This is a warning post. I’ve been talking about the San Francisco Writers Conference, where I recently taught “Make Your Genre Fiction Irresistible.” I had the time of my life there meeting scores of wonderful editors and writers. Wow. Thank you again, Michael Larsen and Elizabeth Pomada, for inviting me!
This is about “Fair Use.”
I happened to be asked at SFWC about quoting other writers without permission.
I explained that the current thinking that “Fair Use” gives you permission to quote others without their permission is a fallacy.
It’s not based upon what’s right or even what’s entirely legal. It’s based upon lawyers’ personal issues, which are generally invisible to writers:
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Lawyers have no particular investment in preventing copyright lawsuits
A lawsuit can be incredibly costly for the writer, but quite lucrative for the lawyers. This is why the lawyers who advise writers to abuse Fair Use are so incredibly careful never to say, “It’s legal.” They can only say, “My opinion is that it’s legal.” Only a lawsuit will determine the actual legality.
And a lawyer will do exactly what you ask them to do—if you ask a lawyer, “Can you defend me in court over bending the law to violate someone else’s copyright?” the lawyer will say, “I’ll do the best I can. Fair Use is in hot debate right now, so push it to the limit. Why not?”
There are reasons why not. Some are about staying out of court. Others are about having morals.
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Lawyers must by nature be comfortable with being morally wrong
At least the lawyers are who advise their clients to risk lawsuits.
Pretty much all lawyers work at some time on cases in which they know their client is morally wrong. It’s part of the job.
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MOST IMPORTANTLY: Lawyers have absolutely no insight into the world of networks between writers
Networking is incredibly valuable to writers and their careers. Networks are built upon trust and respect. Trust and respect are completely trashed when one writer deliberately abuses the creativity of another.
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Imagine if someone tried to use your own hard-earned words without permission, and you didn’t want them to
It doesn’t matter why you didn’t want them to. The fact is, they’re your hard-earned words. So you get to choose.
And it doesn’t matter whether or not a lawyer could win a copyright lawsuit in favor of the offending writer. Nobody knows the outcome of a lawsuit until it’s all over, and in the meantime lots of money has been handed over to the lawyers, while the offending writer has done something incredibly toxic to their career: irreversibly offended a writer they need.
You would never do that person a favor again. And, believe me, there is every possibility that you would be in a position at some point in your careers in which they needed another favor from you.
Also: writers talk. I know you already know this. The reputation of the offending writer among all the writers you know would be instantly mud. Just think for a minute about the ripple effect from their one act of hostility toward you.
That’s permanent.
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Alternately, someone might take the opportunity of asking permission to strike up a relationship with you
It should go without saying that they probably wouldn’t want to quote you unless you were a writer they admired.
By taking this opportunity to show you trust and respect, they could earn all kinds of goodwill from you—even lifelong personal friendship! It’s happened to me, when I took the opportunity to reach out to writers I deeply admire. And I have close friends in high places to show for it now.
Certainly, some of the most famous friendships between writers in history have sprung out of the most basic act of kindness. But never out of an act of hostility. (Except the time Dylan Thomas got in a fist fight with a little boy in school and wound up friends with him. But that other boy wasn’t a writer.)
TIP: Don’t count on schoolyard bullying to help your adult career.
Besides, it’s just the Golden Rule: Do unto others as you would have them do unto you. Easy math!
Now, I have dealt with people trying to use my work without permission more than once since I’ve become an author and blogger. In every single instance, the person claiming Fair Use was unable to claim (much less prove) that they were legally (much less morally) in the right—only that they “believed” they were—so they were forced to Cease and Desist. Yes, they absolutely were. This includes an extremely well-known lawyer in the online writing community.
So you’ll want to remember this whenever you hear the advice that Fair Use allows you to violate the Golden Rule.
Remember what your parents and grandparents taught you: Never take without asking.
It seems kind of obvious when you look at it in terms of morality, doesn’t it?
Just ask.