Infringement, Fair Use and Derivative Works

by Gabriela Pereira published in Writing

As writers, we’re often inspired by work from artists who have come before us.  One question that often comes up is whether we can use some piece of another artist’s work in our own work.  The answer is: it’s complicated.  There are three things you have  to consider when using part of someone else’s work in your own.  These things are: infringement, fair use and whether or not what you’re doing is considered a “derivative work.”  Here’s a quick rundown of these technical terms.

Infringement

When you take someone else’s work or idea and use it as your own.  Fan fiction would often be considered infringement because you’re taking characters that were created by another author.  Sure, you can write it for fun in the privacy of your home, but you won’t be able to sell it.  Note also that just changing a few small details is not enough to make a character or a story your own.  There is an exception to infringement, though, and it’s called “fair use.”

Fair use

What you use when you write an English paper and you need to use quotes in the paper.  You’re not paying the author you’re quoting for the right to use his or her words, but because you’re only using a short snippet and you’re using it for academic purposes, it’s OK.  Just make sure you attribute the quotes properly when you use them.

There is another case where fair use comes into play and that’s with humor.  If you’re imitating an existing story or brand but are doing so as a parody, you may be able to claim “fair use.”  One example is the imitation of McDonald’s brand in the movie Coming to America.  The imitation restaurant is called McDowell’s and it serves Big Mics and Chicken Nukkets.  In this case, the very similarities between the real and imitation brands is what’s being played for laughs.*

Derivative Works

Any works derived from the original work.  In other words, if you own an existing work, you also retain rights to follow-on works in both that medium and other media.

For instance, suppose you own the rights to a novel.  You will also retain rights to sequel novels, plays, films scripts and films, audio books and translations of the original (provided you don’t give these rights away).  This is one place where it can be invaluable to have an agent in your corner.  Your agent will help you make smart negotiations and keep you from giving away all these rights when you sign a contract.

Take-home message:

1) Don’t use pieces of work you don’t have rights to, unless you’re certain that you’re covered by fair use (i.e. like when writing an English paper).

2) Have any doubts as to which rights you should hold onto?  Get an agent.

*In this example, McDowell’s is an example of fair use with regard to a trademark, but fair use operates similarly with copyright as well.

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  • http://www.bookechoes.com Connie B. Dowell

    Thanks for this! I’d been wondering about parody. One question though, what about simple mentions of businesses, like having a character drink a coke or eat at Burger King. I see it all the time in fiction (heck, Where the Heart Is took place in Walmart for a good chunk of the novel) but I’ve never known if there are any rules about this. Is it possible there are none, so long as you don’t commit slander?

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  • http://www.ericjgates.com Eric J. Gates

    Hi,

    There’s another aspect to this whole issue that could affect writers. The waters seem to be populated by sharks looking for opportunities to take a bite out of even our legitimate attempts at paying homage to other creatives. I recently had an experience of this type: as it is a little long to explain here, I’ll post a link to my blog where I recounted the whole tale -

    http://my-thrillers.blogspot.com/2012/01/cautionary-fairy-tale-for-writers-of.html

    I liked your post, though. Writers today have to acquire many skills apart from those directly related to putting words in order, and this kind of overview really helps.
    Thanks,
    Eric