Archives for category: Copyright

Nate Hoffelder’s weekly links include this one to ArtNews telling us about a lawsuit in which a photographer is suing a tattoo artist for using his photo of Miles Davis as a tattoo.

The journey from photo to tattoo

The tattooist, Kat Von D, argues that the use is transformational, thus fair, and that there are bodily integrity and personal expression rights supporting her use of the photo. “Von D insists that her version is transformative of the original image. She created the tattoo by tracing Sedlik’s photograph on a lightbox and affixing the image to her client’s arm using a thermal copy machine and tattoo transfer fluid, before inking the design by hand.” Romano Law gives a balanced discussion of the issues. A jury will have to decide who’s right. To me it seems obvious that a tattoo cannot take the place of a photograph or damage demand for it — quite the opposite if anything. Still the law moves in mysterious ways.

Plagiarism Today reports on the verdict in another case which is concerned with the opposite direction of copying — here the tattooist sued a game company for reproducing her tattoo characters in their game. She won but “the jury opted not to award Alexander a share of the profits. Instead, they awarded her actual damages, totaling just $3,750 for the five tattoos at issue.” Not sure whether this has any relevance in the Miles Davis case.

This odd corner of the copyright world reminds me of my reproduction concerns in the case of the Gentileschi St Catherine picture, printed from a digital copy owned by The National Gallery in London. Obviously Gentileschi’s not protected by copyright, but if we were dealing with a modern work, would that make a difference? Surely it would, and here I’d want to believe that a freehand copy painted by a copy-artist would be more protected as fair use, whereas a print from a digital file would be a clear infringement. Would the hand-written copy of the Gutenberg Bible I speculated about (if we were dealing with a copyright work) not also be a copyright infringement? Presumably copying it out without any attempt to make your version look like the original, say for example by typing it including all its typos and following its page layout, would not be something copyright law would pay any attention to in the case of a Bible*, but for any other copyright work it would be a clear infringement as soon as you tried to sell it. The extreme case of copying here would of course be Xeroxing the book, which I think we all realize is not a good thing to do.

When I reported seven years ago on Tim Youd’s performance art, retyping novels, I didn’t consider the copyright position at all — I guess until he tries to sell the product it remains OK, as a copy made for his own personal use.

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* Though the Authorized Version of the Bible does remain in copyright in England, where it is covered by Crown copyright, and is published under license.

Artemisia Gentileschi (1593–c.1656) was a bit of a child prodigy: her earliest surviving work, Susanna and the Elders, was painted when she was seventeen. Her father was also a painter, and no doubt directed her early studies. She was the first woman to become a member of the Accademia di Arte del Disegno in Florence and developed an international clientele. Unusually she took a vigorous role in the breach-of-promise trial of her rapist, Agostino Tassi in 1611. Some suggest that her life provides plot features for George Eliot’s Romola. Her stock has risen in the last fifty years, and she’s now considered one of the most accomplished seventeenth-century artists.

An alumnus of St Catharine’s College recently donated to the college a reproduction of Artemisia Gentileschi’s self portrait as St Catherine. The “e” or the “a” in the name is not determinative: they both refer the same saintly person.*

The picture (the real one) hangs in the National Gallery in London, having been bought as they put it in the College newsletter The Wheel (duh!) in 2018 “with the support of the American Friends of the National Gallery, the National Gallery Trust Art Fund (through the legacy of Sir Denis Mahon), Lord and Lady Sassoon, Lady Getty, Hannah Rothschild CBE and other donors who wish to remain anonymous”. The reproduction, a “high-resolution print replica on canvas”, now hangs in the College chapel right above the altar where I observed it a couple of weeks ago.

The donor is quoted as saying “In a first for the National Gallery, the replica will be created by recording the painting in high resolution using the Gallery’s own image file and then reproducing the image on canvas. The National Gallery has also kindly agreed to create a replica of the 17th-century Florentine frame.”

My thoughts about this gift are not focussed on its price, though one assumes it was quite high — after all they threw in a frame too! What I wonder about is the reproduction process, which seems to have granted the object some greater respectability than a mere “copy” could have achieved. If you or I (assuming we had the skills) had taken up our paint brushes and painstakingly copied this painting, no matter how brilliant a job we had done, I suspect that it would be dismissed as a fake. (Or is a fake necessarily something you’ve tried to pass off as genuine?) What is the magic of a computer file that it can o’erleap such mundane concerns, achieve an authority greater than any highly skilled artist could command, and qualify as a big deal?

I have a piece of software called Camera Lucida. Using that software, which basically allows you to look through your iPad and copy what you see, you would get the proportions spot-on, and might well be able to trace the very brush strokes made by the original painter. Such a reproduction would seem to me a more valuable object than a copy printed from a digital file, though not as valuable as a good copy painted freehand.† Is the fact that they’ve never done this digital trick before relevant? Do they promise never to do it again with this painting? Or can St Catherine’s Oxford just come along and get one too? Or St Catherine University in St Paul, MN? I don’t beef at the donor, whose motivations are doubtless of the highest: I just wonder about the thing itself. And it is a handsome picture.

In a completely unrelated story we learn from Hyperallergic of plans to undrape the originally naked subject of Gentileschi’s Allegory of Inclination painted for the home of Michelangelo’s son in 1616. As art historians will do, this picture is also claimed as a self portrait, though who’d know? The drapery and veils were added around 1680 by Baldassarre Franceschini, known as il Volterrano, to soothe the moral concerns of a nephew of Michelangelo’s son. In order clearly to see what lies below the added drapery, investigators will use “advanced imaging techniques for restoration (diffuse and grazing light examination UV and infrared investigation; multispectral hypercolour imaging; X-ray and high-resolution reflectography), which will not only allow the acquisition of the technical and material information that will then guide the intervention on the painting, but also to virtually restore the original appearance of the Artemisia painting.” It seems that the painting itself will be left as shown, since physically to remove the paint added by il Volterrano would damage the image beneath, but it will be accompanied by a virtual, digital reproduction of the original original as painted by Ms Gentileschi. Is it something about Artemisia Gentileschi, or are all classic painters being given similarly sophisticated “advanced digital” treatment?

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* I always like to claim that the e/a difference is another Oxford/Cambridge thing. St Catherine’s College in Oxford has the “e”, though the local map I was given a couple of weeks ago spells it with the “a”. Cambridge has an “a”. However it isn’t an Oxon/Cantab thing. When you transliterate, you live in a world of inconsistency. The “e” is much commoner. The name can be spelled in various ways, even, obviously, with a “K”.

There are actually several Saints Catherine. The one we are looking at is Saint Catharine/Catherine of Alexandria, a somewhat shadowy personality from the fourth century. She it was who was broken on the wheel (whence Catherine wheel) — actually the wheel broke, as Ms Gentileschi shows, during the process and she was ultimately beheaded. She earned this fate because she had refused to marry the Emperor. regarding herself as the bride of Christ. There are also Saints Catherine Labouré, Caterina Volpicelli, Katharine Drexel, Catherine of Siena, of Genoa, of Bologna, of Ricci, of Sweden, and Saint Catherine Tekakwitha, the “lily of the Mohawks”.

Saint Catharine of Alexandria** is reputed to have debated successfully with fifty philosophers who tried to persuade her of the error of her Christianity. Because of her argumentative prowess she is regarded as patron saint of students, especially philosophy students, and of the clergy, young girls, and nurses, as well as, rather obviously, wheelwrights, spinners and millers. It’s a busy afterlife.

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† We appear to have settled on the view that an ebook is “worth” less than a printed book — that analog is worth more than digital in this context. Would anyone regard a digitized reproduction of Gutenberg’s Bible as anything other than a convenient reference? Nevertheless Book-io has apparently just sold 1,600 NFTs of this book at about $67 each (it’s priced in cryptocurrency so the price fluctuates).

I wonder if anyone has ever set out to reverse engineer the Gutenberg Bible — i.e. to copy it by hand. After all, Gutenberg’s aim was to make a book as nearly indistinguishable from a hand-written manuscript as possible. If someone had hand-scripted it, such an object would surely fetch more than $67 — though no doubt less than one of Gutenberg’s actual printed copies. We now have the ability to print a single copy of any book you care to name, and I doubt if printers are going to insist on seeing your title to the rights! The assigning of a value to such a “pirated” book will be interesting to watch.

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** The Feast of St Catharine on November 25 is somewhat obscured by Thanksgiving. It is celebrated by the consumption of Cattern cakes. Here, from the College’s website, is a recipe. You’ve got a few days left in which to bake some.

Cattern Cakes

Makes 8–10 cakes.

Ingredients

  • 275g self-raising flour 
  • ¼ tsp ground cinnamon
  • 25g currants 
  • 50g ground almonds 
  • 2 tsp caraway seeds 
  • 200g caster sugar, plus extra for sprinkling 
  • 100g butter, melted
  • 1 medium egg, beaten

Method

  • Preheat the oven to 190C/Fan 170C/Gas 5. Sift the flour and cinnamon into a large mixing bowl and add the currants, almonds, caraway seeds and sugar. 
  • Add the melted butter and beaten egg, and mix to form a soft dough. 
  • Roll out onto a floured surface to about 2cm thick and cut out rounds using an 85mm biscuit cutter, then lay them onto a piece of baking parchment on a baking tray. 
  • Take a knife with a sharp point and draw a swirl into the surface of the biscuit, then sprinkle on a little sugar. 
  • Bake for around 10 mins or until they are browned and slightly risen. Cool on a wire rack.

Can this really be true? It’s not the first of April, so here goes:

Volker Schroder reports to the SHARP listserv about a plagiarism plot.

Earlier this year the director of the Forensic Institute at Ludwig-Maximilians-Universität Munich was accused of plagiarism in his 1987 dissertation, which appeared to borrow heavily from a volume of English-language conference proceedings published in Romania and East Germany in 1982 and entitled “Colchicine – 100 years of research.” Two private “plagiarism hunters” (a profession much in demand these days) independently documented the allegations, which were picked up by various German media such as Süddeutsche Zeitung and Der Spiegel. Initially the inquiry relied on this PDF version of the conference volume:
https://plagiatsgutachten.com/blog/wp-content/uploads/2022/10/Colchicine_innen_300_dpi.pdf
One of the investigators then also managed to obtain a physical copy of the book from an eBay seller based in Serbia. No other copies are recorded in libraries or bibliographies.

It now turns out that these 1982 conference proceedings are a complete fabrication, elaborately reverse-engineered from the 1987 dissertation in order to support the plagiarism allegations and carry out what seems to be a revenge plot. There are further mysterious twists to this story, involving a deceased mother’s gold tooth and the use of colchicine for the treatment of covid-19… The latest account is in today’s Frankfurter Allgemeine Zeitung (paywall), supplemented by this chronology (free):
https://www.faz.net/aktuell/feuilleton/chronik-der-plagiats-intrige-gegen-matthias-graw-18395173.html

The duped plagiarism hunters are also posting updates on their blogs:
https://plagiatsgutachten.com/blog/
http://politplag.de/index.php?title=Hauptseite

Admittedly, a colchicine conference isn’t as spectacular as Galileo’s moon or the Hitler diaries, but perhaps it too will find its place in the annals of authorship and publishing!

Colchicine, derived the autumn crocus (Colchicum autumnale), has been used since as early as 1500 BC to treat joint swelling. It is recognized as a treatment for gout.

In response to a query about who might have pulled this complicated stunt Mr Schroder continues:

The two plagiarism investigators know who ordered the report and provided them with the alleged source, but their contracts don’t allow them to reveal his identity. However, today’s FAZ article includes various elements (though not a full name) pointing to a specific  person and to a possible motive – I suppose more details will emerge in the future.

Another clarification: it seems that at least 3 physical copies of the 1982 conference volume were produced and offered on eBay (all from the same seller) – they were bought by the two plagiarism hunters, as well as by the University of Hamburg (where the dissertation was completed in 1987) as part of the official inquiry into the allegations. It was the Hamburg committee that first concluded that the whole volume was fake.

One wonders:

Is there really a job title “private plagiarism hunter”?

What on earth did the victim do to the perpetrators that such an elaborate put-down was called for?

Is any of this actually criminal? Or is it libel, and just subject to civil action?

The existence of the conference proceedings volume intrigues me — I worked on a slew of them in my time. It’s one of the unexpected beauties of print-on-demand that you can afford to run off a few copies of a completely fake volume of conference papers. In the olden days it would have cost you a fortune to make a fake book like this. I guess there must be lots of other fascinating fake stuff lurking out there awaiting bibliographic discovery. I wonder if any ambitious academics have figured out this handy way of beefing up their publication list?

Comparison of the lines on the subject’s face in Lynn Goldsmith’s Prince photograph and Andy Warhol’s Prince series (via The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al, 2017)

These pictures come from a Hyperallergic article noting the start of a likely year-long Supreme Court consideration of the Prince picture bru-ha-ha. “At the crux of that debate is the question of whether Warhol’s visual style changed the meaning of the photograph Goldsmith shot. If it did, then Warhol’s use of the image could be covered by ‘fair use,’ a legal doctrine that lets artists use an artwork in order to make a different one — what is known as a ‘transformative’ purpose.”

It does seem relevant to me that Vanity Fair paid the photographer $400 for the right to use the picture, but I suppose it might be argued that that was a right to use it unaltered. Might it not be that much of the value of “art” like this resides in the presence of the signature of the artist? Still, no harm in spreading the wealth around.

Later: The New York Review of Books has a piece reporting on the start of this case in the Supreme Court. This is paywall protected after a few paragraphs.

Just because Senator Josh Hawley, pictured here urging on the rioters at the Capitol on 6 January, proposes it, do we really have to click our teeth at the idea that the period of copyright protection might be reduced to fifty-six years? Torrent Freak, always alert to matters of freedom, brings us the story. Nate Hoffelder, in transmitting the link says “so much for being the party of freedom, and free speech”. But isn’t this a bit of an illogical reaction? The Republican Party seems intent on changing its direction, as who can say they should not be allowed to. It has happened before. However free speech has no connection with copyright law, and certainly doesn’t depend on being able to prevent people quoting your work for ever and ever. If it is surprising this is surely because we normally do not look to today’s party of “No” for any new ideas. The idea here seems to be to stick it to “woke” companies especially Disney — Disney? Woke? Wow!

But isn’t the period of copyright protection in fact too long now? Well, of course it is. As I’ve often asserted the length of copyright protection in America depends in large part on the life span of Mickey Mouse, i.e. the wishes of Disney. As Mickey ages Disney needs a longer and longer term of copyright — and they tend to be able to get it out of Congress. We should welcome discussion of this matter even when it’s called for by someone we may disapprove of — the current situation is far from perfect. Unlike Sen. Hawley, I don’t see any reason to punish Disney — indeed I’ve often proposed that corporations should be granted a longer term of copyright for works which cost millions of dollars to develop, whereas books, which can be written for a good deal less, might become public property much more quickly than they are currently allowed to. After all the original purpose of copyright was to encourage writers to provide information and knowledge to us — entertainment wasn’t much of a thing back then. So let’s encourage. Lifetime of the author? After all when the author’s gone no amount of encouragement’s going to make any difference. Where the author’s a corporation, lifetime clearly won’t work — 100 years if it cost over a million dollars to create? 50 if less?

See also Term of Copyright.

The New Publishing Standard tells us that Pearson is planning to use NFT technology to counter piracy (reselling) of their digital textbooks. Mark Williams writes that Pearson reckon that their print textbooks are re-sold seven times on average, and with the digital version “sharing” is probably even easier. By hiding their digital offerings behind blockchain technology, Pearson hope to be able to “participate” in every sale throughout the life of the book.

What is at work here is the doctrine of “first sale” which comes up as a consequence of the law of copyright or patents. When a bit of intellectual property has been sold once, the holder of the copyright no longer has any claim for reward from any further resale. Nobody gets a royalty on the sale of a second-hand book. This is also referred to as copyright exhaustion. Digital books don’t get into “first sale” territory by never being subject to sale: you don’t buy an ebook; you buy access to an ebook file. You can’t in theory resell that access.

Making a textbook available only in digital form and making that digital form protected by blockchain sounds like it should be water-tight, though I’m not sure how it all works. But we have of course all internalized the mantra that hackers can always hack around anything, but I wonder if hacking is even the main problem. Isn’t it possible to share an NFT — if you spend millions on some digital artwork masterpiece don’t you need to be able to allow envious fellow millionaires to view it so that they can see your art collecting taste and power? Does this not mean that textbook publishers need to take their customers along with them if they are going to control after-sales of their digital textbooks? If I buy my NFT textbook and then just give it to my cousin when I’m done with it, sending them the key to the blockchain, doesn’t that mean that they’ll be able to access it all themselves? The problem is not building a better lock or even a fool-proof key. The problem is making sure your customers don’t leave the key in the lock when they abandon the house. I wonder if NFT technology overcomes this problem.

I can’t help thinking that including the cost of the textbook in the university’s fee for the course is the most secure way to proceed. As long as you know that every student is going to “buy” the textbook, you as publisher should be unconcerned about how many loose copies there are out there. Of course this would require cooperation from the colleges.

Mr Williams also brings us a link to DigitalStudioMe, where we are informed that Samsung are “all set to launch a TV that incorporates an NFT marketplace for consumers to browse, buy and sell art”.

Years ago, in order for a book written by a U.S. citizen to acquire copyright protection in the USA, it had to be manufactured in the USA. There was an exception made which allowed you to import less than 1,500 copies in five years, as long as the book included the proper U.S. copyright notice. For a British publisher operating in America and soliciting work from American authors this effectively meant you had to have a production department — because who’s going to say to their authors, “Don’t worry, we’ll never sell as many as 1,500 copies* of your boring book”? And this was why I was banished to the colonies in 1974. In those days one would have a relationship with the customs broker at the Port of New York — they needed to go in and check the copyright notice, and quantities of your imports. Everything moved more slowly then.

Now, it came to pass that in the winter of 1973-74 there was a coal miner’s strike in Britain, against the government of Edward Heath. The strike was ultimately successful. No coal meant no electricity, and no electricity meant that printers (and others) were only allowed to work during daylight hours, which in wintertime didn’t last too long. Backlogs developed. Our Production Director in Cambridge had the bright idea of relieving the situation by sending one or two manuscripts to America for typesetting, and it was one of the books I was handling that became the first test of the plan, a large anthropological monograph for which I was also editor. I got the manuscript back from the University Printing House where they had started work to the extent of having created matrices for the special sorts needed for the job. These they sent along with the manuscript and for a few years I’d wear them on a leather thong around my neck as an expression of letterpress hippiedom.

I sent the job off to our New York office. A couple of months later I was myself transferred to New York, where I found the gigantic manuscript languishing on my desk. My predecessor, even more laid-back than me, said he hadn’t bothered to do anything about it during the six or so weeks that he’d had it because “they all do everything so fast over here, that nobody in Cambridge will notice the delay”. And nor did they.

It wasn’t until the copyright act of 1976 that the USA really entered wholeheartedly into the worldwide copyright community. At this time copyright ceased to be an acquired right hedged around with lots of conditions, and became an automatic right, something which inhered in the work simply by virtue of its existence in fixed form.

By the time the law changed, fortunately for me, our manufacturing, and typesetting, in America had become much more frequent — and usually — rather cheaper, so my life continued unchanged despite the copyright-law justification for my existence having been removed. As the editorial effort in New York gathered momentum, we quickly went from manufacturing half a dozen books a year to more than a hundred.

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* In those days 1,500 was about the smallest number an academic publisher would ever think of printing. There were just fewer titles, and libraries were eager in the waning years of the post WWII boom to stock up their shelves. Now that we are accustomed to academic books printing in quantities below 500, and such a manufacturing clause would be less of an issue foreign publishers in America.

This legal interlude, fantasizing about library terms of supply, all provided a nice little flurry of fun. And now it’s over.

Publishers Weekly reports on the end of Association of American Publishers’ lawsuit against the State of Maryland about their law attempting to force publishers to sell ebooks to libraries at discounted prices. The judge decided not to bother to issue an injunction forbidding Maryland from doing this: that the “State never enforced the law and represents it will not enforce it in the future is an important factor bearing on whether the Court should take the additional step to enjoin the State from enforcing the Act. The Court has declared the Maryland Act unconstitutional and may reasonably assume the State will abide by the declaration.” I suppose if the State changes its mind and really tries to make publishers sell ebooks cheaply to libraries, an injunction can easily be obtained.

Now the court has ruled in favor of the AAP, indicating that Maryland, or any state, cannot just decide to override laws passed by Congress — in this case the copyright law — one can perhaps imagine that this would be the end of such legislation. But as Publishers Weekly told us in February “Library e-book bills are now pending in five state legislatures, MassachusettsRhode Island, IllinoisTennessee, and Missouri, and such bills have already passed unanimously in Maryland and New York.” Subsequently Connecticut joined the queue. The Governor of New York already vetoed that bill, and I don’t know where the other states stand, as well as any others who may have found the ebook bandwagon irresistible, but basic equity seems pretty clear. Prices are determined by the seller: if you don’t like it, don’t buy it.

Now of course you can see why legislators would favor bills like this, whatever their chances of success. Makes them look like they are sticking up for the rights of their constituents without much chance of their having to do anything about it. But to me, any law or lawsuit based upon the words “reasonable prices” must be doomed: one man’s reasonable is another man’s exorbitant, is another man’s way too cheap. Pricing of ebooks for libraries still remains in flux: it hasn’t been all that many years after all. A solution needs to be negotiated not litigated or legislated or enforced. If librarians want their customers to be able to borrow ebooks, then the price they pay for them has (obviously) got to be a price publishers and authors are willing to receive. You can’t in any price negotiation say “This is ridiculous, I refuse to pay more than this much”. Well of course you can, but you have to expect your negotiating partner to walk away from the table, which just leaves you high and dry.

Let us take for an instant the extreme position — how damaging to the world would it actually be if ebooks could not be borrowed from libraries at all? To publishers? Not a bit: or if at all, very little. After all, the publisher would in theory rather that every reader should buy their own copy (even of a printed book — though of course everyone has bought in on the social desirability of a library system where barriers to reading are at least not financial). To authors? Maybe a little: it’s always nice to have another reader, even one who’s a non-buyer. To libraries? Maybe a bit annoying, especially if many people protest and start bending the librarian’s ear. To readers and library users? It’s just a matter of money. If I have to pay, will I nevertheless still read? Well of course that depends — and there always remains the free physical library book as an option. But in no way does the world as we know it cease to function if I can’t get a free ebook from the library. I am not advocating such a position. Nor is the publishing industry even thinking of such a thing, although it might reduce tensions between publishers and an important market segment.

Bite your tongue ye commentators, and be patient: a pricing solution will be reached. Surely it’s obvious that futile lawsuits are not a great way to win friends and influence your suppliers. I’m no lawyer, and have to assume that lawyers must have advised all these states that there’s some ground for proceeding, mustn’t they? — but just what ground that is I’ve no idea. Just because I wrote a book and people would like to read it for free, why must I be made to supply it at a cheap price to my local library? This doesn’t seem to me any more reasonable than that because eating is important to the public, farmers should be required to sell meat and milk at discounted prices. Now of course we have to recognize, yet again, that this “movement” is all based upon the erroneous “common knowledge” that ebooks cost nothing to produce! THEY DON’T.

In Libraries and ebooks I previously beat the drum of getting ebooks out of the library and having publishers “rent” them to readers.

See also Mandatory ebook licenses for libraries?.

If you hit Command C and copy someone else’s words, then paste them, and go through the quote and edit it into “your own words”, are you in fact indulging in plagiarism? PlagiarismToday says yes in their post “Why you can’t make someone else’s words your own”. Jonathan Bailey has devised a procedure called Cleanroom which is designed to help writers avoid plagiarism. Given that the main edict is “don’t copy and paste” this might seem a bit circular. Mr Bailey’s point about avoiding copying and pasting is that it’s copying not writing. OK. More importantly, more riskily, if you do a lot of it you will almost inevitably miss changing some of your pastings into “your own words”. These sentences, even if you do remember to edit them, will of course not really be “your own words” — they are someone else’s thoughts, disguised so they can pass as your own.

Notwithstanding, I have to confess to doing this from time to time. I do believe that what I copy and edit are always fairly short bits: maybe a full sentence. I believe that I do it so that I won’t get the argument wrong more than just to reproduce the thought. I think (and hope) that my editing is always pretty extensive. Oftentimes, if it just looks like it’ll be too much of a hassle to change it all, I do enclose the resultant paste in quotation marks, and attribute it — which is obviously the “right” thing to do.

Copy and paste is almost certainly what led to a steady increase in the length of manuscripts submitted to publishers (at least to academic publishers) towards the end of the last century. In the olden days if you added a couple of sentences in the middle of Chapter Three, then you had to retype the entire chapter to accommodate the insertion: one would try to make a balancing deletion in order to avoid having to retype the whole damn thing. As soon as we got word processors we could shunt paragraphs around and add lots of second thoughts without any need to delete first ones. First thoughts plus second thoughts equal longer books.

We all get drilled into our heads that copyright protects not ideas, but the expression of ideas. You can’t copyright the thought “ideas can’t be copyrighted”, but as soon as I write it out in this sentence, this way of saying it is now protected by copyright — well, that might be just too general, generic, a statement for copyright to come into play, but if I dressed it up a bit more “uniquely” with some fancy adjectives and qualifiers it would be protectable. Or to put it differently but more accurately, the sentence as it stands would theoretically be protected by copyright but the value of that protection might be $0.

Via Nate Hoffelder’s Weekly News Brief comes this link to Nolo‘s account about how it is that characters can become copyrightable. Just try writing a novel featuring a suave British spy called James Bond. “Fictional characters can, under U.S. law, be protected separately from their underlying works. This is based on the legal theory of derivative copyrights. To obtain this type of protection, a creator must prove that the characters are sufficiently unique and distinctive to merit this protection.”

Derivative works include prominently fan fictions. In my 2015 fan fic post I claimed wrongly that characters could not be protected by copyright. They can be if they are really well known, but in many instances authors don’t bother to sue because the law isn’t clear, and getting a judge to judge is always an expensive proposition. So fan fics for instance thrive on putting favorite characters into novel situations, and authors mostly regard this as almost a form of marketing for their own books.

See also Herlock Sholmès and the case of the curious © claim.