Signet's announcement that they have parted ways with Cassie Edwards is bound to stir up a new wave of controversy in the romance community. But that's okay because we love our controversy like our sex. The hotter the better.

I'm not in favor of using the internet for personal attacks. I'm an attorney by training and I don't like to see someone convicted without a trail. I do think there is enough evidence in this case to make a strong argument that the books in question did cross the line into plagiarism. You can see an excellent summary of possible instances of plagiarism compiled on the Smart Bitches Trashy Books blog.

Actually, I don't think there is any controversy about that part. The copying is too obvious. The controversy seems to be about Cassie Edwards intent. Did she mean to plagiarize? Was she taking an intellectual shortcut? Did she simply misunderstand the concept of fair use? These are the questions I'd like to address by pointing out that it doesn't matter.

There is no intent requirement in our copyright laws. The basic law is simple--an original work is is protected by copyright the moment it is set in a tangible medium of expression. This blog post is protected by copyright. An article in a magazine is protected by copyright. A novel is protected by copyright. Song lyrics you hear on the radio or a haiku written on a bathroom stall are all protected by copyright. Copying any of these things, or even copying a small part of them is infringement.

Fair Use is a defense to a claim of infringement. This is a misunderstood concept. To quote the explanation on the Copyright Office Website:

"Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians."

Fair use is very limited. Notice that works of fiction are not on the list of purposes for which the fair use defense was created. Fair use is for "commentary, criticism, news reporting, and scholarly reports." That said, we know that novelists do research and they do include facts from their research in their novels. Is that copyright infringement? No. Facts are not protected by copyright. A fact is not "an original work". The problem of copyright infringement arises when the novelist goes from including facts in her work to copying the expression of those facts from her sources.

It is easy to make a mistake. We are all subject to having a clever line or interesting way of putting something stick in our heads. We may unintentionally copy something that we read during our research or even a line from a novel we've read or a song we heard. With some care we should be able to avoid this sort of accidental copying. Take careful notes so that you can go back and check that you haven't copied the expression in another work. Even if unintentional, the copying is still infringement! A court will, however, take into account the innocent nature of the copying when assigning damages.

The more serious concern is the confusion about fair use. We can all avoid mistaking what is "fair use". A good rule of thumb is this: if you're using it in a novel it almost certainly is not fair use. That should be pretty easy to remember.