Last Word on Copyright & Plagiarism: Yours!

Last night I went to bed with the decision that I was going to take a break from this copyright/plagiarism topic and do "something else" today. (Something else = long list of topics that kept changing).

Yeah, notsomuch.

I do have a great list of links about the topic that people have been sending me in email and Twitter, but More Importantly, I got this information in my inbox today (courtesy of the fine discussion list for Broad Universe!) (And especially Brenna Lyons and Elaine Isaak):

Dear Copyright Advocates,The Obama Administration is asking to hear from YOU, the creative backbone of our country, about how intellectual property infringement affects YOUR livelihood. The Administration is also seeking advice on what the government could be doing to better protect the rights of artists and creators in our country. HERE'S A CHANCE FOR YOU TO BE HEARD!
BACKGROUND:Last year President Obama appointed and the U.S. Senate confirmed Victoria Espinel to be the first U.S. Intellectual Property Enforcement Coordinator. Her job is "to help protect the creativity of the American public" by coordinating with all the federal agencies that fight the infringement of intellectual property, which includes creating and selling counterfeit goods; pirating video games, music, and books; and infringing upon the many other creative works that are produced by artists in this country.As you know, the unauthorized copying, sale, and distribution of artists' intellectual property directly impact the ability of artists and creators to control the use of their own creativity, not to mention their ability to receive income they have earned from their labor. This impacts U.S. employment and the economy, and our ability to globally compete.As required by an Act of Congress (The PRO-IP Act of 2008), Ms. Espinel and her White House team are preparing a Joint Strategic Plan that will include YOUR FEEDBACK on the costs and risks that intellectual property infringement has on the American public.Here's how to make yourself heard!
1. Send an email to Ms. Espinel and the Obama Administration:intellectualproperty@omb.eop.gov and copy the Copyright Alliance on youremail: info@copyrightalliance.org
2. Begin your letter with "The Copyright Alliance has informed me of this welcome invitation from the Obama Administration to share my thoughts on my rights as a creator."
3. Include in your email: your story, why intellectual property rights are important to you, how piracy and infringement affect you, and what the U.S. government can do to better protect the rights of creative Americans.
4. Also include in your email: your name, city, state, and what type of artist you are.
5. DO NOT include any personal or private information as all comments will be posted publically on the White House website.
All comments must be submitted by Wednesday, March 24 by 5:00 p.m. EST. To read the entire call for comments, click here.
Don't be shy! Take two minutes today to make your voice heard, and don't forget to spread the word to everyone you know. Forward this notice using this short URL - http://bit.ly/cjDZJt - by email, MySpace, Facebook, Twitter, and more!Best,
Lucinda Dugger
P.S. If you received this email from a friend, and you are interested in receiving more information about how you can speak up for your rights, sign up for our network of Copyright Advocates.

Now, I've had a few posts on copyright/plagiarism regarding a number of art forms starting about a month ago. My simplified stance on the topic is a more middle ground than most of what I've seen. More specifically, my stance is as an educator and suggests that people make their own decision based on research.

Regarding the abovementioned Espinel, I found this article at Wired.com.

And more here on Compliance Matters.

One of my favorite writerly resources, Writer Beware!, had this post on recent copyright activities.

Another photography friend sent me this post on plagiarism and art from another photographer blogger. (It also has some gorgeous pictures!)

From Twitter came "What every writer ought to know about fair use and copyright" from www.thebookdesigner.com and how publishers are being urged to change their focus regarding copyright.

And lastly, from my educational colleague, Julie, came this article about plagiarism in higher ed and even job interviews, which made me very sad.

Do you have any articles on plagiarism and copyright that you would like to share? There's an AWFUL LOT out there and it's important for anyone creating and writing to know the story.

And now to be a part of the decisions made regarding copyright, per the letter above.

Go forth and change the world!

Plagiarism 4: The Art of Copyright

I started several weeks ago discussing copyright and plagiarism in response to the accusations of plagiarism against Helene Hegemann in her (still best-selling) novel Axolotl Roadkill. In seeing if there were any new articles about her, specifically, I see there hasn't been much of anything since the story broke, but I did see this particular article that interviews the person whose text she used/stole for her novel.

In one of those weird twists of fate or coincidence, the argument comes of very similar to the Molotov Man debate I was planning on investigating today, anyway.

In 2003, artist Joy Garnett did a series of paintings to capture her feelings about the Gulf War. One of those paintings was a piece of a larger photograph taken by photojournalist, Susan Meiselas, about human rights issues and political storms in Latin America. These paintings were representations of pieces of photographs Garnett had found on the Internet. She was invited to showcase this series in 2004, and she and the art director decided to have the opening and main piece be "Molotov Man," the painting that borrowed from Meiselas' photo. While I suggest you read the whole article and the follow up to it, the crux of the debate was that Meiselas' wanted credit for the original image and had threatened to sue for copyright infringement. The suit never went through, but Garnett did end up ensuring that credit was given whenever she used or promoted the image - but she would not take responsibility for other artists who she allowed to appropriate and reinterpret her version. Garnett argues that artists have the right to reinterpret and reinvent to promote cultural growth (much as my friend, Dan, stated in his guest post.) Meiselas states that Garnett's use of the image decontextualizes it and undermines what she is trying to do in documenting the historical event.

Fast forward to February and the Hegemann/Airen plagiarism and controversy. In this article from Speigel Online, the blogger and writer, Airen, is not quoted in asking for money or anything; he states that he wrote from personal experience, documenting the actual use and destruction of drugs… Hegemann is decontextualizing the actual experience in her using his words… cheapening the experience. While newer editions of Axolotl Roadkill do now credit Airen in the acknowledgements, it's interesting to see the similarities.

Turning the mirror back over, when I originally mentioned my first plagiarism blog post to my artist friends and explained how Hegemann used the piece of Airen's Strobo, they didn't see how it was such a big deal of plagiarism. My friend and colleague, Renée, who has been a photographer with me on several assignments and for similar publications, said, "I honestly don't feel Joy was committing copyright infrigment with her paintings […] I would not as a photographer be offended by Joy's work of art." She also points out that Meiselas saw the image used all over the place besides the painting - and not related to the painting - yet she did not sue or try to collect licensing fees from all the other imitators.

Another friend and colleague, Stef, who has her visual art displayed in the new store Renée and her fiancé, Sean, have opened, and has worked with museum art and stores for years, gave an even more in-depth analysis of the Molotov Man debate with her husband, Dave (who you may have seen responding to various Facebook posts of this blog).

First, they look at the guidelines and laws for publishing photos. What Meiselas is doing is protected under First Amendment rights for photos without consent. (Meiselas states she didn't even know the photo/painting subject's name until 11 years after she took the picture, and it was part of a series of people amidst public events.) In light of that, Stef and Dave make the following points (quoted directly from email):

* All the reproductions of the photograph we see when reading Susan’s argument more closely resemble her original photograph than does Joy’s painting.

* Susan’s contention that she felt she had to speak out against (and now she uses his name) “Pablo Arauz’s context being stripped away…” fails to take note of the simple fact that, had she kept silent on the matter, Joy’s painting would have remained an anonymous “Molotov Man.”

* Pablo was not even the subject of a photo journal. He happened to be in the center of one of Susan’s photographs while she documented the struggle in Nicaragua. Had she followed him as a focus of her photo series, and had Joy then knowingly used such photos as the basis for her paintings, then not only would Susan have grounds for a lawsuit, but so would Pablo.

* Susan documented a moment in history, a news story. “This is what happened.” Joy’s exhibition is about extremes in emotion. “How does this make you feel?”

In looking at those points, let's look at Hegemann's use of a piece of Airen's novel. The two are communicating different points in different styles. Airen is documenting actual events with the purpose of teaching people from the experience; Hegemann is exploring and searching for ways to rebel in a world where there is nothing original and everything is borrowed from something else. In fact, the very piece she lifted is self-referential in its usage.. down to the character stating his words were taken from a blogger. (Airen is a blogger.)

If writing is an arm in the branch of the Tree of Art (like music, sculpture, painting, etc.), what is the difference between the Molotov Man debate and the Hegemann "scandal"? While Garnett does now credit Meisalas when she uses her version of Molotov Man, and while current and future editions of Axolotl Roadkill credit Airen, there is no money exchanged. Are things all soothed out now? Or do writers still hold Hegemann in contempt? What about artists?

Many, many artists rose to defend and champion Garnett during the suit. On the other hand, you'll find most writers rose to condemn and insult Hegemann. What creates these different mindsets of copyright and creation?

Plagiarism 3: The Webz are Alive with the Sound of… Copyright? Plagiarism? (Part B)

As I mentioned on Wednesday, a lot of the discussions regarding plagiarism and copyright, writers have brought in the concept of music. Specifically, sampling and "mixing" (as alleged plagiarist and young German author Helene Hegemann termed it… which started me on this line of posts).

The problem, of course, and most logicians would note: Writing and music are two different media.

I spoke with two musician friends of mine and Wednesday was an excellent guest blog by esteemed filker and author, Roberta Rogow. Today I have the honor of introducing you to another good friend of mine, Dan Kupka. Dan both composes music and is a DJ. While he doesn’t have anything to sell now, those who are close enough can see him in concert on April 17 at Gulu Gulu Café in Salem, MA.

So, without further ado, here is Dan's guest blog (with minor proofing/editing/linking):

Well, as is so often said... 'my thoughts and opinions are solely my own, and I make no respresentation of others' as my own or my own as others' blah blah blah...'

When DJs mix for a club or similar venue, to my understanding, the club/bar/establishment catering to that sort of thing already is, or should be, responsible for paying a nominal fee based upon that set with an organization such as ASCAP [The American Society for Composers, Authors, and Publishers]; ASCAP is one of the companies involved in covering royalties distribution to artists who might have been, er, covered by another band or played by a DJ on a CD or other media, under what's known as a "public performance." This probably includes things like the well-known Mario theme - you've heard it, even if you don't know what it's called. (I'll write about this last one - or 8-bit music in general - in a bit.)

As a musician myself, generally I compose - and I use that verb loosely - music on a laptop that has special applications running on it that assist with electronic music production, one specifically being Reason. (I'd like to thank Chris, former keyboards player for the Cruxshadows, for steering me that way!) All vocal samples I use (or might use) that aren't from Reason thus far come from one or two royalty-free sample CDs that I had purchased from a store. The license allows use for commercial or non-commercial use, so long as credit is given, I believe, to the original medium from whence it came. There are those musicians or DJs who try, or succeed with respect to skirting the legal waters, by not clearing samples that might have been recorded for use in their work simply because cost may be prohibitive to license the sample(s) for that use. Unfortunately, I don't have the foggiest idea of where that starts, as, again, I haven't dipped into that area myself. When I do, of course, I'll let you know. :)

There is a relatively recent trend toward licensing works under the Creative Commons license. In a prior discussion relating to a note you had posted on Facebook regarding copyright, I touched upon the idea that 1. copyright initially was designed to allow a temporary monopoly of rights ownership with the original creator - or, ultimately, whoever became the rights-holder - to receive, and I will reiterate this, TEMPORARY compensation for said work, after which time the work would enter the public domain; the knowledge of this temporary nature would spur the artist or musician to continue creating works that would, hopefully, benefit the public with respect to art, science, and knowledge in general (or, as I'd prefer to term it generally, culture). Copyright, as it stands now, has a shelf life of 75 years plus the life of the author. I think a Twinkie still lasts longer, but in any case, the idea that I have to wait effectively two generations before I am allowed to do anything I see fit to a work that I find interesting and put my own spin on it is, frankly, rather absurd. This is where I say that copyright, as it is currently, impedes what would be the natural spread of culture, or its tendency to reach out geographically, broaden minds. I will, however, stop short of making a completely political statement, with ramblings about corporate this, and social that... I'll leave that for another rant entirely.

So, on to Creative Commons itself, briefly. In a nutshell, this license allows those who wish to share their work to do so freely, and even would allow it to flourish in someone else's hands in different media or different styles in the same medium, with less inherent restriction than what would be provided under typical copyright terms - which some might find much more draconian, given the current state of copyright (read about the Digital Millennium Copyright Act for insight into the tip of the iceberg about "draconian" [from Trish: and also here for authors]). I don't have much else to say here, as I'm not familiar with legalities and liabilities as it pertains to using commercial vs. noncommercial works, what's constituted as derivative or adapted - and that I'll leave to the music law professionals to determine...

Back to Mario and at least some things Nintendo. There has been a growing interest for some time overseas in what is known as 8-bit music. I haven't been involved directly in the scene myself, though I have seen some local artists who have made use of various Gameboy and NES consoles, with various hacks and modifications to turn them into (what else?) music-making machines. This music, as the name of the genre would imply, uses the hardware from the aforementioned consoles to produce the old-school-ish video-gamey sounds from the 80s, but applies those sounds in sometimes very new and interesting ways. To rattle off a few bands that I've seen and enjoyed, in no particular order: Br1ght Pr1mate, Active Knowledge, Bubblegum Octopus... Conceptually, I liken the idea to going to your favorite music equipment store and buying an instrument. That's really all it is, and it's not the size of it, what you do with it is what counts! (The prior sentence could be applied to any number of activities that are outside the scope of this discussion. I'll leave those to your imagination.)

I'm not entirely certain as to what [Trish is] asking about when [she asked me] "what's the line for sampling in music?" If you mean the quantity of, say, the Mario theme or another familiar tune that may still be under copyright which is used in a piece of music by another musician, then that is a bit murky, as I don't think there is a set percentage or time-count cutoff after which the lawyers are called in to have a meeting. Needless to say, however, based on my aforementioned distaste with the current copyright scenario, I do think it is far past time for an overhaul to get back to the basics as to what life and culture is all about. Everyone is a part of this culture, so why should only a select few be in control of its dispensation even after several generations?

xx

[From a follow-up email from Dan]:

Quick little addition... while this is no substitute for a lawyer involved in music law, I did come upon some information that, generally, in the scenario of a live performance, sample clearance may not be needed as the venue owner pays license fees to ASCAP and/or BMI [Broadcast Music, Inc], and you're not making copies of the sample / music for distribution.

If, though, I were to press or copy CDs with that sample included on the CD, then the sample clearance is necessary. A lot of what determines what can be flown under the radar and unnecessary for clearance is pretty murky under even the best of circumstances (transforming a sound so it's barely recognizable to the original, burying it underneath the music so-to-speak, and so forth).

xx

So, writers looking to make comparisons of written plagiarism and musical plagiarism/sampling/mixing are hiking shaky ground - whether they are using it as an example promoting "sampling" or as an example where plagiarism has happened. Since it goes even beyond words, there are more facets to the music argument, too. However, the "murky depths" still show that copyright and plagiarism arguments are anything but clear cut.

Thank you very much, Dan, for your insights!

What are your thoughts on copyright law and the DMCA and how that applies to both music and writing? Are there things that you see need to be changed, readers? :)

Plagiarism 3: The Webz are Alive with the Sound of… Copyright? Plagiarism? (Part A)

In a lot of the discussions regarding plagiarism and copyright, writers have brought in the concept of music. Specifically, sampling and "mixing" (as alleged plagiarist and young German author Helene Hegemann termed it… which started me on this line of posts).

The problem, of course, and most logicians would note: Writing and music are two different media.

To see if I could help with some record setting in regards to comparing music sampling/mixing and written plagiarism, I chatted with a couple of friends of mine who are musicians, one of which is also a DJ. In fact, both are so eloquent and well versed, I will be borrowing liberally from them. (But not plagiarizing as I will use quotation marks and proper attributions… AND… please patronize these fabulous people if you see them online or catch them at a convention!) In short: this blog post will read more like a "guest blog."

(Edit to note: Because the two people I chatted with were kind enough to give me wonderful responses with more details than I could conceive of, myself, I'm giving each her/his own post… Today we will chat with Roberta Rogow.)

One friend, Roberta Rogow, is a well-known and well-respected filker in the Northeast. Her credits, as she wrote them: "I've been writing, performing and recording Filk since 1976; I've written an article on Filk in The Encyclopedia of Women in Science Fiction and Fantasy; I have published filk lyrics in my own fanzine Rec-Room Rhymes since 1978. I've been running the Filk Track at Lunacon (the NYC area SF Convention) since 2003. And I'm going to be Filk Guest of Honor at I-Con in March 2010! I currently have two CDs available: Rogow, Alive and Filking and One Filk, Two Filk, Old Filk, New Filk, both recorded by Harold Stein's Floating Filk studio."

I also happen to know that Roberta has a great mystery book out as well and while she doesn't currently have a website, I will gladly link to the Amazon page for her book, THE GUILTY CLIENT.

What's filk and why do I bring it up? Well… if you didn't follow the link on "filker" above, basically filk is a type of folk music that draws from science fiction and fantasy literature, television, and movies - often borrowing or using tunes from classic folk, rock, country, and other music (including hip-hop, rap, metal… it's pretty varied). The name originates from a typo of "folk" in a convention that happened before I was born - though the matching of genre topics to folksy music and concerts has continued advancement under said typo. Most of filk falls under "parody" in regards to copyright laws, so there isn't the plagiarism stigma… but, filk musicians still have to navigate the rough waters of copyright law and proper attribution.

Now, I'll let Roberta speak for herself (with a few proofreading edits):

Filk started out as parody... taking a familiar tune and putting new words to it. There's nothing wrong with this; it's a got a long and honorable pedigree. After all, "The Star-Spangled Banner" poem was sung to the English drinking-song, "To Anacreaon in Heaven", and no one seemed to mind.

However... there's one big caveat: singing these songs in a more-or-less private gathering like a SF Con filk circle is one thing... publishing them, or recording them is quite another. As I have found out!

When I recorded my first audiotapes back in 1984, I paid royalties on the tunes I used through the Harry Fox Agency, which handles these things. Over time, the fees have grown, to the point where my CD Rogow Alive and Filking cost the producer more than $500 in copyright fees. And this is for a measly little 500-item deal!

The result is that filkers either write their own music or comb the archives for material that is in the Public Domain. And you'd be surprised what is not in the Public Domain, because it's not a "folk song" in the traditional sense. All of Woody Guthrie's output is under copyright; so is Sholem Secunda's (he wrote "Dona, Dona" and many other Yiddish classics) and "The Unicorn Song" (Shel Silverstein). Don't touch Bob Dylan or Paul Simon; Canadian Stan Rogers, a filk favorite, is similarly off-limits for recording. You can sing the parodies in the privacy of a Con or a house-filk, because that's not "public performance," but recording and distributing said recordings is definitely "public," and for that, the composer gets compensation. In some cases, the composer doesn't want anyone touching her work without her co-operation (which is why I can't record anything originally written by Dolly Parton).

If you use the tune written by another filker, that's within the boundaries of filk parody. There are so many parodies of "Banned From Argo" that they've been collected into a fanzine, "Bastard Sons of Argo." And the US Supreme Court has ruled that parody is legal, especially if done with comedic or satiric intent, as a commentary on the orginals, as done in Mad Magazine, or by Weird Al Yankovich, […].

Filk lyrics often riff off someone else's work. There are countless songs about the Star Trek and Star Wars characters; songs based on Tolkein's Lord of the Rings saga; songs that derive from all sorts of novels and movies and TV shows. This is considered acceptable, because you're not directly copying someone else's work, you're commenting on it in a way. And when you perform the material, you always cite the original source, if it isn't immediately obvious (as with my ballad "The Woman in the Snow", which I always attribute to a story written by Patricia McKissick).

There are one or two authors who are extremely leery of filkers or anyone else messing with their characters. There was a notorious case back in the late 1980's, where someone used a character in a well-known series in a fanzine story, and the original author not only sued, but won her case. Since I wrote a filk about said character, I have been very careful about recording that particular song. However, most authors are one with Harry Turtledove, who said "I'd be jazzed!" when I asked if he minded when other people were inspired to write something in response to one of his books. They look at filk as free advertising... if someone sings about their books in a filk circle, the listeners may want to go out and read them, just to find out what the song was about.

A general rule about parodies: you can get away with a lot if you're trying to be funny. But parody is not plagiarism, because there's a creative element to it. I may "borrow" a tune, but the lyrics are mine. Setting someone else's poem to an original tune is certainly not plagiarism, because the original poet is acknowledged. Plagiarism involves saying that someone else's work is your own, and filk is definitely not that.

So, in the case of filk, the response to Hegemann and her take on "plagiarism" is that she needed to credit her sources, still. On a CD, one can do that in the cover and in the blurb for the song; in concert, since most filkers perform pretty openly at conventions, I have heard them give credit where credit is due, also.

Rather than talking food on Friday, it will be my pleasure to include my friend Dan Kupka's response to this question! He goes into even more detail in regards to "mixing" as both a DJ and composer.

Until then, what do you think of using the medium of music as a comparison to writing in regards to copyright and plagiarism? While both are art forms, what makes the difference and how much leeway is there?

Food Copyright?

This plagiarism controversy continues to intrigue me, and as a member of the foodie community – who constantly share "secret" recipes and information, I'm curious how the concept of "plagiarism" may apply, and why there's so little ruckus when we print up cookbooks or share recipes and techniques on the Internet.

For example, I've mentioned Alton Brown on several occasions because I am a fan and want to see him do well. The academic writer in me wants to make sure I properly attribute what I've learned from him.

But what about the many cooks and cookbooks that don’t offer attribution? I own a number of cookbooks, and the chocolate chip cookie recipe I see, for example, in about three different cookbooks (EXCEPT Mr. Brown's I may add) is the exact same recipe on the back of the Original Nestlé Toll House ® chocolate chips: The Original Nestlé Toll House ® Chocolate Chip Cookie.

So, perhaps the other cookbooks don't specify that this recipe needs a specific brand of chocolate chip, and there is probably a dozen words that aren't EXACTLY the same in the entire recipe (of about 250 words), but if I saw a 250 word excerpt on a student paper that I recognized, with a brand name changed or erased, and 12 words changed, I would call them on plagiarism, no question. Do not pass Go, do not collect your passing grade (paraphrasing/alluding to Monopoly ® by Parker Brothers/Hasbro, in case you need the citation).

On the Internet, and directly between people, recipes and techniques are passed off with hardly a mention of whichever cook discovered, created, or wrote down the recipe or technique; most times it's not known. Don’t these cooks and chefs deserve the credit? Don’t they deserve the pay?

Should Nestlé (if they originated it) demand payment any time a cookbook or blogger shares a recipe so close it could have been plagiarized? Should they demand credit? Or, if Nestlé didn't originate it, if they took it from an earlier cookbook or cook, did they pay for rights of reproduction?

The Food Culture is a big money-maker right now, and restaurants and prepared food companies are losing money because their recipes and information are freely distributed.

Small, independent bakeries and cafes are losing their livelihood because recipes are free – or as cheap as a magazine – all over the place. On the other hand, the magazines and television shows and books are making money for selling these techniques (and related advertising) developed by pros.

There are plenty of people who will denounce plagiarism as a "crime" with absolutely no grey are; I wonder what they eat or cook. Knockoff brands? Restaurant recipes? Tollhouse Chocolate Chip Cookies? One of the biggest arguments I get from writers and creators, who would have the most to lose when their work is pirated and plagiarized, is that it's hard to earn money as a writer or creator; rent needs to be paid.

I don't have any numbers, admittedly, but I wonder how many independent cooks and bakers are thinking of rent when they hear someone can make the same thing at home… from a recipe they found on the Internet.

Just a thought. J Feel free to disagee.

Plagiarism 2: Take Back the Copy!

Last week's plagiarism post pulled in a lot of comments between Live Journal, Facebook, Blogger, and just plain email.

And quite the mixed reactions and colorful conversations!

There were two trends that stood out:

Outside of writing, there was much more of a "what's the big deal?" sentiment - particularly in visual arts and music. Based on how much discussion I've had in both those areas… be prepared for more upcoming topics! (Thank you Dan, Renée, Shannon, Roberta, and others!)

And then there were the anti-any-and-all-semblance-of-plagiarism folks. These people were either writers or in writing professions - and many were quite passionate about their thoughts. One friend likened someone being okay with their work being plagiarized to a woman who thought rape was okay because her husband did it. And she's not the only one to use that kind of metaphor; I've heard the term "raping children" come up more than once among published - many bestselling - authors in regards to fan fiction (fanfic).

And Fanfic is quite the topic!

For those of you unfamiliar with fanfic, it is when writers create stories (anywhere from flash length to novel-length to OMG-Wheel-of-Time-Series length) in existing worlds of fiction: be they movie, television, or a combination thereof. Think Star Wars, Star Trek, Harry Potter, Twilight… etc. It's a growing trend - especially in fan communities - and one that is very often caught in the crosshairs of plagiarism and copyright argument and lawsuit.

As a disclaimer: Any and all of my fanfic has never left my personal files (to my knowledge) or closed gaming groups, with the vast majority never leaving my head. Confession: It had little to do with plagiarism or copyright, for me. My reason is that time is precious and scant, so I better be working on original stuff I can potentially get paid for. The written stuff came from games I played between customer service calls (before I realized, "Oh! Why not write a novel?") and a few pieces of Harry Potter alternate realities that may have left someone scratching her head if they came up on a file backup at my old financial firm.

That said, I have many friends who write fanfic I thoroughly enjoy reading.

In researching fanfic for this article, I found this particular quote that seemed to address everything I've been playing with on this plagiarism topic:

The First Amendment protects free speech, but there is also a copyright clause in the Constitution. These two legal rights are often in conflict, and so the rights of fan fiction writers to write and speak freely and the rights of the copyright owner must be balanced. Each situation can be researched and individually evaluated, but it is important to understand there are no easy answers as to who has a right to the characters. Copyright law is designed to encourage authors to be creative by rewarding their efforts and protecting their work from others who might profit unfairly. This right must be balanced by society's need to have others not be limited by previously published protected works. There is not a clear "right" and "wrong" side in the battle between copyright owners and fan fiction writers.
(from Chilling Effects, http://www.chillingeffects.org/fanfic/faq.cgi? )

This point seems to fall in line with what I've been saying: plagiarism isn't a black and white issue. There is a lot of grey.

Most of the fanfiction writers I know adore the works they are playing in and will send anyone who asks (and even those that don't ask) to go out and buy the original works. And the DVDs. And the next sequels. And the not-in-the-same-universe-but-still-awesome other works by the creator(s). They are fans and evangelists that boost sales. Yes, they are writing with characters they did not create, but they aren't looking to make any profit from this hobby - they realize it's a "hobby," not a career - and they truly want to honor the creator who has inspired them and made their life a better place with her creations.

(Most. We'll get to at least one exception later.)

On the other hand, from the legal camp, the article Copyright 101 A Brief Introduction to Copyright for Fanfic Authors by A. T. Lee summarizes this:

Well, you can't derive your work from someone else's work or copyright her work without her permission. Therefore, technically, all fan fictions, which are derivative works (see, Sec. 4.1), are copyright violations. While many copyright holders turn a blind eye to such works (like our TPTB), they don't have to be so nice about it. In the end, it's completely up to the owner of the copyright to decide whether or not to enforce her rights, and prosecute the infringers. Whether or not she will be successful would depend on the availability of the fair use defense to the infringer. (See, Sec. 2.3).
Meanwhile, it often gets my "legal underwear in a wad" when I see disclaimers that say "infringement not intended". Strictly speaking, for fan fictions, there is infringement and the intention to infringe exists. I'm not sure what kind of disclaimer could exculpate that. You should, however, make it clear that you used the characters without permission, that you made no attempt to copyright those same characters, and that you're not using them for profit.

Sooo… technically, it's still illegal per U.S. law. (We won't go into other countries; Lee has links for those, too, though, if you're interested.) It IS pretty black and white.

But…

(Don't tell me you weren't expecting a "but"!)

But… it's not terribly enforceable. Yes, an author can find a fanfiction writer and sue the pants off of her. That takes a lot of effort in the Internet land of anonymity. And money. (There are only a handful of authors who can afford that.) And time. (Most authors prefer to be writing and can't pay a lawyer to spend all that necessary time.)

And even risk on the author's part. Take, for example, the well-known case where a fanfic writer sued Marion Zimmer Bradley for stealing a plot point from a fanfic piece, with the end result of Bradley not publishing her book. Additionally, in that link, Bradley discusses other potential risks to the author. There are over-zealous parents concerned about their darlings… (wait, I haven't written that blog post yet. It will come). Bradley cites a letter where someone asked about bestiality in her books - many targeted to YA audiences. Yeah… that was a fanfic someone posted. While I haven't heard of a case, could authors get sued for fanfic created in their world that includes inappropriate scenes for children? (And may God help J.K. Rowling if such a thing does come to pass! The Harry Potter slash fics I've seen (despite her request otherwise)…)


What is it that makes writing such a hotbed for plagiarism arguments and lawsuits?
Plagiarism in writing… why do you think it's such a hot topic? Is it more of a hot-button here than in any other art form? Why or why not? Is there something I'm missing?

And lastly, for you who write fiction, would you feel your work had been "raped" if someone wrote fanfiction about your world and characters?

*Other great links & resources I used in research, but didn't link to or quote directly:

http://dearauthor.com/wordpress/2006/12/18/wherein-jane-offends-authors-against-fan-fiction/

http://swiftywriting.blogspot.com/2005/11/in-defense-of-fanfiction-guestblogger.html

http://reason.com/archives/2007/01/30/the-fan-fiction-phenomena

http://www.trickster.org/symposium/symp189.htm

http://www.fanfiction.net/~fairywings81

Plagiarism: Not quite so black and white

The Broad Universe discussion list, along with a portion of the blogosphere, has been hopping about Helene Hegemann and her best-selling award-nominated novel… who has been accused of plagiarism. More information about this case can be found here, here, and here.

The debate, as well as one I also had with my friend, Sunder, and the ensuing research lends itself to the argument that "plagiarism" is not the black and white issue so many of us have been taught - and what many of us writers and educators will argue to death with every cell in our body. While there are a lot of problems with what we typically call "plagiarism," there are several cultural benefits and accepted - if not honored -practices that are often overlooked in the mire that is the copyright witch hunt.

Now, as a tutor and educator, I have a template - no, really I do, though I personalize it for each student - that is applied with vengeance to those who simply lift passages and copy them into their work out of laziness, entitlement, or ignorance. It decries how EVIL plagiarism is, and how it should NEVER, EVER be done because "it can result in a failure of the class, a failure of your semester, and even as extensive as being kicked out of your school." It's stealing, it's wrong, DON'T DO IT!

Of course, defining things in black and white is useful in teaching - whether it be school or life. "Learn the rules, and then break them" is something that writers know in regards to things like grammar and style (because, you know EVERY essay is five paragraphs, with an introduction, conclusion, and three body paragraphs - each with it's own topic sentence related to and having been mentioned in the thesis statement, which is the very last sentence of the introduction…) Once you know what is right and what is wrong - the very end points of a spectrum, then you can explore the varying degrees of grey. Like using fragments to make a point.

When it comes to looking at plagiarism and copyright, though, even suggesting that people explore the varying degrees of grey seems quite the taboo subject. After all, so many writers struggle years to make a pittance, we don't want anyone to steal these hard-earned dollars (or pennies in some cases).

But the question of plagiarism spans millennia of writing and a globe of culture.

For starters, not all cultures embrace the American and "Western" idea of "copyright" and the evils of plagiarism. Per Ilona Leki's explanation of different rhetorics in Understanding ESL Writers, many Asian, Eastern or Western, cultures automatically include quotations, opinions, and writing from masters in their field - without attribution. It's assumed everyone has read these masters; if you must point it out, it negates the authority of the source. In referencing poetry and the Koran, Arabic cultures also do not necessarily attribute; everyone ought to know these sources - or if they don't, they should look them up.

Debating plagiarism even in Western cultures is nothing new, either. Shakespeare, in many studies - and even in his own time - was accused of plagiarism. Yet, we still study him and honor him as "The Bard." However, as Richard Posner points out in his Atlantic article, Shakespeare took what he stole and enhanced it: His writing enhanced the meaning of the original, and the meaning and context that piggy-backed on the original enhanced his work, making something stronger, more beautiful, and with its own meaning. Who's to argue that the many bits of what would be called plagiarism in T.S. Eliot's The Wasteland and Love Song of J. Alfred Profrock, didn't enhance both poems? (Ok, several people - but they got PAID to publish (and teach) these books & studies I had to read in grad school! How is that bad?) In fact, both of the poems lament a loss of originality, death of new ideas… the fact that there are pieces of plagiarized work purposefully enhance the meaning; they show the meaning. And they compliment the author from whom the work was stolen. As Eliot, himself, said, "immature poets imitate; mature poets steal."

With Hegemann's novel, as Chris Meadows from Teleread.org points out, one of the themes is "mixing" and a lack of originality. In one of the pages she "plagiarized," it includes the character stating that "Berlin is here to mix with everything," and pointing out that he "helps himself everywhere he finds inspiration." That the passage has been taken from where the author finds inspiration is similar to what Eliot, Shakespeare, Wilde - and many other predecessors - have done. It's purposeful; it bestows meaning by adding another level of questioning to what is considered original.

Of course, where the problem lies - in modern day copyright - is that there isn't anywhere in Hegemann's novel that notes she borrowed or "was inspired" or such from any sources. Nor does she name any other sources. I do not know if in Germany there is the normal disclaimer on US and UK books that states all copy within is original to the author. I also don't know German copyright law. In the U.S. and U.K., because of the required disclaimer and copyright law, Hegemann would be responsible for making some note of her sources; her agent (assuming she is a good agent) would know this. A modern problem is how MUCH reading material is available. Even as late as when Eliot was writing, there weren't BILLIONS of books an individual could read, so it was likely that a borrowed/mixed/plagiarized page, a stanza, or even a line of poetry would be more recognized - as the author may have intended. (I say "may," because I have no time machine to ask them… though Eliot seems likely to have been willing to share.)

On the other hand, though, the book from which she stole the most passages - including the full page that has been so oft pointed out - has benefited from this controversy. In looking at the Amazon ratings, Strobo, the plagiarized book, has a much higher review rating, a higher list point, and in the past ten days - since Hegemann's controversy - has made it to the top 100 bestsellers in German - and risen to #142 in overall bestsellers. For a little-known book, that's quite the lift in earnings for the author, "Airen." Strangely, despite all the mentions, there is no actual commentary from the Airen in any articles referencing this controversy. Does he mind? Has he, himself, sampled/mixed/plagiarized, so he doesn't see the problem?

The issue of plagiarism and copyright isn't as black and white as we are taught; there is quite the pallet of grey. There are benefits and cultural practices that embrace what much of the Western World calls "plagiarism." I haven't even gone into art and culture outside of writing - and the debate is even hotter there! There is a lot more to talk about on this topic - and I will return - but this argument is simply to point out that there is room for debate, room for "mixing," and room to reinterpret and redefine "plagiarism" in our culture - because it's existed long before we invented copyright.

What do you think? How much can the idea and "crime" of plagiarism be defined and redefined?