Reporters Off to the Races Writing About New Elon Musk Biography, but Where is the Copyright Line?

This post is the first installment in a new blog series from Courtney Duffy, our Robert W. Deutsch Arts & Technology Policy Fellow. In each post, Courtney will look at copyright issues through the lens of a different art form. She begins with the world of authorship. As always, you can find her on Twitter @cduffy90.

Writing can be, and often is, all-consuming. The good news for authors, of course, is that their work is entitled to protection under copyright whether they are writing for money or not.

By the same token, the work of other writers is protected by copyright, as well, which raises both moral and legal questions for authors whose work references the writing of others. There are specific rules that these writers need to break before they have technically infringed copyright. A newly published biography of Elon Musk has propelled the relationship between authorship and copyright to center stage.

Late last month, Ashlee Vance, the biographer who penned “Elon Musk: Tesla, SpaceX, and the Quest for a Fantastic Future” sharply criticized Business Insider on Twitter for publishing a series of articles that, in his view, crossed the (copyright) line by including juicy anecdotes from the book. On May 20 he tweeted from his handle, @valleyhack, to Henry Blodget (@hblodget), who co-founded Business Insider and currently serves as CEO and Editor-in-Chief:

hey @hblodget i appreciate all the attention for the book, but what you guys are doing now is shameful

— Ashlee Vance (@valleyhack) May 20, 2015

And again:

@hblodget @jyarow just sooooooo many posts mining the book. it undermines so much of what we do — Ashlee Vance (@valleyhack) May 20, 2015

To which Blodget replied first:

@valleyhack @jyarow Ahh. Disagree on last. Creates awareness and sells lots. But! Your book so your call.

— Henry Blodget (@hblodget) May 20, 2015

And later:

@valleyhack it’s your call! But I would respectfully suggest this sells books AND relays your great work to many who won’t read it.

— Henry Blodget (@hblodget) May 20, 2015

(Of note: Blodget is actually off the mark here — it’s not Vance’s call, but more on that later). After a few more tweets exchanged, some including Business Insider Executive Editor Jay Yarow, the two playfully agreed to disagree:

@valleyhack All right! When buzz dies down and you want to get sales cranking again, give us a ping. (And congrats — I hear it’s great)

— Henry Blodget (@hblodget) May 20, 2015

@hblodget heh, thanks. hope you enjoy

— Ashlee Vance (@valleyhack) May 20, 2015

You can find the full May 20 Twitter dialogue here.

While the two stopped short of getting truly warm and fuzzy, the issue seemed to be put to rest — until a week later. After Business Insider published additional stories with anecdotes from the book, Vance again took to Twitter on May 27:

Ok, for real @hblodget, I don’t think this can be considered fair use anymore

— Ashlee Vance (@valleyhack) May 27, 2015

And after a few additional exchanges (full dialogue here), Vance rejects Blodget’s notion that links to the book’s Amazon page contained in the Business Insider articles are helpful:

@hblodget that’s not the use. it’s the amount of the book you are taking. it’s doing just fine without your “publicity.”

— Ashlee Vance (@valleyhack) May 27, 2015

This exchange is the first time that Vance brings up the question of fair use. It’s safe to say that the publication overdid the stories on the Elon Musk biography — but Business Insider is competing in today’s clickbait world and Musk is a compelling subject.

So does Vance have a case? A moral one, perhaps, but not a case that would hold up in court. Here’s why:

Reporters have massive capabilities when it comes to fair use. Reporters are well within their rights to take inspiration from someone else’s work as long as they stop short of publishing large chunks of text verbatim that comprises a large percentage of the overall work (like a full chapter from the book, for example). Sure, Vance can argue that the series of Business Insider articles feature so many of his Musk anecdotes that together they spoil the book’s big moments, but in the absence of truly unchanged, word-for-word extractions from the book, Vance’s argument is moot.

Should Vance elect to take legal action, his team may be tempted to reference in their argument a 1985 Supreme Court decision called Harper & Row v. Nation Enterprises. In this case, the Court ruled that a magazine which published without permission a few hundred words from a presidential memoir did not qualify as fair use because the book had yet to be published and the copied passage contained the “heart of the work.” While some of the Business Insider posts were indeed published before the book’s May 19 release, they tended to include anecdotes rather than explicit quotes. That said, Business Insider did elect to redirect to Amazon certain articles that focused on quotes from the book, like a piece by Lisa Eadicicco called “11 fascinating things Tesla billionaire Elon Musk said in the new book about his life.”

So what does all this copyright-related unrest in the Twitterverse mean for authors? Here are a few key takeaways:

• Facts and anecdotes cannot be copyrighted. It is the actual string of words, assembled with the creative touch of authors and their editors, that is protected under copyright. Textbooks, though they contain facts, are still considered creative works because there is creative expression in the writing and editing processes.
• In the digital age it is easier than ever for writers to digitally access (and in some cases, infringe upon) the work of others. On the flip side, however, this means that authors can reach a wider audience than ever before.
• It is always a good idea for authors to attempt to get permission before copying parts of a work. Obtaining permissions can be difficult, but authors can attempt to cover their bases by sending a letter to the owner. A good rule of thumb: describe the project, the intended material to be used and the scope of the rights needed. [Tip from “So What… About Copyright,” published by Public Knowledge].

All in all, writers have a great deal to think about when it comes to copyright. While their work is entitled to protections, authors should feel comfortable taking inspiration from the work of others.

For the record, Vance did proactively provide comment on the issue to Observer, a publication I referenced myself while writing this post. I also referenced this Fortune article by Jeff John Roberts.