or two here and there, and those pages are long since condemned to the shredder, but do I understand why people write fan fiction and appreciate the sentiment behind the genre.
Posted by extrinsic (Member # 8019) on :
Though not a copyright lawyer, I've dared to enter where many fear to tread. As part of my publishing internship project, editor, I was reponsible for copyright due dilligence of rereleasing a work by an author with whom I had no possibility of negotiating a contract. The author passed away shortly after release of the first edition, before release of the second edition, fifty years before the new release. I knew who the publisher was from the title page information of the copy I worked from. That's where I started.

I found the author's personal papers in a library archive across the state from where he wrote and published the book. A veritable treasure trove of information was incorporated in that archive, noteably information for tracking down copyright ownership. The publisher owned the original copyrights. In subsequent research, I found that the copyright had lapsed under copyright law governing at the time of publication and the time of the lapse. I found the sole living relative of the author, who at the time of first publication was a US serviceman on duty abroad, the charity to whom the author bequeathed royalty proceeds from sales of his books, and information related to the original illustrator.

Although, as it turned out, technically unnecessary, approval for our rerelease of the book was granted without condition by the relative, the charity, the original publisher, and the estate of the illustrator, before it went to print. After exhaustive research of Copyright Office records, a formal records search by the Copyright Office, I concluded and confirmed as much as humanly possible that the book was, indeed, in the public domain, open and freely available to anyone who wished to republish it. We got there first. In our sometimes personal, sometimes adoring and sensitive relationships to the author and illustrator, the people and places of the title, we returned a favored and award-winning classic to the public eye for posterity's sake.

My biggest reward was the satisfaction of doing a good job. No pay, a couple of free copies, a publishing certificate, vocational equivalent to a college minor degree, a few kudos from college peers and professors and booksellers. And my name on the cover and inside of the books.
Existing copyright law in my opinion is an extraordinary balance of commercial, author, and common good interests, favoring the public foremost. The days of old when an author engaged a printer to publish his or her work and then saw it treated as a free-for-all property are thankfully long gone.

Competing printers, sometimes right next door, "literary" agents of other printers abroad, and the like were often first in line at new releases of highly anticipated novels. Serially published novels that were finally brought out in book form didn't even draw lines of "agents." They were copied from whatever digest, magazine, or newspaper originally published them.

A book released by a contracted printer often saw a row of print shops selling unauthorized copies within a few days of the original release. Publication abroad, within a few weeks, however long it took to ship a copy abroad, plus a few days to hastily set the type, print, and bind the books. The author was only paid by the contracted printer. Several hundred thousand copies could have sold across the land and seas and the author only receive royalties on a few thousand. To say that the follow-on copies were shoddy workmanship in product and editorial attention, well, the anecdotes are not funny.
So yes, I am careful, dilligent, and conscientious. If I were a less than dilligent editor/publisher, I could be a worthwhile target for infringement litigation, at least for purposes of injunction, if not monetary penalties that I can ill afford to pay.

[This message has been edited by extrinsic (edited September 05, 2009).]

Posted by Spaceman (Member # 9240) on :
Existing copyright law in my opinion is an extraordinary balance of commercial, author, and common good interests,

It's really a shame it doesn't apply to Google.

Posted by extrinsic (Member # 8019) on :
The Google fiasco is a complex situation, copyright law does and doesn't apply. But interpretations of the law are in flux due to the emerging precedents of digital publication. The Public Interest has a powerful influence in copyright law, mostly because of the Copyright Clause in the US Constitution.

Posted by Robert Nowall (Member # 2764) on :
Breaking copyright law down to the basics, I'd work with the assumption that, if the writer is still alive, the work is still in copyright.


Meanwhile...a book I read a week or so ago made the rather bold statement that every record issued before 1958 was in public domain. I don't know whether the writer meant "record" or "recording"...and I don't know whether this applies to the world or just the European Union (the writer was British and the book originated there).

Posted by aspirit (Member # 7974) on :
That's just for the EU. I think it's every sound recording reverts to public domain 50 years (or 95 years, if a recent proposal passed) from creation. American copyright right law is more complicated.

The U.S. Copyright Office:

Posted by ChrisOwens (Member # 1955) on :
Hmm--this is all food for thought.

Let me give a hypothetical example to see if it would constitute infringement. I am entirely making this up so as not to accidently tread on forbidden ground.

Say, C.S. Lewis had said in a letter to a friend, "Some people think outside the box. Some people are the box." And in this scenario, the letter eventually was published in a compilation volume of his letters. So I decide to write a far future story where C.S. Lewis's letter is discovered and considered Scripture. And in the story, I have a blurb attributed thusly:

"Some people think outside the box. Some people are the box."--The Gospel According to C.S. Lewis.

What are the legal/ethical ramifications?

Posted by extrinsic (Member # 8019) on :
There's two areas of concern in the hypothetical, attributing an excerpt from a fictitious letter to C.S. Lewis. One factor is it's a False Document, a fictitious letter, which is a common and accepted literary device, and which strikes me as a fair use. The other area is that it's falsely attributed to a well-known and widely-respected though deceased author who has a strong following of devoted fans.

If fictitious, I don't believe then there's a rights infringement unless the letter isn't purely fictitious, because C.S. Lewis' letters have only recently been published and are, in fact, currently under copyright. Letters because of their private nature though automatically copyrighted might or might not have an expired copyright. Publication, by definition, in a public venue is the point at which the copyright clock starts.

If purely fictitious, I do think there's a potential for injunctive litigation ostensibly purposed to prevent commercial interference with the published letters, especially if the story takes a negative position toward C.S. Lewis' beliefs and legacy, at least as perceived by his letters' copyright owners. There might not be a preponderance of legal merit in the latter, but pursuing litigation doesn't necessarily have to be based on merit. Sometimes just a threat of litigation will accomplish an intent.

[This message has been edited by extrinsic (edited September 08, 2009).]

Posted by ChrisOwens (Member # 1955) on :
Let us imagine, that the quote is not fictitious. I take it from this discussion that even if it is attributed to the right person, it is in violation?

Let's say one can google it, and find the quote on C.S. Lewis related websites that are not owned by the Lewis estate. Do they violate copyright? Does one have to get permission from the estate to quote a snippet?


Posted by extrinsic (Member # 8019) on :
Whether an unathorized writer publishing a factual utterance of C.S. Lewis' is a rights infringement is a legal issue ultimately settled by a trier of fact, as in a jury or a judge, or advised upon by a copyright lawyer. Before a trial comes to pass, though, there's a lot of legal wrangling that goes on, but essentially, who's right and who's wrong is not uncommonly that clearcut beforehand and not all too rarely appealed afterward. For example, a public utterance of one celebrity might be perceived as belonging to the public domain, where a public utterance by another celebrity wouldn't be, in a final analysis. Certain persons are so public that whatever they say or do publicly is fair game for anyone, especially politicians, but even they have some right to an expectation of privacy and copyrights in some areas.

Anyway, back to the central hypothetical, a writer is the party responsible for his work, but a publisher will also do due dilligence if they're interested enough. If the infringement question raised is answerable by strict adherence to the letter of the copyright law, maybe they'll pass on an unknown writer, but jump into the deep end with a famous author. Again, infringement is uncommonly so clearcut as to be black and white.

Suppose, though, that a factual quotation or fictional quotation of a factual person is paramount to a story's meaning. Is authorization necessary? In my opinion, in all but the most obvious cases of public domain property, yes, permission is as much a necessity as attribution. I believe it's better to ask permission, no matter how inconvenient, than to suffer the indignity and inconvenience of begging forgiveness and paying the consequences.

Whether unauthorized content on a Web site might be constituted as a fair use, I can't say in all cases, but would seek permission regardless or not incorporate questionably infringing content. Wlikpedia topic Fair Use offers some insight into what's acceptable and what's not, notably that fair use generally applies to scholarship or review.

The four pronged test of fair use sieves out a lot of infringing uses that go on on the Internet regardless of the law.

"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." Wikipedia: Fair Use, Under United States Law.

[This message has been edited by extrinsic (edited September 08, 2009).]

Posted by ChrisOwens (Member # 1955) on :
Hmm--I've been trying to google this, but I find Law deviod of imagination and compelling writing, making it very dry reading...

One page on writing fiction recommends paraphrasing, without using the exact wording--is this accurate? For instance, in the above hypothetical, suppose our imaginary story started with this paraphrase:

"Some think outside the box, some are the box."--C.S. Lewis.

Of course, the example they used was paraphrasing movie dialog within a character's dialog, like so: Bob the Spaceman quipped, "It's just as Charlton Beston said in Planet of the Capes, 'Some are the box'".

Posted by extrinsic (Member # 8019) on :
The question shifted from whether or not to quote a factual person, factually or fictitiously, to how to do it.

First, a gray area of copyright law known as Moral Rights protects a writer's work from defamation, unfair competition, misattribution, or slander, libel, distortion, mutilation, or derogatory action "that would be prejudicial to a writer's honor or reputation." Wikipedia: Moral rights (copyright law).

Moral rights generally protect a literary work from alteration, but misattribution, for example, falsely attributing an utterance to a real person, as well as other moral rights infringements, comes up more specifically in other areas of the law in the U.S.

How to present a factual or fictitious quotation or paraphrase is a style matter. Generally, APA, MLA, and Chicago style manuals agree on the methods. In prose, an informal style is generally acceptable as long as accurately represented.

Me, I'd avoid all the hassle altogether and create a fictious character, loosely based on a factual person, to make the statement. That way the creation is mine, is unfettered, and is open to interpretation, as in close enough to a factual person that an intended audience will get it, yet readers who don't get it will not miss out on anything.

Note that a quote used in a heading is typically italized and quote marks are omitted.

Some think outside the box; some are the box. --G.F. Louis

Style rules for paraphrase, direct quotation, paraphrase or quotation used in indirect discourse, and so on, start to become pretty complex, but the Bob the Spaceman example is in an acceptable format.

[This message has been edited by extrinsic (edited September 08, 2009).]

Posted by debhoag (Member # 5493) on :
how about quoting lines from a song?
Posted by extrinsic (Member # 8019) on :
My guiding principle is poetry, prose, or song lyrics not in the public domain require authorization from copyright owners for use in other publications, excepting some scholarship and most review purposes, what's known as secondary discourse.
Posted by Kathleen Dalton Woodbury (Member # 59) on :
The recording industry is very barracuda-like regarding quotes of song lyrics that have been recorded--even if the songwriter would be willing to be quoted. I believe even Stephen King can't quote song lyrics without paying megabucks for the privilege.

If the song isn't under the recording industry's "jurisdiction," then the songwriter may have control over the lyrics and quoting may then be negotiable.

Posted by extrinsic (Member # 8019) on :
There's an entire clearinghouse industry surrounding use rights licensing for music, poetry, prose, and reference resources. "Copy shop" clearinghouses generally license use to copy excerpts from college textbooks and other sources for course packs that help keep textbook costs down. ASCAP, for example, is a bulk-licensing lyrics clearinghouse, which collected nearly a billion dollars in licensing fees in 2008, and paid almost 90 percent in distributed royalties to members. BMI and SESAC are two more lyrics clearinghouse organizations in the U.S.

[This message has been edited by extrinsic (edited September 09, 2009).]

Posted by rich (Member # 8140) on :
The recording industry is very barracuda-like regarding quotes of song lyrics that have been recorded--even if the songwriter would be willing to be quoted. I believe even Stephen King can't quote song lyrics without paying megabucks for the privilege.

Which is why WKRP in Cincinnati on DVD really, really, really sucks.

A by the way: On The Simpsons commentaries, you hear the writers complaining all the time about wanting to use a snippet of music or lyric, but unable to because of the cost. The music industry literally charges by the second.

Posted by Robert Nowall (Member # 2764) on :
Which is why WKRP in Cincinnati on DVD really, really, really sucks.

True dat.

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