Copyright and the Public Domain

Copyright is of course a blessing for writers–it’s there to maintain our rights to our own work, sanctioning those who would copy it or pass it off as their own. Copyright helps keep artistic work a viable industry.

But from the other side, the writer who wants to incorporate quotations or references to others’ works into their own as part of a new piece of writing, copyright creates a minefield. In fiction, can I quote song lyrics? Can a character recite a poem? In blogging, can I use images I find on the web? Can I quote from literature or other texts?

Such questions rapidly become a rabbit-hole into the labyrinth of copyright law. I am no lawyer. I have been reading what others have to say about the issue, and today I’ll share here a few resources to help others.

Within the United States, the general rules of copyright for written work are as follows:

• Works published before 1978 (when the United States’ Copyright Act of 1976 went into effect) are under copyright protection for 95 years from the date of publication.
• Works published 1978 or after are under copyright until seventy years beyond the death of the author.

Public Domain Day

Every year on January 1, a marvelous new batch of works crosses that 95-years-past-publication barrier and enter the public domain. At this point, they are free to be used by other writers and artists without the need to seek permission. This year, 2021, some marvelous works have entered the public domain, including F. Scott Fitzgerald’s The Great Gatsby, Virginia Woolf’s Mrs. Dalloway, and many more.

Jennifer Jenkins at Duke University’s Center for the Study of the Public Domain has an excellent survey of these newly available works and some important discussion of why the public domain is important and what it means in the artistic world. The article also gives a helpful overview of copyright in general, its function in society, and, meaningfully, the way copyright law has affected artists differently through history based on race.

Fair Use

Under particular circumstances, copyrighted material can be used without permission from the copyright holder. A lot of what qualifies as fair use concerns nonprofit, educational, and other noncommercial uses. But for us as writers, in most cases what we are doing is at least potentially commercial. Interestingly, parodies that ridicule a work of literature by imitating it are often considered fair use under copyright law. See the US Copyright Office for more information about fair use.

Another criterion that can qualify for fair use is if the work uses copyrighted material transformatively. This is based on a 1994 US Supreme Court case, Campbell v. Acuff-Rose Music, but it has been a matter of much legal argument about what precisely constitutes a transformative use of material. The terms laid down in the Supreme Court decision state that transformative use involves “altering the original with new expression, meaning, or message.” Read more about the idea of transformative use here.

What should writers do?

We live in an intertextual world, and the desire to put our work into dialogue with other texts is strong. The realities of copyright law, the same laws that protect our works from appropriation by others, mean that we have to tread carefully. Although the safest and easiest course is to simply never go down the road of quoting or referencing others’ work, we might feel in particular cases, we want to find a way.

In such cases, first identify whether the work you want to use is under copyright. If it can be definitely determined that no copyright exists, adapt away! If the work does fall under copyright, to use it you will need to seek permission from the copyright holder.

Fair use of course sounds really appealing, and potentially a particular use of another work within a story or poem would qualify as transformative fair use, but because these terms can be so complex, without legal advice it is probably best not to assume that what we are doing qualifies.

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How have you used other writing, song lyrics, or other materials in your writing? How have you navigated questions of copyright?

Best wishes for the coming week,
Jimmy