Copyright, rights management and original content has become a whole lot more complicated in the digital age. Once published, to whom do your articles, books, poems or blog posts actually belong? JJ Marsh gives her two cents’ worth.
In his excellent novel Perlmann’s Silence, Swiss author Pascal Mercier explores the relationships between who we are and what we tell as our stories. The central premise revolves around an act of plagiarism, when a linguist is invited to speak at a conference and finds he has nothing to say. Instead, he translates the ideas of another, both literally and metaphorically, and claims them as his own. The (stolen) philosophy he espouses is appropriation of memory through language or, to put it another way, you are who you say you are.
Times have changed. Not only does new technology exist that enables consumers to cut, copy, paste, tweak, add, parody, reinvent, remix and, crucially, distribute via a multitude of platforms, but a generational mindshift has taken place.
Seventeen-year-old Helene Hegemann became a phenomenal success with her book Axolotl Roadkill. A finalist in the Leipzig Book Fair Prize for Fiction, Amazon bestseller and subject of much media adoration until her work was exposed as largely lifted from another author.
“There’s no such thing as originality anyway, just authenticity.”
Indeed, but there’s also something called attribution. (See Libby’s interview with Philippe Perreaux on Creative Commons, this issue.) At no stage did Hegemann credit the original author, who wrote under the pen name Airen.
Alternative endings, unauthorised sequels and borrowing characters has been going on ever since humans started telling stories.
The sincerest form of flattery
Homage, parody, plagiarism, remixing, fan fiction and intertextuality are nothing new. Alternative endings, unauthorised sequels and borrowing characters has been going on ever since humans started telling stories. The lines between these forms of cultural appropriation are blurred and generally guided by three things: the law, financial implications and moral acceptability.
1886, Switzerland. The Berne Convention. An international legal norm of copyright which established the principle of national treatment, which holds that each member state accord citizens of other member states the same rights of copyright that it gave to its own citizens. Author’s claim = valid in all countries.
But IPR and copyright laws differ significantly around the world. Example: in the US and UK, hundreds of books can share the same title. In Germany, yours must be original or could be subject to a lawsuit. Fair use (US) and fair dealing (most Commonwealth countries) permits the copying of literary, dramatic, musical and artistic works for the purposes of research, reportage, criticism, review and pastiche, but vary in detail and due to the use of such terminology as ‘reasonable’, or ‘fair’, are open to interpretation and arguable in court.
Additionally, the law has not yet caught up with the proliferating forms of piggybacking: spin-off, rip-off, spring-boarding such as ‘if you liked The Hunger Games, you’re gonna love this’. Twilight into Fifty Shades of Grey into Bared to You ad infinitum.
It’s not where you take things from, it’s where you take things to.
Many large franchises encourage fan fiction, remixing and homage until it affects the original in a financial or reputational sense. Then they send in the lawyers.
In our litigious society, the whiff of costly legal action is enough to make many platforms automatically delete content attached to contentious claims. Thus the principle of ‘innocent until proven guilty’ is reversed and the onus is on the new creator to convince the host/originator of respectful and benevolent intent.
The moral question is a curious one. Julie Myerson, a UK journalist, received a major backlash against her book The Lost Child, in which she wrote about her son’s drug addiction. Plundering the family’s story was seen as cashing in on dirty linen.
Dan Brown’s use of The Holy Blood and The Holy Grail as the basic premise of The Da Vinci Code was subject to an expensive (ultimately unsuccessful) claim of infringement.
In the back of her book, Susan Jane Gilman, explains how she and her publisher avoided legal issues with her memoir Undress Me in the Temple of Heaven.
Where does all this leave a writer, artist, photographer, journalist, musician, poet or creator in the digital world? Consider The Amen Break. A six-second drumbeat became the most sampled piece of electronic music ever. You’ve heard it in countless tracks from Amy Winehouse to David Bowie, yet the original players received no royalties whatsoever.
For an author, applying DRM (Digital Rights Management) to electronic books is one option, but detractors argue that it makes reading across devices harder for the consumer and that it doesn’t actually prevent piracy. Many authors set up Google alerts for title, author name, strapline and an extract to keep an eye on where and on which platforms their books appear. If you find your work available on pirate site, you can then choose to issue a ‘cease and desist’ order, identifying yourself as copyright holder to the site. If you find a copy of their work on one of the larger ebook distributors, take screenshots, note the ISBN and report via the copyright infringement option on the fake.
Creative work is extraordinarily hard to control and incredibly easy to recycle.
My philosophy is this:
If borrowing, acknowledge.
If using, ask first.
If remixing, attribute.
If creating, protect.
Lastly, the word ‘plagiarism’ only entered the English language in the late 16th century. Back then the concept was broadly defined as ‘man-stealing’.
Theft of ideas originally meant theft of identity.
Jill J Marsh is co-editor of The Woolf. She is a novelist, blogger, columnist and teacher.
For more detailed information on plagiarism, check out plagiarism.org
More about Perlmann’s Silence.