Michele Preisendorf & Angela Eschler
When Is Fair Use Fair?
Writers love quotes, songs, and funny or inspirational images. What word-nerd doesn’t? We tape them on our mirrors, dashboards, and walls and post them to our websites. We like them to set the tone for our novels, start our nonfiction chapters off with inspiration and insight, and add authority to our own ideas. But many writers are never quite sure what’s safe to quote—how much, and in what contexts? Are there instances when you can safely borrow material that belongs to someone else without infringing on their copyright? And what happens if you do—accidentally, of course—infringe on someone’s copyright?
Well, it’s not pretty if you happen to use material from someone with deep pockets and powerful attorneys. Using quotes, songs, images, or others’ intellectual property cited, used, or paraphrased in your book (images may include cartoons, comics, photos, stock art, graphics, memes, charts/data, etc.)—without copyright-holder permission—can result in lawsuits that result in a loss of hundreds of thousands of dollars (or more, in some cases) and limit your brick-and-mortar store distribution opportunities.
While you should always seek official legal counsel (from an expert in intellectual property law) before you use quotes, scenes, songs, images, etc., in any of your for-profit/for-fundraising works, we can give you a simplified answer to the basic questions above and where you need to start looking to make sure you’re square with the law.
There’s even new software out there to help you determine if your quoted material is likely to fall under fair use or not. If you’re still unsure about what you can fairly use after reading this article, the best practice is to follow the old adages, “better safe than sorry” and “when in doubt, go without,” as evidenced by the myriad court cases that have come about when folks thought that they were doing it right. (Or you can call in a favor or write a check to that local lawyer and get the nitty-gritty answers to your questions.)
The doctrine of fair use addresses what can be copied: You can copy material to your heart’s content if it’s general public domain. This basically refers to material that is “outdated.” Any work published before 1923 is free game, and any work after 1967 for which the copyright was not renewed is also free game. And some authors/artists have published works they want to share, which they have declared as public domain.
Outside of public domain, you can’t use others’ ideas as the crux of your own argument in nonfiction, but only as support, and it’s smart to avoid using more than a few lines (and, if you’re worried, get permission even then). In many cases, the copyright holder is happy to have their work shared more broadly and will grant permission with no strings attached. Just be aware that if you’re producing a for-profit work, you’re at risk of someone’s right to sue if you have no permission to use the quoted material/IP.
Here is a handy reference defining public domain in its many arenas. And a critical resource for parsing out everything copyright related—for writers—is The Copyright Handbook by Stephen Fishman, JD.
Back in the day, fair use allowed one author to use another author’s work in creating their own work if the total amount borrowed was within reason, even if the borrowing author’s book sold thousands of copies. Today, every fair-use violation is examined on a case-by-case basis determined by the rule of thumb that fair use not diminish the “potential market for or value of the copyrighted work ” (U.S. Code, Title 17, Section 107). According to the code, “There is no specific number of words, lines, or notes that may safely be taken without permission.”
In sum, if you use someone else’s ideas in your book and then you make money on your book, the copyright holder might feel he/she were owed royalties/payments for the borrowed ideas—arguing that those ideas helped popularize your book in the first place.
Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
When Fair Use Is Fair to Use
The above said, fair use is supposed to protect the advancement of the arts, sciences, scholarship, commentary and criticism, etc., so the principle generally allows quotation of excerpts in the following cases (when you are):
- Writing news reports.
- Doing a review or criticism.
- Teaching (must be nonprofit, face-to-face).
- Writing research (these must be “short passages”; refer to a journal’s style guide for specific guidelines).
- Producing parody.
In general you will find that organizations and publishers have their own rules based on experience (including lawsuits), the advice of lawyers (who we hope keep up on policy changes), and codes of ethics. For example, the American Psychological Association (APA) declares that copyright holders define what they consider fair use and that the responsibility for getting permissions lies with the user (APA style, 6th ed., section 8.04, p. 233; see also sections 1.10 & 6.10).
Authors should demonstrate a reasonable due diligence, or take steps to satisfy the legal requirements, in using copyrighted material.
The first step in obtaining permission is, of course, to determine who the copyright holder is. This is usually a publisher or producer. Next, contact the copyright holder. Publishers, authors/artists often have a form on their websites where you can request permission to quote something by typing exactly what you’re quoting and in what context. After that, you may need to negotiate payment with the copyright holder (sometimes permission is granted freely, sometimes at a cost—and sometimes copyright holders don’t reply for months).
Finally, be sure to get your permission statement in writing; email counts. If you never hear back after several varied attempts to contact someone, keep the quoting to a minimum and make sure you aren’t using the idea as the crux of your argument (or that you’re using their idea in a way that sounds like it’s your own idea). Also, you’re safest to avoid using the quote in a compendium. And most importantly, make sure to keep records of your attempts to gain permission.
Cautions for Violations We See Frequently
There are some fair-use violations we see frequently in the book-publishing world. The most common violations with quoted material are authors not properly citing sources for quotes and paraphrased material—and not getting permission to do so even when cited. A second problem we see often is when authors use others’ ideas as the foundation of their argument or point rather than as additional support for their own ideas. Or the author’s point seems to be merely a rephrasing of another author’s work with no original angle or purpose. In addition to those main problems the following two items require some caution as well:
Songs and images
Use caution in quoting lines from songs and such. Publishing houses are super careful about using even one line. Self-publishers take on a significant risk in quoting lyrics without permission. Permission to use lyrics is often granted by the copyright holder—with the expectation of payment or a percentage of the royalties you make. Use of lyrics does not generally come cheap. If you’re looking for permission, check out these organizations that represent composers, writers, and publishers and advocate for performing artists: ASCAP, BMI, and SESAC.
Images (cartoons, graphics, stock art, photos, comics, drawings, memes, etc.) are also often available when you’ve sought written permission or paid for usage rights. However, understand the limitations of your usage rights. The copyright holder may be fine if you use it on a blog, but not fine if you use it in a for-profit work (like a book, inside or on the cover). Or your rights may have limits—you can use the image at x price for up to so many copies sold, but then you’ll need to pay more for copies after that. Or there may be time limits or other boundaries on your usage. Make sure you are crystal clear on when, how, and for how long you may use the material, and get that permission in writing!
Quotes from Church Authorities
Since a portion of our authors publish in the local market of The Church of Jesus Christ of Latter Day Saints, a word to the wise for authors quoting Church General Authorities, or any material found on TheChurchofJesusChrist.org: The Church is extremely careful about accuracy in quoting and attribution (and, additionally, doesn’t want quotes from Church authorities to be mistaken as an endorsement of any particular book), and consequently there is no fair use as far as the Church is concerned; anything ever uttered by a General Authority and anything ever printed in a Church-owned publication (like the Liahona) is owned by the Church, and you have to get permission from them to use it—even if it’s just a phrase or a sentence.
The Church is most concerned with authors quoting current authorities, and possibly somewhat less vigilant about very short quotes from long-deceased authorities (keep them under 200 words); however, the Church still prefers authors get permission for any quotes. Lastly, when it comes to quoting scripture, the scriptures themselves now fall under a renewed copyright and are not public domain (unless you are quoting from a version published before 1923 or simply quoting the King James Bible); this copyright protects footnotes, the Bible Dictionary, headings, and maps (and any other modern additions to the standard works).
Additionally, distributors that can help get your book into brick-and-mortar stores that specialize in this Church market generally will not accept titles that have not gone through Church approval (if you include quotes, images, songs, etc., from Church-owned materials).
If you want to use Church-owned material, you have to fill out forms and formally request permission; you can do this through the Intellectual Property Office. This includes listing every scripture/quote you’d like to use and their page number, in addition to turning in the manuscript/book for review of the context around your quote. Know that it can sometimes take up to 45 days to get a reply, though many authors have reported a faster response time; so plan as far out as possible in order to avoid delays in publication.
(As a final reminder, this fair-use discussion applies to for-profit works; if you are publishing a book and selling it, that’s a for-profit work.)
Do This Now
- Run your proposed use of the copyrighted material through FUEL (Fair Use Evaluation Log), a new software that can help you determine if you are abiding by fair use. As of this posting, it’s totally free (and extremely helpful). Please note, however, that this tool is used as an educational resource and not as a substitute for legal counsel.
- To get a sample of a permission letter and to learn even more about fair use, check out this incredible resource from Jane Friedman.
- Get a copy of The Copyright Handbook by Stephen Fishman, JD.
- Be sure to go through your upcoming work with a fine-tooth comb for any quoted material you intend to use; start working on getting permissions now so that your work doesn’t get put on hold while waiting for permissions. If this seems like a tedious prospect in addition to everything else you’ve got to do, you can hire a personal assistant to do the grunt work!
Sometimes great wordsmiths say something in a way no one else can. It’s nice to be able to use their insight, but make sure it stays their insight. Enjoy your quotes, but choose wisely as to what you share in your for-profit works.
For more in-depth information about fair use, check out Stanford’s information on fair use and the U.S. Copyright Office’s article here.
Read this article by publishing attorney and literary agent, Joseph Perry. Have more questions for your project? Contact us for a direct referral to Mr. Perry.
Article provided courtesy of Eschler Editing at eschlerediting.com.
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