NOTE: This article intends to describe plagiarism and discuss the issues faced by authors and publishers with respect to permissions. THIS IS NOT LEGAL ADVICE AND SHOULD NOT BE CONSTRUED AS SUCH. FOR LEGAL ADVICE SEEK THE COUNSEL OF A REPUTABLE INTELLECTUAL PROPERTY ATTORNEY IN GOOD STANDING WITH THE BAR IN THE STATE WHERE THE ATTORNEY PRACTICES.
- A January 19, 2019 headline read, “Fortnite makers sued for ‘stealing floss dance’ from Backpack Kid.”1
- In 2008, Shephard Fairey created the famous Hope poster, which became the iconic symbol of the Obama campaign. However, the poster was based on a photo taken by an AP freelance photographer.2
- Music heavyweight Spotify even got into hot water in 2018 for copyright infringement.3
- What does Laura Harner have to do with either Becky McGraw or Opal Carew? Harner plagiarized books published by McGraw and Carew.4
Whether it be creative movement (e.g., dance moves), visual art (e.g., photos, posters), music, lyrics, or books (including fiction and nonfiction), any copyrighted material is subject to misappropriation. Plagiarism is literary theft where someone steals the ideas, words, storyline, etc., of someone else and tries to pass them off as hers or his. It is a form of copyright infringement, be it intentional or not, and should be on the mind of authors as they write and publishers as they publish books. Plagiarizing the work of another author comes with the liability of being sued. Therefore, authors are wise to be very cautious about using other people’s words, ideas, and creative output, including visual artwork or graphic material. Publishers certainly need to pay attention to being on both sides of the plagiarism fence. Because, they can be the ones committing plagiarism or the ones being harmed by someone plagiarizing the books they publish.
With the specter of infringing someone’s copyrights, authors and publishers are faced with permission issues. Nonfiction books are particularly susceptible, since they are predicated on the notion that they describe real life or actual events. The burden falls to the author to be able to prove what is said in the book. Some books may rely solely on proof created or owned by the author, in which case the author owns the rights and doesn’t need to seek permission elsewhere. But most authors of nonfiction rely on and intentionally interact with the work of others. Whenever an author uses ideas and information created or owned by someone else, she or he must give credit to the source. Those attributions raise the question of fair use, inasmuch as they draw attention to the author’s dependence on that other source. As Angela Hoy, publisher of WritersWeekly.com, reminds us:
- Admitting up front in your book that you’re using other people’s material without permission does NOT make it legal.
- Using content with a disclaimer that says you don’t know who the copyright owner is also does NOT make it legal.
- Inserting a comment in your book that asks the copyright holders to contact you does NOT make it legal.
None of these protects you from a copyright infringement lawsuit!5
This is where authors and publishers must be diligent in protecting themselves from lawsuits. Radius Book Group calls on its legal counsel Alan J. Kaufman, Esq. (www.kaufmanpublaw.com) to review manuscripts for permissions and other legal issues and we engage other firms to seek permissions when we’ve identified the need to secure permission in a manuscript.
An author can quote sources without obtaining permission from the copyright holder, as long as she or he provides attribution. So when is it okay to quote a source without obtaining permission and when must the author get the copyright holder’s permission? A central question that authors and publishers ask, related to permissions, is, “Does this fall within fair use?”
Anyone can download an official copy of the laws of the United States pertaining to copyright directly from the U.S. Copyright Office (https://www.copyright.gov/title17/). Section 107 of that document defines “Fair Use” and the guidelines for determining whether or not a given case qualifies. The problem is that the four factors one must consider are subject to interpretation; and that’s where authors and publishers can find themselves skating on thin ice. The rule to follow with fair use is, “Better safe than sorry.” Don’t presume it’s okay to quote extensively from a source. Rather, presume it isn’t okay and seek permission before publishing the book. You may be pleasantly surprised to discover you don’t need permission, or that the copyright holder happily grants permission at no cost. Or you may find you do in fact need permission and the copyright holder wants you to pay a fee to license that particular content for use in your book. Isn’t it better to pay a little up front than to pay a lot down the road in court fees, attorney fees, and an award of damages that may come with a lawsuit?
It is one thing to have a better grasp of plagiarism and permissions, it is another thing to deal with the practicality of wading through the permissions process. Here are five practical considerations to keep in mind when you screw up the courage to jump into permissions:
- Write with permissions in mind: You can avoid plagiarism and the headaches of seeking permission by keeping fair use and copyright infringement in mind as you write. That means judiciously documenting the sources you use and limiting how much you quote from any given source.
- Edit with permissions in mind: In the editing phase, you can make a citation within your manuscript fall under fair use by simply cutting a sentence or certain number of words. Don’t get so attached to a quote (i.e., “this absolutely has to be in the book”) that you are unwilling to edit it down. If a quote is that necessary, then you should be willing to obtain and pay for permission to use it. You’d certainly expect someone else who uses your words to do the same.
- Get legal advice from a qualified attorney: Attorneys are not omniscient or infallible. Nor do they come cheap. But one who specializes in intellectual property law is worth every penny, because her or his advice can help you avoid a pile of trouble. She or he knows the ins-and-outs of the law, is aware of and can research court cases and judgments pertaining to copyright, and can render binding legal opinions.
- Allow plenty of time to pursue permissions: Even though lots of authors and publishers are constantly seeking permission from copyright holders, those copyright holders have no obligation to respond to a request to grant permission. They can take their sweet old time. When you have a firm publication date for your book, that can put you in a bind. As early in the process as possible, seek and secure all the permissions your manuscript requires. Ideally, that means you have all the permissions in hand when you submit your manuscript to the publisher, before copyediting or any other production steps start.
- Set aside time to police your own copyrighted works from infringement: You have to look after your own interests when it comes to copyright infringement. Ignoring it won’t help. You can pay someone else to monitor the marketplace for plagiarism and infringement. In this age of networking and social media, get your network to help by keeping their eyes open for mentions and quotes of your work. Or you can monitor the Internet and journal articles and books on your own. Going back to the definition of plagiarism, your copyright is a valuable asset and it is important to protect your assets, because it can have a substantial price tag attached.
One additional resource I will refer you to is respected consultant Jane Friedman’s post on this topic from 2017.6 Her article is grade A among the avalanche of tips for the important issue of plagiarism and permissions.
1. Elizabeth A. Harris, “Fortnite makers sued for ‘stealing floss dance’ from Backpack Kid.” The Independent (Saturday 19 January 2019). https://www.independent.co.uk/news/world/americas/fortnite-floss-dance-epic-games-carlton-backpack-kid-russell-horning-lawsuit-a8736061.html
2. See Wikipedia page, “Barack Obama ‘Hope’ poster.” https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster
3. Lesley Messer, “Spotify hit with $1.6 billion copyright infringement lawsuit.” ABC News, Jan. 3, 2018, https://abcnews.go.com/beta-story-container/Entertainment/spotify-hit-16-billion-copyright-infringement-lawsuit/story?id=52104636
4. See reporting on Harner’s plagiarism in The Guardian, https://www.theguardian.com/books/2015/oct/28/prolific-romantic-fiction-writer-exposed-as-a-plagiarist, and on Jenny Trout’s blog, “Another book plagiarized by Laura Harner,” October 23, 2015, http://jennytrout.com/?p=9693.
5. Angela Hoy, “Can Your Publisher Get YOU Sued For Copyright Infringement? Yep!!” Angela’s Desk, September 17, 2014, https://writersweekly.com/angela-desk/can-your-publisher-get-you-sued-for-copyright-infringement-yep-by-angela-hoy-booklocker-com-writersweekly-com-abuzz-press-and-pubpreppers-com.
6. Jane Friedman, “A Writer’s Guide to Permissions and Fair Use,” June 21, 2017, https://www.janefriedman.com/permissions-and-fair-use/.