Christine's Note: This is a guest post by Kathryn Goldman, a lawyer who represents writers, artists, and businesses to protect their intellectual property. Check out Kathryn's free ebook, Rip-Off Protection Report for Creative Professionals. [Her article below is written to give us an idea of how to be thoughtful about intellectual property and the law when we write our stories, and is not legal advice.]
Three Ways that the Creative Works of Others Appear in TFIOS
- Discussing Movies:
- Augustus tells Hazel Grace that she looks like Natalie Portman in “V” for Vendetta. (Chs. 1 & 2). It’s a real movie made in Hollywood with real movie stars. And Hazel Grace watches it. In fact, Hazel and Gus watch the movie together a few times in TFIOS. (Ch. 2).
- Another movie that Hazel and Gus watch together is 300, also a real movie created in Hollywood. (Ch. 10).
- Reciting Poetry: Some poems in TFIOS are quoted completely or almost completely:
- The Red Wheelbarrow by William Carlos Williams (Ch. 18) – the whole poem appears.
- A poem that goes unnamed in the book but is actually The Love Song of J. Alfred Prufrock by T.S. Eliot (Ch. 10) – Hazel recites the first full stanza.
- Also unnamed is the poem Thirteen Ways of Looking at a Blackbird by Wallace Stevens (Ch. 12). Green uses the fifth stanza out of 13.
- Repurposing a Line from a Poem:
- The title of An Imperial Affliction comes from an Emily Dickinson poem called There’s a certain Slant of light. John Green tells us that Hazel Grace reads the poem to Gus over the phone (Ch. 5). But only three words of the poem ever appear in TFIOS. Those words are “An Imperial Affliction” – nothing more from the poem.
The rules for using other peoples’ creative work (copyrighted work) are different from the rules for using other peoples’ brand names (trademarks). Here’s why John Green used the creative works of others the way he did.
1. Discussing Real Movies
Let’s start with the movies first. Copyright law does not protect names, titles, or short phrases or expressions. So, the title of the movies made in Hollywood can be used in the story.
Most movie titles aren’t protected by trademark law, either. Generally, only series titles like Harry Potter or The Twilight Saga can be registered trademarks. Instead, Hollywood has its own title registration service through the Motion Picture Association of America. But that system has nothing to do with your novel.
It’s perfectly acceptable for Hazel and Gus to watch “V” for Vendetta or 300 then have a conversation about what they’ve seen, even to joke about or make fun of the movies.
2. Reciting Poetry
Hazel Grace recites long sections of two of poems in TFIOS. Both poems are in the public domain. The Redwheel Barrow was published in 1883 and The Love Song of J. Alfred Prufrock was published in 1915. Today, all works first published in the United States before 1923 are in the public domain.
TIP: Any work that is in the public domain can be quoted in your story. You do not even need to give attribution.
The Wallace Stevens poem, Thirteen Ways of Looking at a Blackbird, was published in 1954 in a collection of his poems and as early as 1951 as the words to a song. It was registered with the copyright office and the registration was properly renewed. Any work published between 1923 and 1963 with a renewed registration is still protected by copyright law.
If the Wallace Stevens poem is still protected by copyright, how can John Green quote from it in TFIOS?
There are two possible answers to this question.
- First, John Green probably asked for permission to reprint a portion of the poem. My copy of the book does not mention anywhere that permission was granted. But I suspect this is what happened because TFIOS is published by Penguin and the Stevens poem by Random House which are now the same company.
- The second possible answer is that John Green (and his publishers) may have decided that the portion of the poem that was used is small enough that using it is considered fair use.
Fair use is a defense to copyright infringement and it is a pretty slippery concept. There is no mathematical formula to determine how much is too much of someone else’s work you can use before you’ve infringed their copyright. However, fair use is an unlikely answer to why John Green used a stanza of the Wallace poem in TFIOS. There is no transformation, Hazel just quotes it.
3. Repurposing An Imperial Affliction
But, the fair use concept is getting stronger these days, especially when the use of the protected work is transformative.
Transformative use means to repurpose and add value to the work protected by copyright. If your use of a protected work is transformative, you may be able to incorporate into your own work.
It is likely that fair use is why John Green used “An Imperial Affliction” as the title of Hazel’s favorite book. This is the title of the book written by the character Peter Van Houten, and is a line out of the Emily Dickinson poem There’s a certain Slant of light.
Emily Dickinson died in 1886. If you thought that anything written by Emily Dickenson must be in the public domain just based on when she died, you would be wrong. Almost all of Emily Dickinson’s poems were published after she died. Her poem There’s a certain Slant of light is still protected by copyright.
In order to use the line of the poem, John Green either needed permission (Harvard University controls the Dickinson collection), or the use of the line “an imperial affliction” must be considered fair use.
The way he uses “an imperial affliction” is transformative. John Green has turned a single line from a poem into a book, a fictional book, but a book nevertheless. The book becomes a character in TFIOS. It has enormous power over Hazel. It defines her. It controls her. It helps her live.
Even after Hazel and Gus meet Van Houten, who turns out to be a despicable character, Hazel is driven to learn the unwritten end of the story in “An Imperial Affliction.”
John Green has taken a small piece of the poem and given it a life in TFIOS that it did not have in the poem.
The line “an imperial affliction” is not the heart and soul of the poem, but in John Green’s hands it becomes part of Hazel’s heart and soul. That is truly transformative of another person’s creative work. That is fair use.
Next month, we’ll take a look at using real people in your fiction (just like TFIOS). In the mean time, check out this free e-book on protecting your own creative work before posting it online.