Is It Fair? Or, How Not to Pull a Melania

Perhaps I’m in a nostalgic mood given that Girl Friday just turned ten years old, or maybe it was the plagiarism that cropped up in a client’s book the other day, but I found myself thinking back to 1999 when Seal Press was sued by the Mattel Corporation over alleged trademark infringement. You can read the New York Times story, but the long and short of it is that Adiós, Barbie, a book of first-person essays that speak to the rather limiting beauty standard out there in the collective consciousness, earned the attention of the toy company, which then sued not over the title but over the cover, which featured images such as a likeness of Barbie’s Jimmy Choos–ready foot as well as a font color they deemed “Barbie™ pink.” Fair use? Since it didn’t go to court, I guess that one is a mystery for the ages.* But here, issues of fair use, using another’s work without infringing on copyright, continue to crop up. In our experience at GFP, the complicating factor for many individual writers (less of an issue in ’99) is that darn Internet. It makes information so tantalizingly available as to misdirect, offering up others’ poems, books, songs, and speeches at no cost in a matter of seconds. Surely I can just record this bit into my own poem, book, song, or speech since it’s already out there for everyone to enjoy? Surely not, my friend.

Our industry colleague Jane Friedman goes over more of the finer points of fair use in her blog than I will in this post, and it’s a far more enjoyable read than copyright.gov’s treatise. But for true neophytes, here is a quick-and-dirty primer for the types of fair use violations we see most often.

Lyrics: Novelists so very much want to use song lyrics in their books. I get it. You want to contribute to the mood of the book by providing your own “soundtrack.” Or perhaps you need a lyric to prompt a character to remember a dead sister or to solve a crime or to break down in a sobbing heap thinking through an old love affair. My question to you is this: Do you? Is it enough for a character to be humming a country-western song or is it imperative that the italicized lines of “On the Road Again” appear in running text? If it is imperative, be prepared to contact ASCAP or BMI and get permission.

The words of famous people: They said it, didn’t they? Well, unless you were there, it may not be that simple, especially if the famous figure is not from the United States (other countries have different standards around fair use and the words of famous figures). If you decide to use the quoted material, please check and then double-check your sources and make sure they are accurate and reputable.

Poetry: The Mahabharata aside, the issue with most poetry is that it’s so dang short. You see, part of the evaluation for fair use is how much of the whole work you excerpted. One line from Dickens, you’re probably fine; one line from Dickinson on the other hand . . .

Just plain old plagiarism: Though there are some folks out there stealing words and phrases (or whole pages) and just hoping they don’t get caught, others inadvertently incorporate excerpted language they thought was their own brilliance. Still others really don’t know you can’t just cut and paste whatever you may come across on the Web. What will save you and your reputation? Meticulous documentation of your research and sources, professional proofreading and fact-checking, and crediting the source as a default.

Caveat: I’m not a lawyer, though there are excellent ones who specialize in just this topic. If you are ever in doubt as to whether you have the right to use someone else's words, cut the material or seek the help of a professional. In addition to attorneys, some membership organizations, such as the Authors Guild, not only provide legal advice to members but advocate on behalf of all authors with regard to the protection of intellectual property.

*Dying to know what happened with Mattel? Well, the ACLU offered to take the case since they (and we!) believed the use was protected as satire/criticism of Barbie as a cultural icon. Even so, the whole hullabaloo was too much for the indie press, and we ended up changing the cover as well as the name of the book.