Fair Use in Fiction

You know, with all the hullabaloo with Savage Gate, there’s been a lot of bandying about of the term “fair use.” You can check out fair use and copyright by visiting the site of the US Copyright Office. But here’s a good explanation from the US Copyright Office’s website:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

See how I attributed the quote that I used for this non-commercial use of information? That’s an example of fair use. I used someone else’s words with attribution. You should also note that there’s no mention of “in a work of fiction” in the quote. Or anywhere else that I could find on the copyright site.

I know, that’s a lot of eye-glazing content to try to understand. But what I’ve gleaned from various sources is that fair use requires some sort of acknowledgment or attribution of the work used. Example, Vanilla Ice got into a lot of trouble for sampling Queen’s Under Pressure in his song Ice, Ice Baby.

To use someone’s work without acknowledgment of some sort is plagiarism. Without the attribution or acknowledgment, the “fair user” is by default claiming the work as his own. This isn’t necessarily copyright infringement, especially if it’s something that is too old to be protected and is now in the public domain. Check out plagiarism.org’s list of different types of plagiarism.

EXAMPLE:

Say I’m working on a historical romance in which my hero is a free man of color working the Underground Railroad and my heroine is a runaway slave who killed her master’s son. To get my story right, I need to do research into the Underground Railroad, slavery, and runaway slaves. In my research I uncover a first-person account by Frederick Douglass on the Internet. Can’t get much more sourced than that.

So as I’m reading this narrative, the words just touch me. Especially this part:

“I have often been awakened at the dawn of day by the most heart-rending shrieks of an own aunt of mine, whom he used to tie up to a joist, and whip upon her naked back till she was literally covered with blood. No words, no tears, no prayers, from his gory victim, seemed to move his iron heart from its bloody purpose. The louder she screamed, the harder he whipped; and where the blood ran fastest, there he whipped longest. He would whip her to make her scream, and whip her to make her hush; and not until overcome by fatigue, would he cease to swing the blood-clotted cowskin. I remember the first time I ever witnessed this horrible exhibition. I was quite a child, but I well remember it. I never shall forget it whilst I remember any thing. It was the first of a long series of such outrages, of which I was doomed to be a witness and a participant. It struck me with awful force. It was the blood-stained gate, the entrance to the hell of slavery, through which I was about to pass.”

Reading this, I realize it’s a powerful motivation for my heroine to not only kill her master, but to escape afterward. The words are powerful and give the reader a blunt picture of the realities of slavery. So I decide to use them.

My hero asks, “What made you kill him?”

“It was too much,” she replied, her voice thin. “I have often been awakened at the dawn of day by the most heart-rending shrieks of an own aunt of mine, whom he used to tie up to a joist, and whip upon her naked back till she was literally covered with blood. No words, no tears, no prayers, from his gory victim, seemed to move his iron heart from its bloody purpose. ”

She knotted her hands together. “The louder she screamed, the harder he whipped; and where the blood ran fastest, there he whipped longest. He would whip her to make her scream, and whip her to make her hush; and not until overcome by fatigue, would he cease to swing the blood-clotted cowskin.”

Tears burned her eyes, tears of righteous anger. “I remember the first time I ever witnessed this horrible exhibition. I was quite a child, but I well remember it. I never shall forget it whilst I remember any thing. It was the first of a long series of such outrages, of which I was doomed to be a witness and a participant. It struck me with awful force. ” She stopped, swallowed. “It was the blood-stained gate, the entrance to the hell of slavery, through which I was about to pass. With my very soul at stake.”

And my chapter continues. At no point in the story do I mention that Frederick Douglass wrote this in his autobiography either by inserting a footnote, an author’s note, or a bibliography at the end of my novel. I have taken Douglass’ words and put them in my heroine’s mouth as if they were my own creation.

People, this is plagiarism.

EDITED TO ADD: In the just about out Vegas Bites Back, my hero is a werewolf who met Frederick Douglass. At one point the heroine notices the copious stacks of books in the hero’s bedroom and asks him about them. He replies, “Frederick Douglass said, ‘Once you learn to read, you will be forever free.’ I took his words to heart.”

That’s how you attribute something you use word-for-word.

Is plagiarism illegal? Not necessarily. Douglass’ autobiography is of course more than a century old, and as such is in the public domain. Any student or scholar could quote parts of Douglass’ narrative in a research paper or other critique with no worry as long as they acknowledge the source. That’s fair use. Taking the narrative and creating a story about escaped slave Delilah Mae Reddick is plagiarism.

Not illegal, but definitely unethical. I’ve besically allowed people to think my book is composed of my words. My name’s the only one on it, after all. Fraud? Perhaps. Wrong? Abso-freakin’-lutely.

Perhaps there should be an Author’s Code of Ethics.