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Ask Author Law

Quoting from an actual letter

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Could you please give me an opinion on what is or is not plagiarism in fiction. For example, is it plagiarism to rewrite a letter in a fictionalized biography, so that the sense is the same as the original, but with very different wording, with original material added by the writer? In other words, how close does the prose have to be to fit the definition? Do you need permission in such a case, or is it enough simply to give credit?

A: You asked about plagiarism, but I’m also going to discuss infringement. All infringement is plagiarism, but all plagiarism is not necessarily infringement. Plagiarism is an academic concept regarding the failure to attribute the source of information or by misleading the reader as to the source. Infringement is the violation of a copyright. In cases of infringement, the issue is illegal copying, not attribution. You may be able to avoid charges of plagiarism by giving credit, but you need permission to use copyrighted work, except for very short quotes that constitute fair use. The situation you have described has the potential for both plagiarism and infringement.

There is no copyright protection for facts, so you’re free to fictionalize by inventing things based on the facts. The writer of a letter (published or unpublished) owns a copyright interest in the text of a letter, so you’re not free to make whatever use you wish of this other person’s work. The same legal guidelines would apply to quoting someone else’s copyrighted work in fiction as in nonfiction. Short quotes might be considered fair use, but I wouldn’t count on that.

Probably the safest way to handle this situation would be to paraphrase the actual letter and use indirect quotations. “I will love you until the end of my days and beyond,” a direct quote, could be handled like this: Mary expressed her feelings in a passionate letter to John, saying that she would love him until she dies. Even when paraphrasing, it is important to change the actual words enough to avoid repeating distinctive phrases.

I would not advise making up a fictional letter and using direct quotes from it. That strikes me as moving a step beyond making up fictional dialogue. Rewriting something does not necessarily protect you from charges of plagiarism or infringement. Such revision would certainly be considered improper by academic standards and I’m not sure how you would handle quoting from a fabricated letter without misleading the reader. Basing a fictional letter on an actual letter could also be copyright infringement, even when you change the words. So, for all these reasons, I would stick to paraphrasing an actual letter by describing its existence and the gist of its contents. If you must use direct quotes, make them short and quote from the actual letter, not a fictionalized version.

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