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What’s So Fair About Fair Use?

I often get questions from writers about their ability to use material in their writing that was obtained from other sources. Maybe you are writing a historical work and want to use other historical works as background. Perhaps your hero and heroine are slow dancing to a popular song, and you want to “show, not tell” by including the lyrics. Or maybe putting a snippet of your favorite poem in italics at the beginning of each chapter is just the effect you need. What if you are criticizing or comparing text written by someone else?

For works under copyright, the question of whether you can use portions of the work without being liable for infringement is covered by the doctrine of Fair Use. This doctrine originated in the “common law” (law made by judges) in the United Kingdom in 1740, from which U.S. judges drew to develop the U.S. version of fair use at least as early as 1841. It was not actually codified until Congress passed the 1976 Copyright Act.

The Fair Use clause of the Copyright Act says it is fair to use a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, without the consent of the copyright owner.”

Every fair use case is a question of facts. The test for fair use is very easy to state, but very difficult to apply, and the outcome is even more difficult to predict. Fair use is determined on a case-by-case basis, meaning that if you ask someone, “Would it be fair use to do _______?” the most likely answer you’ll receive is “It depends.” (Get used to that answer. You’ll be hearing it a lot.)

The reason you’ll hear this answer so often is that each scenario needs to be analyzed based on its specific facts and circumstances based on the following four factors:

1) the purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes;

2) the nature and character of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the unauthorized use on the market for or value of the copyrighted work.

Courts weight these factors when faced with questions of copyright infringement (after the person whose material was taken without permission objects to that taking). But while these are the only factors specifically mentioned in the Fair Use clause, it doesn’t mean these are the only things at which the court can look. A court also may consider any other factor it deems relevant and place different weights on the four factors listed above.

While you do not need to engage in the detailed reasoning a court undertakes when deciding if you need to seek permission, you should be aware of the above factors and keep them in mind when using others’ materials in your own work. So what does this mean for your writing?

Purpose and Character of the Use

This factor looks at whether the new work was created for a commercial purpose or for a nonprofit/educational purpose. You’re here at the Rubies, so most likely your work will be created for a commercial purpose (we’re all career-minded here), and that characterization will tend to weigh towards a need to ask for permission.

The court also will look to whether your work is “transformative,” essentially taking elements from an existing work to create a new, creative work, and whether the work provides a social benefit to the public. Another element of this factor is your intent in taking the copyrighted work: Did you copy the existing work with the intent to exploit it and/or gain a commercial advantage, or is your copying incidental to the creation of your work?

Nature and Character of the Copyrighted Work

This factor reviews the work that you have copied. Was the copied work fact or fiction? Has it been published? Was the work created for a commercial or nonprofit use?
Generally speaking, if you have copied an unpublished fictional work, this factor will weight against fair use because you have eliminated the author’s ability to exploit her own work. In addition, it may be necessary to copy portions of a factual work, such as a news account, biography, or history in order to add your own material to the work, but it is usually not necessary to do so with a fictional work, published or unpublished.

Amount and Substantiality of the Portion Used

The concept of “fair” use is readily apparent in the evaluation of this factor, which looks at the amount and substantiality of the work you’ve copied in relation to the whole. Essentially, if you’ve copied only the necessary elements of a copyrighted work in order to create your new work, your copying may be viewed as fair use. On the other hand, if you copy the entirely of the work or the heart of a work (even if the heart of the work is captured in a small portion of the work in relation to the whole, it’s likely your act of copying won’t be considered fair use.

 Effect on the Market

The final fair use factor evaluates the effect your copying had on the market for and value of the copyrighted work. Does your copying harm the work you have taken material from? Will your newly crated work compete with the existing work, or does it fall into an entirely different market? These are the types of questions you should ask as you evaluate the effect your copying would have on the market.

 

As you can see, many of the fair use factors are closely related and dependent upon one another. The analysis, as well as how the court will weight each factor, or whether the court may look at other issues, depends very much on the facts and circumstances surrounding each instance of copying. (Remember that catch phrase I taught you at the beginning?)

In some situations, the importance of one factor may outweigh the other factors. Thus, as a general rule, you should not use any copyrighted material in your work without properly providing attribution, and you should use only what is absolutely necessary to create your work.

Let’s look at the question posed above about using song lyrics to show, not tell, in your writing. If you include the entirety of a song or the main refrain, you’ll definitely need to seek permission from the copyright holder. However, if you weave very short snippets of different song lyrics throughout the narrative (the key words here being “very short snippets”), with background information, you’re only using what is necessary of the copyrighted material to set the scene of your characters hearing a song. Also, if you select songs that include the title of a song in the lyrics, your readers will immediately recognize the song from just a few words. (It’s important to note here that you cannot copyright a title.)

No, I’m not going to give you a magic number for how many words is okay. This will always vary. (It depends, remember?) Now will I say that you can always do this or guarantee that the owner of the work you used will not try to assert his rights. But it is important to remember that copyright only protects expression, and if you’re using only a very few words, the portion that you’ve used may not even constitute protected expression. This is a case-by-case situation, and there is no one right answer.

If you have any doubts, you should always consult with an attorney and obtain permission from the copyright owner. Erring on the side of caution is never a bad thing.

 

Amanda Brice leads a double life. In her day job (under her real name), she is an intellectual property attorney for a large federal government agency in the Washington, DC area. A two-time Golden Heart finalist, she writes young adult fiction under her pen name (Amanda Brice). The second book in her Dani Spevak Mystery series, Pointe of No Return, will release exclusively for the NOOK a week from today, and then everywhere else and in all formats on June 13. You can learn more at www.amandabrice.net.

 

15 responses to “What’s So Fair About Fair Use?”

  1. Elisa Beatty says:

    This is so fascinating, Amanda!

    As a teacher, I’m always conscious of fair use…and I remember when I was a grad student there was a crackdown on xeroxed “course readers” that students would buy at Kinko’s, often for substantial amounts of money, and that were hundreds of pages long, crammed with full essays and short stories and dozens of poems by one author, etc.. And they’d be sold year after year after year for the same course.

    We were told teachers were going WAY too far with their use, and needed to back off. Only small amounts by one author were allowed, and course readers were not to use the same materials year after year.

    These days, so much is available on the internet, we sometimes just give our students URLs and say “go read this online.”

    But, of course, now it’s harder than ever to be sure that text is appearing with the consent of the author….

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  2. I had to do a LOT of research on this very subject for the Charley Davidson series. I even contacted a copyright and trademark expert because I use T-shirt slogans in the headings of my chapters. It’s all so interesting.

    I still think I’d be afraid to use song lyrics of any length. I’ve heard horror stories. LOL.

    Thank you for the great post!!! ~D~

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  3. Liz Talley says:

    Very nice post, Amanda. I use some products in my books, but I don’t use lyrics. I usually get around it by saying something like “The Eagles played on the radio, singing about desert highways and hotels she’d never check into.” Or something like that. The reader might be familiar enough to know it’s Hotel California, but I don’t really violates any copywrite laws. I think. I’ve heard some publishers won’t even let you use Coke or McDonalds, but my line doesn’t say anything unless it’s protrayed in a bad light…then I have to change it to something descriptive rather than product name.

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    • Tamara Hogan says:

      I used a similar lyric paraphrasing approach in TASTE ME, Liz, and Nickelback hasn’t come after me yet. 😉 My publisher has a similar approach to yours when brand names are used… doing so is fair game if the representation of the product is neutral-to-positive. If not, describe rather than name the product.

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      • Amanda Brice says:

        I did the paraphrasing you refer to in my upcoming POINTE OF NO RETURN when talking about a Carrie Underwood song on the radio.

        And I take the same trademark approach. If I’m going to slam something, I make up a name. If I’m just mentioning it in passing, then I use the actual trademark.

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    • Elisa Beatty says:

      That’s a smart work-around, Liz!

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      • Elisa Beatty says:

        This is one of the advantages of writing Regency, actually….don’t think anyone’s gonna sue me if I make disparaging comments about Mrs. Simpson’s Lavender Bath Salts.

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  4. Oh, Amanda, I love it when you go all LEGAL on us. 🙂 This was great info. I’ve been told that one line from a song would usually fall under the FAIR USE rule. Would you say that’s generally true, or would we be taking a chance with even that much?

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    • Amanda Brice says:

      It really depends. A very small amount should be fine, but how much is a small amount could vary from song to song. An important thing to note is the distinction of whether you’re taking the heart and soul of the song such that it cuts into the commercial viability. So it’s really hard to give a black and white answer.

      How’s that for hedging? 😉

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  5. Rita Henuber says:

    Thanks for this. I would so love to cram song lyrics into every book. I could totally use song titles at the beginning of chapters. Even though I’m told that titles are acceptable I’m paranoid about using anything like that. I was told the following was acceptable for songs.
    “You had my heart and soul. We could have had it all.” The Adele song played in her head as she watched him walk away.
    For here on out that Tim McGraw song, Live Like You Were Dying, was his theme song. He was going sky diving, mountain climbing, bull riding and everything else he’d put off doing for the company.

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  6. Grey areas. They make us all nuts!

    Great info, Amanda. Not to much worry about copyright infringement in the 15th Century, but I’ll never say never since it will surely return to bite me! The Sci-Fi however . . . This is stuff we all need to know.

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  7. June Love says:

    Wow, Amanda. This is great information. I just wrote a scene involving the character’s discussing ring tones. I only used titles, so I’m glad to know I’m safe with that. I don’t really use song lyrics, but make a reference to the song in another way.
    I love when the lawyer Amanda comes out to play!

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  8. Diana Layne says:

    been at a flat run all day, forgot about this–need to go post to FB, this is good stuff.

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