Wednesday, March 30, 2016

What Authors Need To Know About Fair Use

One of the most commonly asked questions I see writers asking online (aside from "what should I name my protagonist?" and "how do I get published?") is whether or not it's okay for them to mention the titles of books, song lyrics, and other intellectual property in their novels. They've read books that use lines from a movie in dialogue, or which incorporate famous books into their plots, but they've also heard stories of authors being sued because they took too much of something that wasn't theirs, and put it in their book.

So what's the answer? Fair use, since you ask.

What does that even mean?

What Is Fair Use?

As I said in Copyright Myths Authors Should Know About, fair use is a legal idea that is often important for authors to know and understand. In broad terms, fair use means that if you are taking a portion of a copyrighted material, and using it in very specific ways, then you are not infringing upon the creator's copyright. Two of the agreed-upon things that fall under fair use according to Stanford include:

- Parody: This is why books like The Wobbit by Paul Erickson exist, and are allowed to make money.

- Commentary and Criticism: This is why movie reviewers can quote the film without being sued. You can't be a critic if you aren't allowed to talk about the work in question.

Outside of these defined areas, fair use can get a little murky. For example, it's possible to take short snippets of copyrighted material, and to mix them together in order to create something new. Youtube has an educational video on this topic, and it explains why there are music videos using copyrighted songs, and copyrighted movies, but by splicing them together into a music video the creators are making something new, which often grants them fair use protection.

So It IS All Right?

I didn't say that.

Fair use is tricky when it comes to fiction. On the one hand, telling the audience that your protagonist has had nightmares ever since he read It by Stephen King is not a copyright infringement. You could even give a summary of some of the scenes, driving home the effect they had on the character, and you'd still be in the clear. You wouldn't start sailing into troubled waters until you started pulling swaths of text from the book, and re-printing them in your own novel. In much the same way you can tell the audience that, in a tense restaurant scene, the song Don't Fear The Reaper by Blue Oyster Cult is playing over the speakers. You won't start skating over the line until you begin quoting the lyrics in your story past a certain point.

Strap in, cupcake, because it gets more confusing.
Generally speaking, you can talk about books, music, movies, and other creative works without any real worry, as long as you don't start cutting pieces off of them and putting them in your book.

And since you ask, fair use is only about infringing on copyright. There are a slew of other problems authors can run into when they try to re-create a reality as they know it in their books. Especially if the real-world entities they're depicting take offense to the way they show up in a book.

Need an example? Well, if you want your main character to stop and get food from a real-world burger chain, then your portrayal of the restaurant could lead to legal action from the corporation (in theory, at least). The same is true of portrayals of real people, and particularly of celebrities and other public figures. Even a discussion of real-life products, could be enough to cause trouble.

Is that likely? Not terribly. For example, no one is likely to take legal action against you because you listed all the stats on your protagonist's muscle car, or because your detective with a drinking problem favors a particular brand of hooch. However, the more visible your depictions are, the more likely it is that a company, or a person, might take notice of what you're doing, and raise a complaint.

It's Always Better to Err on The Side of Caution

So what do you do, with so many pitfalls just waiting to entrap you? Well, the easy solution is to write a story that doesn't take place in the modern day. That way, with the kingdoms, villages, etc. all made up, there's no chance for you to accidentally go too far in your depiction of the modern world, or to quote a song or story that isn't in the public domain.

Of course, that isn't always a worthwhile solution. Sometimes you just need a modern setting to make your story work. If that's the case, remember that it's always best to err on the side of caution, and to leave out details that might be considered problematic. For instance, don't say that your protagonist is going to Barnes and Noble. Instead, say that it's one of those corporate bookstores, where everything is big, open, and smells vaguely of spilled espresso. Don't say that your lead picked up two or three McDoubles; instead tell us that she hit a drive-thru for the kind of food that had become a guilty pleasure after she reached adulthood. Max Brooks gives us a master-class in this by using descriptions in World War Z that may refer to actual celebrities popular during the book's publication, without ever mentioning them by name. The one that stuck with me was, "the drugged up whore famous for being a drugged-up whore." A description that could apply to a slew of names in Hollywood, but which could equally be no-one.

And if you feel the need to include a poem, a song, or to throw in a copy and paste from your favorite novel to build some context, stop and ask yourself how much is too much. It might be one of those darlings you're better off drowning in the editorial stream.

It's an easy enough habit to keep, once you're in the zone.
So, just to refresh, it's perfectly fine to mention factual things in your story. Under narrow circumstances, you can ever reproduce copyrighted works without suffering any consequences. However, if you want to stay as safe as possible, try to make sure you're not giving any unintentional product placement to companies who may object to being in your book.

As always, thanks for stopping in to see what I've got to say this week. If you'd like to help support me and my blog, then stop by The Literary Mercenary's Patreon page and become a patron today! Also, if you haven't done so already, why not follow me at Facebook, Tumblr, and Twitter to stay up on my most recent releases?

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