Fiction vs. Copyright

September 25, 2006 11:41 AM

Enrique Vila-Matas is an author known by using other author's quotations into his own fiction books. Bartleby & Co. and El mal de Montano quote dozens of works by other authors. How can he do this, legally?

He also presents fake quotes by other authors. He can say that Shakespeare wrote something, when in reality it didn't. Again, how can he do this, legally?

Also, can I write in my own fiction book, that I met Enrique Vila-Matas, when this is not true in reality, or can I have legal problems because of this?

posted by dfreire to Writing & Language (2 answers total)

Best answer: This applies to the USA only.

For quotes whose original source is before 1923, they are public domain. For quotes whose original source is after 1923, it's "fair use", which allows him to use short excerpts:

17 USC § 107. Limitations on exclusive rights: Fair use:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a 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.

Let's focuson 3 and 4 because 1 and 2 don't matter here. You can see that (3), the amount is very insubstantial, and in 4, Matas use will not likely affect at all the potential market for the original source of the quote. So fair use applies, and he can use it.

Also, to the extent that a quote is something an author said, like a statement in an interview, for example, therei is a question as to whether that is "a work of authorship" under the statute.

Fake quotes by authors is also fine in a work that is clearly fictional, because the use in the novel is not purely commercial (it's not a fake blurb on the back praising the book).

Generally speaking, their is not right to your own name. So basically, he can do it because no law says that he can't. It's not libel or slander because the book is a work of fiction and does not purport to be the truth.

Yes, you can write your ownbook with him as a character
posted by Pastabagel at 12:14 PM on September 25, 2006

Best answer: What pastabagel said in regards to quoting. Within copyright law (and I believe the U.S. copyright statutes have been written to be compatable with international treaty arrangements) you have a limited right to quote the work of other people. In practice however, this is basically, "until someone else objects" since paying legal fees to defend this right can sometimes be more than its worth.

In regards to dropping names or fictionalizing actual people, you can be sued for libel in fiction (another analysis) but the standard appears to be set pretty darn high. The plaintif must show "publication, defamatory meaning, false statement, identification and damages." (from the second link)

Of course, you can't libel the dead. So you can claim all kinds of weird things that Shakespeare might have said or written. The worst that can happen is people will accuse you of playing fast and loose with the facts. Then again, how many millions has Dan Brown made on The DaVinci Code?
posted by KirkJobSluder at 2:06 PM on September 25, 2006