# Copyright/Intertextuality question.
**URL:** https://boards.straightdope.com/t/copyright-intertextuality-question/175287
**Category:** Factual Questions
**Created:** [May 14, 2003, 10:44pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287 "2003-05-14T22:44:53Z")
**Posts on this page:** 17
**Page:** 1
### Author:  [@Larry\_Mudd](https://boards.straightdope.com/u/Larry_Mudd)
#### Post date: [May 14, 2003, 10:44pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/1 "2003-05-14T22:44:53Z")
Would it be kosher to put lines from Gertrude Stein’s c. 1935 work into the mouth of a character in a novel without attribution?
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [May 14, 2003, 11:32pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/2 "2003-05-14T23:32:15Z")
Depends on the number of lines, but if you’re just quoting a line or two, then it should be covered by fair use.
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### Author:  [@Peg](https://boards.straightdope.com/u/Peg)
#### Post date: [May 15, 2003, 12:08am UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/3 "2003-05-15T00:08:33Z")
I think fair use would ask that you attribute the quote.
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [May 15, 2003, 12:21am UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/4 "2003-05-15T00:21:08Z")
Not necessarily. If a character said, “A rose is a rose is a rose,” you wouldn’t have to attribute it.
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### Author:  [@Larry\_Mudd](https://boards.straightdope.com/u/Larry_Mudd)
#### Post date: [May 15, 2003, 2:02am UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/5 "2003-05-15T02:02:11Z")
I guess some context would be helpful. The principal names in _Listen to Me_ are serendipitously similar those of two of my principal characters, and there are other accidental overlaps.
There’s a sort of bizarre sibylline character in the form of a schizophrenic, heroin-addicted woman who occassionally appears to rant at the other characters. Parts of _Listen to Me_ would fit in well with her. It’s important for it to superficially appear to be random muttering, so it couldn’t really be attributed. About six lines from different parts of the play, maybe paraphrased. Stuff along the lines of “Sweet William had his genius.” “Need is not more cared for than needles,” “They’re so careless with their luggage,” “No Lillian for Sweet William.” “All the world is covered over with people.” “Nobody knows what anybody looks like.” “Any light is bigger than the moon.”
That sort of thing. The woman has some obsessions around _stone_, too, so I like the idea of her surreptitiously quoting _Stein_.
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### Author:  [@Larry\_Mudd](https://boards.straightdope.com/u/Larry_Mudd)
#### Post date: [May 15, 2003, 2:04am UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/6 "2003-05-15T02:04:13Z")
…serendipitously similar _to_ those of two…
And I want to write a book. God help me.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [May 15, 2003, 2:41am UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/7 "2003-05-15T02:41:54Z")
Sounds like homage to me. And the reviewers who get it will think you’re a genius for making them feel smart.
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### Author:  [@Tusculan](https://boards.straightdope.com/u/Tusculan)
#### Post date: [May 15, 2003, 6:17am UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/8 "2003-05-15T06:17:02Z")
Well, what I often see done is that at the end or beginning of the book there is a page ‘Acknowledgments’, where the writer says:
‘The poem on page X recited by Bzzzt is ‘After eating a burnt dinner’ by DiedTooYoung’ or so. By adding a page like that, you ensure that you are free from charges of plagiarism. The thing is, even with small quotes that are allowed by way of copyright law, some people might otherwise get the mistaken impression that you were trying to pass off someone else’s words as your own. A Shakespeare quote is different since that has become part of the language and is of well-known authorship.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [May 15, 2003, 12:26pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/9 "2003-05-15T12:26:46Z")
Totally different cases, **TTT**.
In the US, those acknowledgments are almost always there because the poem is copyrighted and permission to use has to be granted. There are usually fair use issues connected with poems because they are normally so short.
And what **Larry Mudd** wants to do is different from quoting a coherent block of a work.
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [May 15, 2003, 12:38pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/10 "2003-05-15T12:38:20Z")
I wouldn’t think six lines out of the entire play would be a problem with fair use, especially if it were paraphrased. Go for it.
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### Author:  [@Tusculan](https://boards.straightdope.com/u/Tusculan)
#### Post date: [May 15, 2003, 4:50pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/11 "2003-05-15T16:50:32Z")
**Exapno** , while I see that I may have phrased it in a potentially misleading manner, I was adding on the presumption of the quote being covered under fair use. My mentioning a poem was indeed a bad example, and I should have added (to avoid mistakes) that acknowledgments may (are?) mostly be done for copyright reasons.
But the case is that the OP mentioned ‘lines’, which does fall under fair use if it is small, and this is what the other posters assumed. I wanted to add that even _if_ it is covered under fair use, I would _still_ recommend to attribute the quote to defuse allegations of plagiarism. But again, I should have put it in a less misleading way.
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### Author:  [@Robb](https://boards.straightdope.com/u/Robb)
#### Post date: [May 15, 2003, 5:10pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/12 "2003-05-15T17:10:41Z")
Why is anyone beginning this analysis with Fair Use? It seems to me that copying six sentences from a play is not reproducing the copyrighted work in copies. _See_ [17 U.S.C. 106](http://www4.law.cornell.edu/uscode/17/106.html) If it doesn’t infringe a copyright, then there is no need to resort to Fair Use.
Are those of you applying Fair Use convinced that the OP posits copyright infringement? If so, could you provide me with citations to copyrihgt cases were a few lines from a play was adjudged an infringing activity?
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### Author:  [@Larry\_Mudd](https://boards.straightdope.com/u/Larry_Mudd)
#### Post date: [May 15, 2003, 5:48pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/13 "2003-05-15T17:48:00Z")
Thanks for your input everybody. Thanks especially for the link, **Robb**.
I’m no lawyer, but the language in section 107 is pretty reassuring-- “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include […] the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and […] the effect of the use upon the potential market for or value of the copyrighted work.”
Seems like no worries. Thanks all!
(Now I have to track down a copy of the text-- The only form I’ve been exposed to it in is somebody else’s adaptation for the BBC.)
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### Author:  [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)
#### Post date: [May 15, 2003, 6:50pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/14 "2003-05-15T18:50:12Z")
> [@](#):
>
> \*Originally posted by Robb \*
> \*\*Why is anyone beginning this analysis with Fair Use? It seems to me that copying six sentences from a play is not reproducing the copyrighted work in copies. _See_ [17 U.S.C. 106](http://www4.law.cornell.edu/uscode/17/106.html) If it doesn’t infringe a copyright, then there is no need to resort to Fair Use.
>
> Are those of you applying Fair Use convinced that the OP posits copyright infringement? If so, could you provide me with citations to copyrihgt cases were a few lines from a play was adjudged an infringing activity? \*\*
Without bothering to get caselaw, I would say that limited copying is an infringement for at least two reasons:
(1) it would make section 3 of 107 (“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”) meaningless. If only a 100% copy was infringement, why have section 3?
(2) even if it is not an infringement of section 1 of 106 (“reproduce the copyrighted work”), then it is probably an infringement of section 2 of 106 (“prepare derivative works based upon the copyrighted work”). Either way, it is a violation of 106 and copyright infringement and requires fair use in 107 to bail you out.
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### Author:  [@Robb](https://boards.straightdope.com/u/Robb)
#### Post date: [May 15, 2003, 7:20pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/15 "2003-05-15T19:20:37Z")
I think you should bother with caselaw. Fair Use doctrine was codified after Section 106 - I don’t see how enacting 107 suddenly kicked the threshold for 106(a) up to protecting every single sentence of a work, and I don’t remember learning that any copying from a large work was an infringement of the copyrighted work. More importantly, Section 106 involves asking the question, Is there an infringement? then Section 107 asks, Is that infringement excused? You conflate them by suggesting an excuse for infringement informs the analysis of whether an infringement even occurred. It’s something akin to claiming self-defense before finding out whether there is a dead body.
As far as it being a derivative work, you are simply carrying through your mistake from point (1). Those six sentences are not likely the copyrighted work. Consider this from the [Notes](http://www4.law.cornell.edu/uscode/17/106.notes.html) to Section 106,
> [@](#):
>
> To be an infringement the ‘‘derivative work’’ must be ‘‘based upon the copyrighted work,’’ and the definition in section 101 refers to ‘‘a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.’’
The OP does not posit a work based on the play - only that one character would spout words from the play.
If you are convinced that copying six sentences out of a play is an infringment, you could likely find similar enough court decisions to make a persuasive argument.
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### Author:  [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)
#### Post date: [May 15, 2003, 7:57pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/16 "2003-05-15T19:57:13Z")
> [@](#):
>
> _Originally posted by Robb \*
> \*\* I think you should bother with caselaw_\*
Actually, I think **you** should bother with caselaw. If you want to say everyone on the thread is wrong, how about backing it up with a cite or two.
My prediction is that you will not be able to find a single higher court case that finds limited copying does not rise to the level of infringement under 106, making 107 analysis unecessary. Not one. Perhaps you might be able to find some oddball lower court case or two that says something to that effect, but I have my doubts.
The great, great bulk of cases will simply assume a 106 violation and launch into a 107 analysis.
I wait eagerly for your research results.
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### Author:  [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)
#### Post date: [May 15, 2003, 8:23pm UTC](https://boards.straightdope.com/t/copyright-intertextuality-question/175287/17 "2003-05-15T20:23:23Z")
what the heck. I did a quick google search and found an article on point here [http://cyber.law.harvard.edu/property/respect/winickexcerpt.html](http://cyber.law.harvard.edu/property/respect/winickexcerpt.html)
> [@](#):
>
> However, even if the second work incorporates relatively small portions of the original, the works may still be considered substantially similar. For example, many of the above-mentioned methods of altering images involve verbatim copying of small portions of an image, which can fit into the category of infringement articulated as “fragmented literal similarity.” [FN49] Fragmented literal similarity involves situations in which a small portion of the original is copied in its entirety into a second work. [FN50] For example, cloning and combining elements from one image into another image requires verbatim copying of those elements of the original and therefore involves fragmented literal similarity.
>
> It is very difficult to set forth definitive rules for the particular quantity of fragmented literal similarity necessary to constitute an infringement. However, cases involving the digital sampling of musical works provide some guidance. In these cases, courts have held that songs that incorporated short digital “samples” of previous songs constituted copyright infringement through fragmented literal similarity, even if those digital samples constituted relatively small portions of the respective works. [FN51] These cases represent an application of the existing principle of copyright law that “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” [FN52] Even if the second artist takes only a quantitatively small amount of material, it may still be considered qualitatively important to the original.[FN53]
> …
> …
> …
>
> FN49. NIMMER, supra note 46, s 13.03[A]; Twin Peaks Prods., Inc. v. Publications, Int’l, Ltd., 996 F.2d 1366, 1372 (2d Cir. 1993).
>
> FN50. NIMMER, supra note 46, s 13.03[A][2].
>
> FN51. See Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F.Supp. 182 (S.D.N.Y. 1991); Jarvis v. A&M Records, 827 F.Supp. 282, 289 (D.N.J. 1993); Tin Pan Apple Inc. v. Miller Brewing Co., 30 U.S.P.Q.2d 1791, 1795 (S.D.N.Y. 1994); Frost Belt Int’l Recording v. Cold Chillin’ Records, 758 F.Supp. 131 (S.D.N.Y. 1990).
>
> FN52. Sheldon, 81 F.2d at 56 (Hand, J.).
>
> FN53. See Roy Export Co. v. CBS, Inc., 672 F.2d 1095 (one minute segment of film substantially similar); see also supra note 48.
I’m such a nice guy. I even gave you a starting point to do your research.