Get me copy.

One of the things I love about the Internet is the ability to click on a couple links and find myself at a site I never would have sought out on my own. Smart Bitches Trashy Books posts reviews of romance novels by a few self-described “smart bitches.” I don’t read romance novels, I’m not that smart and I do try not to be a bitch, so I never would have gone looking for this website. But a blogger with whom I share other interests linked me there, just in time to catch this discussion:

Apparently an author of historical romances has been exposed for having incorporated someone else’s material into her books. Her publisher stepped up to defend her by invoking the fair-use doctrine, which I remember well from my days as an intellectual property lawyer.

(Aside: it was always such fun to introduce myself as an intellectual property lawyer; people instantly assumed that I myself was intellectual, or at least pretentious.)

Anyway, in a nutshell, fair-use permits another to use copyrighted material for purposes such as scholarship, research, criticism, etc. The factors to be examined in determining whether use is fair include: (a) whether the use is for commercial or non-profit purposes; (b) the proportionate amount of the material used; and (c) whether the works would compete with each other in the marketplace. There’s no bright-line test, and the determination is always case-by-case and fact-specific.

Without having read any of the works in question, I can’t weigh in on whether the fair-use doctrine applies to this author’s work. But I’m struck by a couple of points raised in this discussion.

First, the publisher argues that “the fair-use doctrine permits reasonable borrowing and paraphrasing of another author’s words, especially for the purpose of creating something new and original.”

Dear Publisher: You should have cut that sentence off at the comma. Regardless of whether the “borrowing and paraphrasing” is permitted by law, there’s no way an author is creating something “new and original” when she’s using “another author’s words.” Sincerely, Bonnie.

But I think the Smart Bitches’ rejoinder misses the mark, too. The poster argues that regardless of the legalities, from an ethical standpoint, the author has done wrong.

I don’t think ethics has any place in a discussion of art or literature. Do we reject a novel because the circumstances of its creation were unethical? Imagine that Nabakov based Lolita on his real-life exploits with (and exploitation of) young girls. Unethical, illegal, disgusting, but Lolita would still be an original work of art. What if Mario Puzo gathered all his material by paying off mobsters who then used the money to import drugs? Probably unethical, but The Godfather is still worth reading. (Though perhaps not two dozen times, my darling husband.) Harriet Beecher Stowe gained fame and fortune on the backs of slaves, and Mark Twain used the N word repeatedly. What’s ethical and who decides?

The debate shouldn’t be about ethics so much as art. A plagiarized work isn’t art; it’s just a repackaging of someone else’s art.

Novel. The word means new.

People like to say that there haven’t been any original stories since Shakespeare or the Bible. Everything since then is just a retread.

I don’t agree. The themes might be familiar, but there’s plenty of space in the human imagination to create original characters and plots and settings to address those themes. There’s plenty of space for original ideas. And, of course, there’s infinite space to create original prose, and no excuse, ever, for borrowing someone else’s.