Article Archive


Intellectual Property and Its Uses
Part Two: Copyright    

by Lori L. Lake

Last month, we talked about trademarks and brand names and how they affect authors’ work. This month, I’d like to share what I’ve learned about copyright issues that affect writers of novels and stories.

Copyright law is a specific area of intellectual property law which protects original "works of authorship." Such works include novels, stories, poems, essays, memoirs, screenplays, descriptions of scientific discoveries, musical compositions, textbooks— any literary, scientific, or artistic work in a fixed form (written, video, disk, etc.). The protection extended is this: your original ideas, once expressed in a fixed manner, are protected by law. They are your property, and only you can grant others the right to copy, distribute, re-do, perform, display, or in any way use your work.

Anybody who has ever been in an English class has heard the instructor talk about plagiarism—using someone else’s work and claiming it as one’s own—and we are led to believe it is a terrible, shameful no-no. If I decide to write a story about the South and copy out parts from Gone With The Wind, I am guilty of plagiarism, and I have infringed upon the intellectual property rights of Margaret Mitchell. I could be in trouble.

On the other hand, in 2001, Alice Randall wrote a novel called The Wind Done Gone, a condensed version of Gone With the Wind told from the slaves’ point of view. It kicked up quite a ruckus and went so far as a court case. After quite the brouhaha, the courts ruled that Randall’s book was a literary parody that was acceptable because, although it alluded to Mitchell’s 1936 novel and borrowed circumstances from the work, it was a brand new original creation with its own social commentary.

In some cases, nobody ever complains—as in the case of the Carol Burnett Show doing a parody of Gone With The Wind which they titled "Went With The Wind." It involved an unforgettable scene of Burnett descending an antebellum staircase dressed in the rich draperies from the plantation—and including the curtain rod across her shoulders! Apparently that was such an over-the-top and ridiculous parody that nobody from the Mitchell family took offense; but with Randall’s searing indictment of Mitchell’s version of the Civil War South, apparently that hit a nerve.

More than once, courts have determined that parody of an established work is acceptable as a new, copyrightable work. Weird Al Yankovic’s "Eat It" parody of Michael Jackson’s song "Beat It" is a good example on the musical front. In the realm of TV, you could, for example, take an episode of TV’s "Bewitched" and make a parody out of it so long as you made sure you included sufficient social, political, or cultural commentary and significant new material. Actually, "Bewitched" was a parody of other shows on TV from the early 60s! So was the "Batman" TV show. Everything old is new again.

But let’s move from big picture generalities to the specifics of the world of writers who are reading Just About Write. Let’s say you love to write, and you’ve been working on a novel for many months. It’s an adventure romance called Racing With Abandon. You’ve shared it with friends on the Internet, gotten tips to improve it, and edited like crazy. Now, you’re ready to post it with glee to a big website specializing in this type of story where sometimes authors actually get publishing offers. It’s your first foray into such a long work, and you are excited beyond compare.

A day goes by, and you get your first email with RE: Racing With Abandon in the subject line, and you open it with haste. Your excitement quickly fades to panic when you read: I loved the story you wrote when I first read it here last month. XYZ wrote and posted a story just like yours called Speeding Recklessly. Although the character names are different, did you know that it is almost exactly the same right down to most of the dialogue and scenes?

Imagine your shock and grief over this. You know you wrote the entire story without borrowing anything from someone else. In fact, a lot of the novel comes from your own personal experience, experiences you know another person could not have had in exactly the same manner that you wrote it. This other person, this XYZ who somehow got a copy via the Internet, has lifted your novel and is passing it off as his own.

Considering the size of the Internet and the vast array of websites catering to so many aspects and types of writing, it is amazing that the scenario above doesn’t happen more often. If it ever did happen to you, then your first step is to contact the webmaster of the site to plead your case. Somehow, you must protect your work and lay claim to the inherent copyright. It can be a messy, expensive, and malice-filled process to claim your rights and discredit the person who has "stolen" your intellectual work. Sometimes that entails a legal process. A good example occurred when George Harrison had to pay a large settlement to the writers of the 1960s tune, "He’s So Fine." Without realizing it, Harrison’s famous song, "My Sweet Lord," had the same melody. Despite the fact that Harrison hadn’t intended to "steal" the tune, he had inadvertently done so, and there were monetary consequences. Whether you intended to infringe or not, you are still responsible if you have done so.

The moment you commit original work to the page, tape, video, etc., you own its copyright, and it becomes your intellectual property. For a fee, two copies, and the completion of paperwork, you can register your finished work—or every single draft of your work—with the U.S. Copyright Office. (Online site information is at the end of this article.)

Enforcing copyright isn’t an easy thing to do, but if your work is ever "lifted" and used online or in print by someone else, immediately contact the publisher, website owner, administrator, or distributor. If reporting the infraction does not rectify the use of your intellectual property, you may be forced to seek legal help.

It’s important to note that U.S. Copyright law can only be enforced in the U.S. Internationally, there is only the "Berne Convention," which is a set of copyright rules many countries have agreed to enforce. Unfortunately, not all countries observe the rules. It is by no means proper, but writers from different countries have swiped intellectual property from others. An example I remember from college involves D.M. Thomas’s novel, The White Hotel. In his 1982 book, Thomas appears to use Holocaust information about the massacre at Babi Yar taken from A. Anatoli’s book, Babi Yar, which was published in Europe. Even though Thomas does acknowledge his debt to Anatoli on the copyright page of his novel, I remember both students and my professor having a heated debate as to whether this was appropriate. Since The White Hotel is still in print, apparently neither Anatoli nor his publisher ever challenged the issue. (Or if they did, they were not successful.)

So when is it okay to "borrow" the intellectual property of another? The answer to that seems to be, "It depends." Sometimes the rules are in the eye of the copyright holder. For instance, since the late 1960s, clever people have been writing "fan fiction." Accounts differ as to its origin, but most people agree that the TV program "Star Trek" was the spark that inspired fans to write their own fiction about the characters in that show. The copyright holders recognized a good thing when they saw it and did little to interfere with what most thought was a harmless endeavor . . . until the Internet gained such popularity. At that point, copyright holders had to decide whether they wanted their characters, their program circumstances, and/or their original creations lifted and used by others. With a wink and a nudge, the creators of "Xena: Warrior Princess" actually encouraged fan fiction on the Net; at the same time, David Weber, author of a series of Honor Harrington books, threatened lawsuits, and he works vigorously to shut down any fan fiction references to his admired heroine.

An informal (but not necessarily legal) rule of thumb that has sprung up is that if the author makes no monetary profit from using another author’s characters or situations, nobody cares. In the case of "Xena," the fact that the TV show is, arguably, a parody of much of the history of Western civilization and "borrows" from many sources (Hong Kong action flicks, Greek and Roman mythology, etc.) means that the show owners are looser with their intellectual property than someone like David Weber might be. Many Net authors feel that so long as they give credit in Disclaimers to the owners of the intellectual property, they are in the clear. As I said before, this can vary from case to case.

What is clear is that if you specifically quote intellectual property belonging to others but give credit where credit is due, it goes a long way toward being aboveboard. Examples:

  • Hemingway used to say something to the effect that life breaks us all, and many are stronger in the broken places.
    (Paraphrasing Hemingway gives credit properly.)
  • On the weekly television program "The Quest for the Perfect House," the main character, Bullet, always says, "Old houses are money pits," and then he laughs.
    (The character is quoted, the program is referenced; you could go one step further and find out who the writer was, but it’s probably not necessary.)
  • Physics 101, Paper Introduction: …In this essay about relativity, I will be quoting the theories of Albert Einstein at length, agreeing with some of his research and disputing some aspects, all of which will be annotated in bibliographic form at the end of the book.
    (The writer makes it clear he or she will differentiate between Einstein’s work and his or her own.)

Examples such as the above are covered by the "Fair Use Clause" of Copyright Law which allows for limited use of another person’s work within your own so long as appropriate credit is given. I have included links at the end of this article to resources that explain "Fair Use" at length. Next month, we'll continue with copyright as it applies to Lyric Reprint Permissions and how authors must take even greater care with them:

Coming Next Month:
Intellectual Property and Its Uses

Part Three: Lyric Reprint Permissions

A useful book:
LitLaw Guide

Literary Law Guide for Authors
     by Tonya Marie Evans and 
     Susan Borden Evans,
     Attorneys at Law

U.S. Copyright Office:

Online Sites with Information re: Intellectual Property
© Lori L. Lake, 2003
Author of the novels Different Dress, Gun Shy, Under The Gun,
and Ricochet In Time.
From Lake’s untitled book about novel writing, a work in progress.
Not for distribution or copying without the express permission of the author.
Lori Lake can be reached at and welcomes questions and comments.

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