Monday, December 03, 2018

My name is Inigo Montoya, prepare for litigation

Back in 2016 you posted that an author does NOT need written permission from the copyright holder if only a short line is being used. This was challenged recently by someone in my writer's group, so I'm seeking clarification.

In a novel, I reference the heroine's adoration for the movie The Princess Bride. My novel's hero borrows the phrase, "As you wish," from the movie and this is repeated multiple times throughout the book with no ambiguity regarding where he learned the phrase and it's true meaning. I felt I could use this phrase because it's short and I've made the reference clear in the story. My author friend disagreed, because of the heavy reliance on the movie as part of my heroine's backstory. She feels the circumstances require me to acquire written permission even though the only phrase quoted is "As you wish."

If I have a character who quotes lines from different movies, as long as they're no more than a single sentence, and if I have her list the reference, does that require written permission? I have her using one of my favorites: "I am made of bourbon and poor choices." After her friend asks if it's a quote, the character says, "Yes. London Has Fallen, 2016." This is one of the character's "things" and she does it several times throughout the book with various lines from different movies. Permission required for lines like that?

The fair use issue is a bit confounding, especially when using iconic words and phrases, but I'd rather err on the side of caution. Should I change it up to "As you please?" or am I safe with "As you wish?"

Gah. You can just hear my hamster wheel going round and round, can't you? I'm making myself nuts.

Do you consult your plumber about how to cut your hair?
Or maybe you consult your coiffure stylist about how to unclog a drain.

Asking someone who apparently has zero expertise on a very technical subject is thesaurus offers up "short sighted."

Fair use is a moving target. Even intellectual property and copyright attorneys don't have a fixed standard.

The National Writers Union has this to say about fair use:
Contrary to common opinion, there is no absolute number of words one can always quote without permission. Whether an unauthorized use of copyrighted material can be considered fair use depends on four primary considerations:

1. the purpose and character of the use; e.g., whether it is commercial in nature
2. the nature of the copyrighted work
3. the proportion of the copyrighted work that was used (in both quantitative and
qualitative terms) and
4. the economic impact of the use.

These four criteria suggest some rough rules of thumb: It is easier to claim fair use when you are quoting the material for a non-commercial purpose; when the quotation is essential to what you are writing (e.g., a book review); when the material you are quoting is factual; when the amount you are using is a small portion of the total work; and when your use of the material will not undermine the market for the original work.

However, in no case would using a phrase that is in the common parlance -- "as you wish" being a good example -- qualify as infringement.

Which is a good thing because "Prepare to die!" is often heard here in the Reef as we read queries.
Not to mention "I'll be back" when heading to the loo. Let alone "we're going to need a bigger boat."

There are a lot of people who think they know more than they do, and they delight in telling other people how to live, work, and litigate.

Be careful who you listen to.


E.M. Goldsmith said...

Yeah, I would not think you could copyright a common phrase that probably existed before the work in question was written, i.e. "As you wish" or "prepare to die". Both had passed the lips of many English speaking humans before The Princess Bride made its way to either bookshelves or the silver screen. As long as you are not rewriting the Princess Bride using same character names, plot lines, and phrases, you are probably good to go.

But I am no expert. Good luck, OP.

Sharyn Ekbergh said...

How about "life is good?"

It's now a trademark.

Dena Pawling said...

>>There are a lot of people who think they know more than they do, and they delight in telling other people how to live, work, and litigate.

This is so true. It is amazing to me the number of people who will “give legal advice” to others, without all of the analysis and disclaimers that are usually included when the person giving the advice is an actual attorney whose license is on the line.

For example, if you had asked ME this question, and if I was an actual IP attorney [disclaimer – I'm not], the response would go something like this:

1. the purpose and character of the use; e.g., whether it is commercial in nature
You are using that phrase in a manuscript which you intend to sell and make a profit. [Insert case law to clarify exactly what this means]. So therefore this element doesn't look good for you.

2. the nature of the copyrighted work
This is a phrase from a movie which is theoretically 110 pages long. [Insert case law to clarify exactly what this means]. So therefore....

3. the proportion of the copyrighted work that was used (in both quantitative and
qualitative terms) and
This is a 3-word phrase from a 110 page movie script, but it is an important part of the movie [or the movie is known by that phrase, or 45 movies released in the past year use that phrase, or everyone on the street commonly uses that phrase, etc.] [Insert case law to clarify exactly what this means]. So therefore...

4. the economic impact of the use.
Your use of that phrase will/won't cause others to buy your work over the original work, etc. [Insert case law to clarify exactly what this means]. So therefore....

Overall, it would appear that your use of “as you wish” in this context may/may not be an infringement. In my professional opinion, you should/should not obtain permission. Etc etc etc ad nauseum.

FYI the simple fact that you attribute the use in the work [“this is from X movie....”] doesn't really help you. I doubt that if I quoted a chapter, or posted a summary, of Jeff Somers' book WRITING WITHOUT RULES, and attributed it to him, that I could get away with it, because he could argue that (1) people read my quotation/summary and therefore decided they didn't need to buy the book, so he lost money, or (2) people only bought my book because I used information from HIS book. [Point number 4 above].

The standard lawyer answer of “it depends”, which everyone likes to laugh at, really does apply. It really does depend on a LOT of facts,, many of which a layperson would never even think about. Every once in a while, the answer doesn't require much thought. But even something as simple as using “Cocky” in a book title can result in protracted [read: expensive] litigation, rather than a simple answer.

And even if it really is a simple answer, the main question I bring up to all of my clients is – you have a 99% [it's NEVER 100%] chance of winning this lawsuit, but it will be expensive to defend yourself if you're sued. Do you want to risk that?

DISCLAIMER: Nothing in this comment is meant as legal advice. If you really want/need legal advice, please consult with an attorney who is licensed in your state and practices in this area of law.

Now aren't you glad you asked??


RosannaM said...

Agh. My comment got eaten by pictures of traffic signals...

Interesting question and answer. I have a similar problem.

A few years ago, I wrote a YA time travel novel where my MC met someone who was well known in his field in the mid 80's. I gave this person a significant role including dialogue. Before I started, I had reached out to him and got a one line emailed reply, saying he would be delighted to meet my young time traveler. Since then I spoke with him briefly while he was clearly in the middle of doing something and he said he would call me back but never did.

Is this one line permission at all sufficient? I could change him to a totally fictional character with a lot of work and just refer to the MAIN MAN in passing. Anyone want to weigh in on this? Thanks in advance.

Craig F said...

This is all good to know. I have a character named Major Tom. He is the first to try a new model of spacecraft for my MC. We all know where that goes.

Carolynnwith2Ns said...

I LOVE to give advice. Love, legal, plumbing, electrical, I can even come up with wisdom regarding health and heaven. Am I right? Am I a trusted source regarding all things? HELL NO. But it sure is fun pretending to be a know-it-all.
But actually, there is ONE THING I am an expert on...when I figure out what it is I shall pontificate until the cows come home. They left five years ago:)

Julie Weathers said...

I've had this exact or maybe different question. I rely on a LOT of period journals, diaries, letters, memoirs, newspaper articles, military orders, etc. for research and pull out interesting quotes, sayings, phrases, tidbits. Sometimes a turn of word will fit just perfectly somewhere or with a particular character and then I scrounge around to see if this was something that was a common phrase of the time or something peculiar to that person. If it was peculiar to a certain person, am I plagiarizing them?

I went through this recently with a line. I liked it...a lot. Then I thought, "I'm pretty sure you didn't come up with that, Julie." I couldn't find the line anywhere online. I asked on the forum and no one was familiar with it. I feel like a fraud for leaving it in, but I did.

I don't know where the line of acceptable is. I think it keeps moving. In the OP's case, I would leave it.

Claire Bobrow said...

This makes me think of Ready Player One, but I blew through it so quickly I can't remember the specifics. While the author made extensive reference to 80's culture, I can't recall whether he also quoted popular catchphrases like "As you wish." Anyone...?

Amy Johnson said...

I'm reminded of a short story by John Updike. The message I took away from "Trust Me" when I read it years ago resurfaces in my mind from time to time--one of those things that can happen with a good story. People say "trust me" in a million different ways. If we do, and they end up being wrong, who pays the price? Oftentimes, not them.

John Davis Frain said...

Here's looking at you, OP. I'll go ahead and make your day.

Since love means never having to say you're sorry, don't apologize for loving someone's writing. When you can't find that someone else wrote the line, may the source be with you. Mama always said writing a manuscript is like a box of chocolates. You never know whose candy you're going to steal.

But you do what you want because frankly, OP, I don't give a hoot.

Lennon Faris said...

Ooh, this is a great question (and answer) - and Dena, thanks for your input as well.

My characters are geeky and (like I do in 'real' life), sometimes talk in geeky quotes. i.e. Someone asks if the m.c. ever discovered the meaning of life and she replies, "forty-two" before continuing on their conversation. I *think* based on this post that that is (most likely) OK.

Cecilia Ortiz Luna said...

To the OP (and Lennon)

Don't panic :)

JEN Garrett said...

Pop Culture by any other name...

I've often wondered how many of those references I see in movies needed a license, but realized the answer was probably none.

Look, have you written a good story? Do you have believable characters whom readers are thinking about a month after closing the book? Then an agent will pick it up, regardless of the references. If there are copyright issues, it's really a minor fix. If you don't believe me, read Ghosts by Raina Telgemeier and answer me this: What is Maya's favorite character song?

Holly C. said...

Hello Ms. Reid!
Would this advice apply to board games as well? Specifically one that has been around a long time that most people would recognize.
Thank you for all the industry info you continually share!

KDJames said...

Dena wrote: ". . . but it will be expensive to defend yourself if you're sued. Do you want to risk that?"

That would be the main consideration for me. Doesn't matter whether you "can" use something if someone decides to sue you, even if they lose the case. You might be in the clear with copyright, but what about trademark? Do a quick search for trademarked movie quotes and you'll find a whole lot of references to litigation. And appeals. And reversals.

Seems like the more quotes you use in a ms, the greater the chance of someone taking issue with one of them. Especially if your book makes a ton of money and/or gets a lot of publicity.

Who knows? I wouldn't risk it. Of course, I'm *just* arrogant enough to want to use my own words instead of relying on those of others. :)

Also, I'm not an attorney. This is not advice, legal or otherwise.

LynnRodz said...

Late again. *sigh* In my ms, the MC picks up a book by a popular French author, I don't mention the author's name or the title of the book. I just give a one sentence summary about the storyline. Neither book, nor author plays a role in my ms, but what happens when the MC leaves the book somewhere does, so I assume I'm safe. (Hmm, that story line, however, will let most people here in France know who I'm talking about.)