Writer Wednesday: Fair Use and Mashups

What I’m listening to: Dark Nights by Dorothy

For those of you freelance writers who work your asses off to do your jobs correctly, you’re about to feel some vindication.

There was this book — a successful one, and one that was crowdfunded — that was no more than a mashup of both a Dr. Seuss book and Star Trek.

How popular?

Think plenty of legendary names you might actually recognize if you were into comic books. I don’t, but that’s me.

The mashup in question: Oh, The Places You’ll Boldy Go.

Seriously. It was that shameless.

 

Long story short, don’t piss off the Seuss estate. They went after the creators of the book, citing copyright and trademark infringement. The creators of the mashup claimed fair use.

In June 2017, the US District Court Ninth Circuit for the Southern District of California agreed with the Seuss estate — fair use, in this case, was not found.

 

Take that, mashup artists everywhere.

While this case is still ongoing (the defendant claimed its parody of both the Star Trek and Seuss creations fall within fair use rules), it warms this writer’s heart to know that courts are taking notice of what’s become an alarmingly common practice — taking bits from a few articles and attempting to pass it off as a completely new article.

I won’t make judgments about the ongoing case because I don’t know the facts, and I’m not an attorney or a legal expert, so the creators are innocent until proven otherwise. However, I will use the entire basis of the case for one purpose: to point out that if it ain’t yours, don’t be using it without permission.

Period.

Even if these creators of the work under scrutiny come out the other side victorious, don’t expect it to change the way you should be operating.

Live by this motto: Don’t claim what isn’t yours. Particularly mashed-up material.

So how does a writer actually write anything if you can’t use what isn’t yours?

Enter Fair Use.

The Copyright Act determines fair use using four criteria. They look at:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

What does that mean for you, freelance writer?

• You can cite sources.
• You can quote small portions of a larger work (with attribution).
• You can’t use parts that will create a negative market impact on the copyrighted work (like posting the ending of a best-selling book).
• When in doubt, get permission.

For those of you who are new to this mashup idea, here are reasons why mashups are bad:

• A mashup is nothing more than pasted-together content that the writer presenting it to the paying customer didn’t create.
• A mashup could well infringe on one or more copyright and fair use laws.
• A mashup is unfair to your paying clients, particularly if they didn’t ask for it (and if they did, lose them as clients).
• A mashup is a lazy, dangerous way to make money.
• A mashup steals someone’s research and hard work.
• A mashup, if it happens to you, is going to piss you off and make you want blood.

In the past, there have been writers who have actually pushed the idea of creating mashups as a smart business approach.

That would be wrong.

Very wrong.

Writers, do you still see instances in which people are either promoting or passing off mashups as a viable writing method?
Where have you seen mashup articles? Have you ever alerted the original authors to the existence of the mashup?
Have you ever been a victim of a mashup?