Trolling for Sources could Lead to Far Stickier Issues

A frequent question I hear from those new to writing is what amounts to a "fair use" question, but it can quickly develop into so much more.

Shortly after Christmas, a writer on a writing list I belong to asked the list in general if it would be OK to quote a passage from a book if the writer gives the author credit. Despite my convoluted summary, the questioned posed seems like a simple question, but I see it as a much more complicated issue that I think those new to writing for publication need to be aware of.

While on the surface, it may seem OK to quote someone from a book while giving credit to the original author, I would argue that this is almost never OK. I have several reasons for my answer, and I want to share my thoughts with you.

The first consideration as the author of the article, you have to ask, what is your ultimate purpose? If your ultimate purpose is to develop an ongoing relationship with an editor by providing an article that indicates you are a well-qualified, professional writer, you want to provide a high-quality article with original reporting. This indicates to the editor more than just your ability to write; it also indicates your ability to identify the need for and the ability to utilize legitimate sources. In other words, you are also promoting your reporting skills to an editor as well as your writing skills. Proven, dependable reporting skills can get you a second assignment over another writer that just offers solid writing skills.

If you rely on published material in your article rather than directly interviewing the author and/or another expert, you may unwittingly use outdated and/or inaccurate information in your own article, which isn't something editors want to buy. For that reason alone, I would always recommend interviewing the author and/or expert directly. You never want to put yourself in the position where you are repeating another writer's mistake.

There are also the more complicated issues that arise when you quote from published material such as copyright, fair use and plagiarism.

In response to the writer's query on the listserv, one person mentioned learning from a teacher that it was considered "fair use" as long as you quoted less than 30 lines from a book. The problem with this understanding is that fair use operates differently in a classroom and/or academic setting than it does when you are writing for publication. Guidelines provided by an instructor may have been intended to apply only to a specific class or assignment. In that class, the instructor and students may have understood all books used for that class are large tomes, but some books (like children's books) may be less than 30 lines total and weren't considered in the guideline offered by the teacher because shorter books were not an option.

Copyright, fair use and plagiarism are all differing terms in the U.S. You can find a lot of information at copyright.gov including this bit about fair use, "The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the
copyrighted material does not substitute for obtaining permission." http://www.copyright.gov/fls/fl102.html

For any questions any writer may have about copyright and/or fair use in the United States, http:/www.copyright.gov is the best reference source.

Copyright infringement and fair use is determined, ultimately, in a court of law. It can depend on what you quote as much as how much you quote. For instance, if the book takes 250,000 words to get to a key concept, and you write an article revealing just that key concept, you may be overstepping your bounds in terms of fair use. I don't think anyone can say "more than 30 lines" needs permission because books can vary in length, and how do you consider articles? The content in determining fair use is just as important as the length as well as how the new author uses that information. That's why it is ultimately a legal decision. I would say that a good guideline for writers would be to consider how pertinent the original material is to your work. If your work can't survive without the quoted material, you are using enough that you should seek permission from the original author.

(I feel as if I have to add the caveat that my thoughts regarding this particular discussion applies to articles written for the general, commercial-oriented audience and does not consider any exceptions/conventions that apply to academic writing.)

Fair use and plagiarism are two different things. Copyright and fair use are legal matters while plagiarism is an ethical/moral/professional issue. I make that distinction with the complete understanding that all three are serious concepts that any writer must be well versed in. Plagiarism should not be tolerated. Proper credit must always be given to avoid plagiarism. The specific requirements for what constitutes "credit" can vary depending on what genre you are writing.

Regardless of the genre, you must give credit when you do any of the following: 1) direct quotation from a source, 2) indirect quotation from a source and 3) the use of an idea from a source. It doesn't matter if you use just one word, you should still give credit. Often that one word would be a catch phrase; for instance, Rebecca Moore Howard of Syracuse University coined the term "patchwriting" when referring to students who replace key words in a sentence without really changing the sentence, like replacing "good" for "great."

I particularly like to use Howard's phrase as an illustration for number three because it is both on the topic of plagiarism as well as being a great example of how a single word can convey an idea that is directly tied to the original author, which is why citation is required for an idea. Not to mention it gives students a heads up about what is expected when it comes time to paraphrase a source.

Genre and Citation considerations:

How to cite and credit a source is often just as important as providing credit. In academic writing, the way sources are cited varies depending on the profession's standards. For academic writing, citation is very formal and follows a complicated set of guidelines that varies from field to field. Humanities uses MLA while nursing uses APA. There are other citation standards for other fields too.

The genre you are writing in often sets the standards for the type of citations you need to use.

In journalism, sources need to be cited, and the information provided can vary. Most often you will find a name, position and residence, but it can include age or other identifying information relevant to the article. The position used in the article will be selected in relation to the article's topic. If you were to interview Dan Smith, a professor, about his son's accomplishment in wrestling, it would be more relevant to the article being written to identify Dan Smith as a parent not as a professor.

In academic writing, citations are much more detailed and can include source name, how the information was obtained (personal interview, e-mail, book, article, etc.) as well as the date the material was written and often for online sources when the information was accessed as well.

In fiction, citations may be much more informal and may be found in a number of places such as the acknowledgments, in an author's note or thank you, buried in the small print at the beginning of the book or in an entire section at the end. Although it is fiction, authors do a good deal of research, and it is the research that is cited. I'm not a fiction writer, so I can't offer any more suggestions about how this could happen beyond what I have noticed as a reader. Two of my favorite authors, Jodi Picoult and Patricia Cornwell, often have a long list of acknowledgments in each book indicating the sources of their research most often with a caveat that notes any errors should not be attributed to the source but rather to the creative license of the author. (Even as I write this, I have the urge to check books I have by both authors to see if my memory is correct. I am going to resist the urge. I am pretty sure I'm right. Let me know if I'm wrong.)

A couple of interesting cases regarding plagiarism:

Just this week, two accusations of plagiarism have made the news.

An online web site noted a striking similarity between the work of a fiction writer and several nonfiction sources. The allegations ended up making Yahoo News. Since the original article breaking the story, other articles have followed like this one: http://news.yahoo.com/s/ap/20080110/ap_en_ce/books_romance_writer_2
I encourage every writer to read this particular article since it illustrates how plagiarism can seriously injure a writer's reputation even when the writer in question won't face any formal/legal ramifications. In this instance, the author's publisher is supporting the author.

Jerry Seinfeld's wife is also being accused of plagiarizing her newly-published cook book. The author of the book Seinfeld allegedly plagiarized is suing for copyright and trademark infringement. This case is important to note because it is often being referred to in the media as the Seinfelds' being sued for plagiarism and defamation. Even CNN's headline, "Seinfeld, wife sued for plagiarism, defamation," but plagiarism is not a legal issue. You can't sue for plagiarism. It is an ethical/professional/moral issue, remember?

While it is true the Seinfelds' are being sued, Jessica Seinfeld is being sued for copyright and trademark infringement NOT plagiarism despite numerous headlines saying otherwise. The confusion seems to be arising from wording in the legal complaint filed in court in the section where the defendant sets out their allegations. The fifth allegation mentions "brazen plagiarism" that is so often being quoted, but the complete wording makes it clear the legal basis for the suit is more than plagiarism. TheSmokingGun.com has the entire legal document available, and the source of the misunderstanding seems to be this line: "Jessica Seinfeld's brazen plagiarism of Lapine's book constitutes copyright and trademark infringement under Federal and New York law."

As writers, it is important we report accurately especially when reporting on plagiarism and copyright issues. Other related terms you may want to investigate include ghostwriting and boilerplating. I would say what these two terms describe is NOT plagiarism, and I encourage you to do some research to find out why.

To me, another interesting recent case of plagiarism happened in November 2007 when a well-respected journalism professor wrote an opinion column that used quotes obtained by a student journalist without properly crediting where he obtained the quotes. He cited the person who was quoted, but he didn't get those quotes on his own but instead copied them from a news article in another paper. The professor and author, John Merrill, later called it "unintentional plagiarism," but other professors at the University of Missouri (a top journalism school) said it was plagiarism without any hesitation. You can read the entire opinion here: http://www.poynter.org/column.asp?id=101&aid=133994

For other plagiarism stories in the news, I refer you to one web site that publishes an end-of-the-year round-up of plagiarism/fabrication events, primarily in the press. You can find the latest round-up here: http://www.regrettheerror.com/regret-articles/2007-plagiarism-round-up