What Every Writer Ought to Know about Fair Use and Copyright

by Joel Friedlander on February 8, 2010 · 242 comments

I’ve been researching what the best practices are these days for copyright, and I’ll be writing about them in articles soon. But one area of copyright is really difficult to understand for most publishers, and for bloggers too for that matter. And that is: What constitutes “fair use”?

To answer this question I’m very fortunate to have an expert to guide us. Today’s guest post is by Attorney David L. Amkraut, and you can find out more about David at the end of the article. Enjoy!

Fair Use and Copyright

“Fair use” is a legal doctrine which excuses acts that would otherwise be copyright infringement. Infringers who are caught invariably yell, “Fair Use.” But fair use is misunderstood by many infringers. And authors. And photographers and illustrators, too. Let’s try to explain it in plain terms.

Fair Use is an “affirmative defense”—the defendant copier has the burden of proof to show that Fair Use applies. Essentially he says, “Yes, I copied the work—but I am allowed to because my copying is “Fair Use.”

The doctrine developed to allow limited and reasonable uses of copyright–protected work. Examples include a reviewer quoting briefly from a book, or a teacher using brief passages from a book to teach English usage or writing. Copying allowed by Fair Use is usually, though not always, a small part of a work and typically includes an author credit and attribution.

In fancy words, “It [fair use] was created to allow use of copyright (sic) material for socially valuable purposes such as commentary, parody, news reporting, education and the like, without permission of the copyright holder.”

Fair uses are generally, though not always, for non–profit purposes. Fair use is seldom allowed where the copier’s use competes directly with the work or harms its commercial value. Such as lifting entire chapters from a book, to sell online. Or copying piles of text and entire groups of photos from a website, to stock a competing website.

The Four Factor Test

Fair Use is not a rigid “bright line” legal rule. Rather, courts do a case–by–case analysis of the facts, using a “Four Factor test” to analyze whether Fair Use applies in a given situation. The four factors are stated in the opinion of the famous Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841). There the defendant had copied 353 pages from the plaintiff’s 12-volume biography of George Washington, in order to produce a separate two-volume work of his own.

Here’s a good explanation of how you apply the Four Factor test:

“Notwithstanding the provisions of … [copyright] … the fair use of a copyrighted work, including such use by reproduction … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature 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 use upon the potential market for or value of the copyrighted work.”

Scenarios: Is it “Fair Use” or is it Infringement?

Let’s play judge. It’ll be fun. The first two are easy ones. The other examples are not as simple.

Scenario 1: An English teacher prints a classroom handout, and includes a quotation from a book on the Grand Canyon, to show pithy writing: “…the awful heat sucked out his thinking ability like a brain vampire…”

Analysis: Teacher prevails on all four factors. This is exactly the type of usage that falls squarely under Fair Use.

Scenario 2: A gigantic online operator—let’s call it Giggle.com—scans and stores 11+ Million books (including yours), without any permission from the copyright holder. Then it uses the unauthorized scans to reproduce and sell the books in both printed (“P-book”) and electronic (“E-book”) form. Giggle gets sued, and claims Fair Use as a defense.

Analysis: Defendant fails on Factor 1, because the use is for money. Factor 2 is unfavorable to defendant. Defendant fails on Factor 3 because Giggle is copying the entire book, not just portions. Defendant fails strongly on Factor 4 because defendant is unfairly and directly competing with the rightful owner and hurting his market for the book. Thus, defendant Giggle should be judged to be committing copyright infringement.

Scenario 3: You’re a college professor as well as a writer or self–publisher. You gather full chapters from several books, and have them copied, printed, and bound to create your course’s required readings. The students buy the compilation at a copying service company. You, the professor, get a lucrative kickback. The owners of copyright in the works you copied get nothing. You and the copying service get sued. You claim Fair Use.

Analysis: You fail on Factor 1, because you are making money, not just using the copied work for education. Factor 2 is unfavorable to you. You argue like crazy but are wrong on Factors 3 and 4. By the way, this scenario is based on an actual case, and defendants lost. The Court may have also been disgusted with defendants’ “dirty hands,” involving the copying services and bookstores paying kickbacks or commissions to the professors. You lose. Not Fair Use.

Here are a few more interesting scenarios. We don’t need to analyze them in detail, now that you’re getting so sophisticated and already starting to think like a judge or lawyer.

Scenario 4: The magazine The Nation printed an excerpt from President Ford’s book on President Nixon. Although the excerpt was only a tiny part of the work, it was almost the only part anyone cared about. (Nixon’s comments when abdicating) Publisher sued.

Result: Court ruled it was not Fair Use. Most interesting was the Court’s analysis of Factor 3: although the amount copied was small, its substantiality was large. The Court was also influenced by the fact that The Nation obtained the manuscript surreptitiously and “scooped” the copyright owner’s intended serialization by several weeks.

Scenario 5: You are a self–publisher or author or micro-publisher finishing a book on keeping kids healthy. You realize you need a cute headshot of a happy smiling teenager. You want to save a few dollars, so you find a nice photo in a women’s magazine, scan it, and use on your book cover. Copyright holder sues you. You claim Fair Use.

Result: You lose.

Advice: Don’t steal photos. Buy a license.

Scenario 6: You are a self–publisher or author or micro-publisher preparing a book on the evolution of lighting styles in fashion photography. You scan some photos from a fashion magazine and use them to comment and explain concepts like “soft lighting,” “hard lighting, ” and “catalog lighting.” Copyright holder sues you. You claim Fair Use.

Result: You should win. The use is incidental to the book, doesn’t harm the rights–holder, and is for the purpose of education and commentary.

Scenario 7: Several years ago the Danish publication Jyllens–Posten published cartoons of Muhammed, the founder of Islam. You’re a self–publisher or author or micro–publisher preparing a serious book on the cartoons, to discuss the cartoons, the Muslim uproar, attacks on Danes, burning of Danish property, Muslim cartoons in their own media inciting violence, etc. You reproduce the cartoons in your book. Copyright–holder Jyllens–Posten sues you. What result?

Result: You’ll probably win on Fair Use. The topic is of tremendous public importance. The cartoons are shown in the context of that topic and in a book with serious commentary. And it is impossible to meaningfully discuss the cartoons without actually showing the cartoons in their entirety.

Really, when you strip away the fancy language, Fair Use is a pretty sensible concept. It gives “breathing room” to the First Amendment and tries to strike a balance between protecting the copyright owner’s property rights, and encouraging valuable activities such as scholarship and public discussion. Fair Use comes down to whether the use is “fair” and should be allowed.

About the Author

David L. Amkraut is a Los Angeles-based Attorney at law. His practice emphasizes cutting-edge Internet-related copyright matters. Among other cases, he was attorney for the plaintiffs in Louder v. CompuServe, a class-action case involving unauthorized publication of 930 photographs of models by the 2nd-largest Internet Service Provider in the world. He also served as counsel in KNB v. Matthews, an important case defining the relationship between copyright and the “Right of Publicity” in still photographs. Law Offices of David L. Amkraut, 2272 Colorado Blvd., #1228, Los Angeles, CA 90041

Thanks to David for this very informative article. Check the “Related Posts” links below for more articles about copyright.

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    { 227 comments… read them below or add one }

    betty ming liu February 8, 2010 at 8:49 am

    This is so helpful, Joel! I get most of it — except for Scenarios 5 and 6. I don’t get why one is fair use and the other isn’t. Don’t know if this is too hard to explain via a comment, but if you can, I’d be interested in learning more.

    Also, is it fair use if a teacher xeroxes a few chapters out of a book to distribute in class for discussion? Is the fair use issue different if the teacher scans the chapters and posts them online at a website that only the students can view?

    Reply

    David Amkraut February 8, 2010 at 11:18 pm

    Betty Ming Liu’s questions:

    QUESTION RE: Differerence between Scenarios 5 and 6.
    Scenario 5 is not fair use. All four factors are against fair use:
    1. Purpose of use: commercial activity, no attribution, profiting from use, for public distribution. Not, e.g., scholarship, criticism.
    2. Nature: work is creative and artistic. Weighs against fair use compared to factual or non-fiction work.
    3. Amount: infringer took the whole work.
    4. Market effect: Infringer used it widely and repeatedly, deprives owner of licensing or sale fee.
    Scenario 6 is likely to be fair use:
    1. Purpose: used for criticism, comment, scholarship. Strongly favors fair use.
    2. Nature of work: creative, artistic; weighs against fair use.
    3. Amount: copied whole photo, but necessary to do so for the use. weighs against, but slightly.
    4. Market effect: Should not impair market for original work, might stimulate it. Somewhat favors fair use.
    OTHER COMMENTS: A commonsense argument: how else does a critic, scholar, news reporter, etc. discuss a photographic work except by showing it, or discuss his theories except with illustrative examples?

    QUESTION RE: classroom use of book chapters (both printed or on teacher’s web site):
    Not a fair use. A four factor analysis: 1. Purpose is legitimate and favors fair use; 2. Nature of work— factual or creative/artistic is not stated, therefore unclear. 3. Amount taken is substantial, not mere excerpt; 3. Market effect is ruinous to author and publisher; students who would otherwise be expected to buy the book would not do so. In addition, the teacher had other legitimate approaches such as placing a copy or two of the book on reserve in the school library.

    People considering such classroom use might also look at the best known set of guidelines, “Guidelines for Classroom Copying in Not for Profit Educational Institutions with Respect to Books and Periodicals.” Originally, accompanying the Copyright Act of 1976, Congress originally these guidelines in House Report 94-1476. However, the guidelines were not included in the Copyright Act of 1976 and are therefore not “the law.”

    Several final comments: First, understand that fair is not cut and dried but requires case by case analysis of the facts. Some fact patterns are clearly fair use and some are not; a reasonable judge could decide only one way. But many fact patterns are close calls. The judge must scrutinize the factors and then balance them, applying the “rule of reason” and trying to be just. By the way, close fair use cases are a favorite topic in law school exams and moot court, because reasonable arguments can be made on both sides.

    Second, ask how you would you feel if you were the author of a textbook whose market was destroyed by widespread copying, not of brief excerpts, but of whole chapters? Widespread copying of specialized publications has driven some scholarly and scientific publications out of business.

    Third, one statement in the underlying article should be clarified. Although the concept of fair use has been around for a long time, the four factors were codified in U.S. Copyright Act, 17 U.S.C. Section 107, titled “Limitations on Exclusive Rights: Fair Use.”

    Reply

    betty ming liu February 9, 2010 at 4:23 am

    Wow. It’s so generous of you to take the time and explain this in such detail. Thank you for sharing!

    Reply

    Joel February 9, 2010 at 10:25 am

    Betty, thanks for asking some real-world questions. And thanks again to David for explaining with these real-world cases, how to apply the “four factors” test. As both a content creator (author of this blog and books) as well as a publisher (in which role I use other people’s works) I know it’s really important to be sensitive to the people behind the works themselves. That’s why David’s last point, about how one would feel as the party being copied, is crucial to me. Great stuff.

    Reply

    Shelley Gable February 9, 2010 at 9:12 pm

    Interesting post – thanks for adding the cases! As a relatively new writer, I’m still picking up on concepts like this. While I had heard of “fair use,” I wasn’t clear on the specifics. This helped tremendously – thanks!

    Reply

    Joel February 9, 2010 at 11:06 pm

    Shelley, it’s getting more and more important to understand this idea of fair use, what you can do as a writer, and what you can’t do unless you have specific permission. Something we all have to learn and be reminded of.

    Reply

    Alisha February 14, 2010 at 5:05 pm

    This is great! I was wondering about my use of a lyric from a song in a chapter of my book. The lyrics are positive, happy, and promote self reliance and I use it as an example of the same principals in the chapter.

    Is that fair use? Or am I infringing on the writer’s copyright? I give credit the singer, the name of the album, etc.

    If it is infringement, how does one go about getting the rights to use the material? At least the lines from the song?

    Reply

    Christine Rabah July 23, 2011 at 9:56 pm

    Alisha, let me guess: you are talking about “I will survive” by Gloria Gaynor – right?

    Reply

    Julia February 15, 2010 at 3:22 pm

    I often get pictures from goggle images for my blog posts. Should I be purchasing them from istock instead? When we publish a book we always purchase the photos but rarely when putting them in a post.

    In Scenario 4 I was unclear how that was a violation of fair use. I always thought you could quote from another source if you references the source.

    Reply

    David Amkraut February 15, 2010 at 4:26 pm

    Re: Julia’s two questions:
    1. Using someone else’s pics is usually infringement, unless it falls under fair use or (very unlikely) the pic has been put in the public domain by the rights owner. This does not sound like fair use and there is no evidence presented that the pic has been put in the public domain. Whether you are likely to have a problem as a practical matter is a different question.

    The fact that you got the picture through Google Images or some similar mechanism does not insulate or protect you from liability. One court has held that Google’s operation of Google Images is legally permissible because it is a “transformative use.” The decision has been widely criticized as misunderstanding technology, standing copyright law on its head, and being extraordinarily protective of Google. But court decisions like that do not protect the person who gets pics through Google. But, you ask, “How can Google do what it does millions of times a day with millions of pics it doesn’t own, and I am liable for using one pic in one trivial way?” I would sympathisize with you but that’s the situation right now.

    2. Scenario 4 above (The Harper and Row v. the Nation case): No. Don’t confuse copyright infringement with plagiarism. The essence of plagiarism is that the copier fails to acknowledge the real author but claims work as his own. The crux of copyright infringement is that the copier uses someone’s work without their permission. Copyright infringement would still be copyright infringement even if the copier credits the author.

    Reply

    Joel February 15, 2010 at 6:45 pm

    David, thanks again for your input. I frequently use Stock.xchng, which makes use of the Creative Commons licensing, making it possible to use their images for blog posts as long as you credit them. This is explained in the Licensing section of their website. You can also search on Flickr based on the rights assigned by Creative Commons, so you can use works you find that way too.

    Reply

    Alisha February 15, 2010 at 6:49 pm

    Good explanation David and Joel! That makes sense with the Google pics thing. I use photos from Google on my blog and I give them credit (usually) from the site at least.

    See my post above for copyright infringement regarding song lyrics. Any help would be greatly appreciated!

    Reply

    Walt Shiel February 22, 2010 at 10:49 am

    Great article!

    If only more people would actually pay attention to explanations such as this. Unfortunately, those who need it most are the least likely to bother trying to understand fair use. I’ve lost count of the number of times people have posted my content on other blogs without permission and, when I brought it to their attention, tried to tell me I should be grateful for all the extra “exposure.”

    And it’s funny, but Scenario 2 sounds so familiar to me…it even made me…giggle?

    Reply

    Joel February 22, 2010 at 10:59 am

    You know, Walt, even when I point this out to authors specifically, many will deny they are doing anything “wrong” or “improper.” What’s odd is that people who infringe are often content creators themselves, but don’t seem to stop to ask how they would feel if others did the same thing with their content. Thanks for coming by for a … giggle.

    Reply

    Laurel L. Russwurm February 25, 2010 at 10:38 am

    In Google Image Search you can select “advanced search” and choose “Usage Rights” which searches ONLY for creative commons licensed images. You can specify:
    * labeled for reuse
    * labeled for commercial reuse
    * labeled for reuse with modification
    * labeled for commercial reuse with modification

    The Flickr advanced search allows “Only search within Creative Commons-licensed content” and you select commercial or non-commercial use.

    I believe that all of Wikimedia commons images are available for reuse as well.

    My understanding of the “Giggle” case was that initially e-sales were not part of the Book Scan project, except for public domain works. I didn’t have a problem with Giggle scanning and selling public domain works, just like any other publisher. Once anything is in public domain it should never be allowed to be removed from the public domain. Project Gutenberg is a much better solution. (Volunteer driven; better quality, free. )

    Yes, Giggle was scanning whole copyright books but only providing a couple of pages, or a “fair use sized portion” so people could search a few lines of text and call up the page it was on in a search.

    The first I heard of Giggle’s acquisition of digital rights to everything they scanned was in the terms of the “Giggle Books Settlement”, where Giggle went from accused copyright infringer to being given title to the digital rights to everything they scan.

    From where I sit, allowing Giggle to scan all the books in all the world to make them searchable was a fair use and would have been incredibly good, not just for Giggle, but to creators and audience too. Having a settlement where Giggle gets title to everything they scan for a nominal fee is ludicrous.

    Copyright laws need to change but allowing Giggle or anyone else to control the digital market would be a very bad thing. Almost as bad as A.C.T.A.

    Reply

    Joel February 25, 2010 at 12:11 pm

    Laurel, thanks for your detailed comment. The Google Image Advanced Search is a really great tip for bloggers and publishers alike, thanks for that.

    There has been so much confusion, misinterpretation and shifting parameters of the “Giggle” case that it’s hard to get a grip on. We have had long detailed discussions on several of the publisher lists and, quite frankly, I find it arduous to follow. But taken on its face, to scan and then make available copyrighted works, all without any notice or permission from the copyright holder just seems a remarkable infringement, regardless of any good that might come from it. The project seems to want to exist outside of any laws that might constrain it. Unless individual rights holders are given some say in the matter, it will continue to seem invasive to me.

    Reply

    Justin Matthews February 25, 2010 at 7:25 pm

    Great explanation about the fair use rules. I definitely understand them better now. this will be helpful as my writing gets ready to head into the world and a good reminder for me to be careful what I am copying or using from other websites or books.,
    Thanks
    Justin

    Reply

    Joel February 25, 2010 at 11:42 pm

    Hey Justin, thanks for that. It’s amazing how often you see articles in the news about a highly-respected author simply overlooking attributions for the quotations they are using and, consequently, landing in hot water. Good to have a system of some kind to track these quotes during research.

    Reply

    James April 24, 2010 at 10:49 pm

    Hi, im studying as a designer, im very small time and still havent taken any kind of well paying jobs. I made some cover artwork for a CD press kit for my band and used a photo (which i later found out was featured in playboy) on the front. The image is heavily cropped and ultimatley only aproximatly 10 to 15% of the original image is still visible. It has also been changed to a black and white halftone rendering, and is really only just the womans face. I left a credit on the back too, reading “photo courtesy of Playboy.com”
    Is this ok?
    Since im not being paid for the job, and the CD its self isnt generating any revenue at all (simply a promotional give away to venues and people interested in booking the band) is this covered by fair use?
    If not, is it covered by anything else? I just want to make sure it wont potentially bring a legal shit storm down on us, because we are a very small band and couldnt afford a law suit.
    Any help would be much appreciated. great article by the way!

    you can see the image im refering to being used for the background of the bands current myspace page at http://www.myspace.com/deathvalleymustangs

    Reply

    Joel April 26, 2010 at 7:18 am

    Hi James, thanks for your comment.

    I’m not a lawyer, but it seems that David Amkraut covered some of these kinds of uses in his article. Since you don’t own the image, and you haven’t acquired any rights to use it from the copyright owner, it’s probably not allowed. However, if you can’t identify the image in your final artwork it might be challenging for anyone to realize that you’ve used it. Whether or not you were paid for the job, and whether or not the CD is being given away or sold don’t make any difference.

    Reply

    Jenn May 9, 2010 at 10:50 am

    Great article! Thanks! A friend pointed me to it since I am currently resarching fair use for my own book, which is a humorous gift book that includes a few quotes from humor writers and comedians. In my case, my publisher says these fall under “fair use” and no permissions are needed (since they are very short quotes), but based on what you’ve written, I’m not totally convinced that they do. E.g., my book is obviously a for-profit endeavor and the quoted works are generally creative nonfiction (humor books or stand-up routines). I’d like to believe my pub–seems like they should know!–but I’m the one on the hook for copyright infringement if they’re wrong. Do most authors bother to get permission for short quotes used in their books? (e.g., in chapter headings?) My guess is that even when they should do it they don’t, either because they don’t realize it’s infringement or because they figure they won’t get caught.

    Reply

    Joel Friedlander May 9, 2010 at 1:04 pm

    Jenn, when I was a publisher I think I would have said the same thing your publisher said. However, having read David’s piece here and a lot that’s been written on this topic since, I’d have to say my certainty has diminished, if you know what I mean. I think I’d try to get a professional opinion if you think you would be exposing yourself to any liability. Often it’s not that difficult to get permission, sometimes you just have to ask. You should find out if your publisher is willing to pay for or split any licensing fees that might be necessary. I assume he’s keeping at least 80% of the profit?

    Reply

    Teresa January 1, 2014 at 2:37 pm

    Hey Joel,

    I was wondering if you could help me with a question. I just started my new magazine publication, which launches digitally January 3rd 2014. My question is, do I need permission before I can promote a album or movie. Example, if I want to do a entertainment page that promotes new albums or movies would I have to contact the artist or film company for permission to use a picture of the album or film material.

    Reply

    Joel Friedlander January 2, 2014 at 10:56 am

    No, as far as I know you wouldn’t need permission to review or promote albums or movies.

    Reply

    Celise May 10, 2010 at 2:33 pm

    I wish I’d seen this when it had been originally posted because I have questions about an idea I have. Do I need to get permission to use the name of musician or group in the title of a book (hypothetical i.e. “U2 is my Spirit Guide”? How much of the lyrics can I use within the book before I need to get permission (i.e. if the character is singing along with the radio or at a concert or something)

    Reply

    Joel Friedlander May 10, 2010 at 3:46 pm

    Celise, I’m not an attorney but I understand that you cannot copyright titles per se. It may be that U2 has trademarked their name, in which case it is possibly an infringement. On the lyrics, it’s pretty widely known that some musicians are vigilant about others quoting from them. I’ve heard of some that will let one line go by, but will sue if there are 2 lines from the same song used. If you have any questions I urge you to get advice from an intellectual property lawyer, since it’s only by looking at the specific issue that a judgment can be made. And if you find anything out that you feel would help others, please come back and post it.

    Reply

    Lonny Dunn May 12, 2010 at 7:40 pm

    I wanted to make a connection between you and Nils Montan, a copywrite lawyer among other things, but he’s an really nice guy; and true internet personality. Maybe you guys could do a “Joint” piece together or something. I met him on linkedin, and I’ve always enjoyed what he has to say. Thanks for this article, it is awesome. I am working on a short book, Worlds Best Tips about all kinds of ideas and functions involving the internet, and no cost efficiency tips. Follow me on Twitter at http://www.twitter.com/WorldsBestTips, and if you don’t mind, I would like to list this tweet on the permanent list of “Great Ideas” and it will stay up there for all to see. Once again thanks for your layperson style, lucid and comprehensive writing style, I really appreciate you.

    Lonny Dunn, Director of Operations
    SmartPeopleMarketing.com

    Reply

    Joel Friedlander May 12, 2010 at 8:11 pm

    Lonny, thanks for that. And for the referral, I will certainly look up Nils Montan.

    Sure, I’d be flattered to be included in your “Best Tips”! And thanks for reading.

    Reply

    Pati Nagle May 13, 2010 at 8:48 am

    Great article! Makes things very clear. Thanks so much!

    Reply

    Joel Friedlander May 14, 2010 at 12:57 pm

    Sure, Pati. Nice to have you visiting.

    Reply

    BJ Brant May 13, 2010 at 10:26 pm

    I have a question I’m working on.

    A magazine took photos of a friend of mine who is a well-known soccer player. He was given copies of the photos, some of which were published. His publicist wants to use some of the photos for a brochure for his public appearances.

    I’ve asked the magazine for permission to use them, but they have a restriction in their contract with the agency that did the photography for “commercial use.” We are still awaiting a response from the agency.

    The publicist insists that because they are photos of himself, as a public figure he has full rights to use them in a commercial manner if he so desires. I’m convinced that we must have a release from the agency, particularly since the agency’s contract with the magazine prohibits further commercial use.

    Who is correct?

    Reply

    David Amkraut May 14, 2010 at 12:26 pm

    In response to BJ Brant’s question about photos of the soccer player: The photographer’s publicist is in error.

    The photographer who shot the photos, or the agency or magazine the photographer worked for, owns copyright in the photos. (I do not know the arrangement between photog and othes as to rights) Therefore the soccer player and his publicist are not free to use the photos unless they have a license from the copyright holder. Absent such permission, doing so would infringe copyright.

    Reply

    Joel Friedlander May 14, 2010 at 1:00 pm

    David, thanks for your response. I can see how this could be confusing but the principle at least, is clear. If you create it, it’s your creative expression, you own the copyright (except, as David notes, where some other contractual arrangement exists). Thanks for the question, BJ, I’m sure that clarified this issue for others as well.

    Reply

    Brett Tomashek May 21, 2010 at 5:14 am

    I am an American working for Saudi Arabia’s King Saud University (KSU), and I’ve been asked to explore ways to improve the University Website’s English language news reporting (quality, procedures, etc.)

    As many notable American professors and researchers are visiting KSU these days for lectures and conferences, I am in constant need of photos for articles announcing their upcoming appearances.

    Do head shots from their university Websites or research organizations fall under “fair use” for an article on our news portal? It seems that, in our case, posting an article with a head shot would pass the Four Factor test…

    ksu.edu.sa
    enews.ksu.edu.sa

    Thanks,
    Brett Tomashek

    Reply

    Joel Friedlander May 21, 2010 at 2:44 pm

    Hi Brett,

    Thanks for your question. Rights to photographs would ordinarily be held either by the photographer or, if their arrangement specified, with the subject or one or the other of their employers. Since we can’t know these arrangements, it’s safe so say that they are protected.

    On the other hand, it’s probably “common practice” for people to use photos like these that are, after all, intended for publicity purposes. If you used my photo to tell your 100,000 friends what a great guy I am, I probably wouldn’t protest. But keep in mind that the photos are protected—someone owns the rights to them.

    I won’t venture an opinion on the “four factors” test because the answers David has given above sometimes are surprising.

    Thanks for being part of the conversation.

    Reply

    Heidi Meyer July 12, 2010 at 1:39 pm

    I am in a computer class for teachers. I am trying to find out if I can use a picture of the cover of a book on voicethreads (or a similar site) so students can comment on a book?

    Reply

    Joel Friedlander January 20, 2011 at 1:40 pm

    Yes, it’s fine to use a picture of the cover of a book Heidi.

    Reply

    Becky Patton October 28, 2010 at 8:00 am

    Have read through everyone’s helpful comments and questions. Thank you for publishing this. Have a couple of questions in different areas.
    FIRST QUESTION:
    Getting ready to self-publish my first book and have quoted various authors, but none above the % allowed by “fair use” so I think everything falls under the guidelines. Have not requested written permission from everyone, because it is not more than a couple lines from any that I am publishing.
    1) Should I seek all in writing?
    SECOND QUESTION:
    One publisher that I requested permission from (for three quotes) only has rights to the U.S. & Canada for the book that I have quoted. My quandary is that they are not releasing permission for an E-book format.

    2)Wondering if you might have suggestions for how to navigate this? Are their others ways of seeking the permission to have it be electronic?

    It seems that this would be essential considering the day and age we live in. Would appreciate any thoughts you might have.

    Reply

    Joel Friedlander January 20, 2011 at 1:42 pm

    Becky, usually you have to tell the rights holder what use you want to put the work to. So for ebooks, you should state that in your request. To my knowledge, there is no “percentage allowed by fair use” please read the article for the “four tests” instead. Hope that helps!

    Reply

    Matthew Rings January 20, 2011 at 1:23 pm

    I want to use some images of James Bond in a book I’m writing. When I go to find the copyright owner, I don’t know where to begin to contact them. I come across several websites that have legal disclaimers like these
    http://www.jamesbondmm.co.uk/legal
    http://www.mi6.co.uk/sections/interact/copyrightnotice.php3
    And I get confused.
    Can I use the images I want and in the appendix just put all the info that the copyright belongs to them? Or do I have to contact them to get their permission?
    I see pictures in magazines that have images and they have the copyright printed on the image. Is that all it takes to use an image or did they hunt down the owner of every image they use?
    Thanks

    Reply

    Joel Friedlander January 20, 2011 at 1:44 pm

    Matthew, you cannot just use other people’s property without their permission. The photos of James Bond are all owned either by the James Bond estate or the makes of the James Bond films. The reason people show a copyright with pictures printed in magazines is because it’s usually a condition of allowing the publication to use them. And yes, the magazines hunt down the owner of every image they want to use and obtain rights, or they do not use them. Hope that helps.

    Reply

    Matthew January 20, 2011 at 1:51 pm

    Thanks! You are the Man! (you have my permission to quote me on that :)

    Reply

    Henrik February 15, 2011 at 10:35 pm

    Hi,

    Interesting piece and very interesting comment. A minor correction to the article. You mention ‘Jyllens Posten’ as publisher of the Muhammed Cartoons. Although I know what you mean the name of the paper is not correct. It’s called ‘Jyllandsposten’ instead. Jylland is the most western part of Denmark.

    Again, thanks for the very interesting piece.

    Reply

    Joel Friedlander February 16, 2011 at 12:53 pm

    Thanks for the correction, Henrik, I’ll pass it along to the author of the piece.

    Reply

    David Amkraut February 16, 2011 at 2:20 pm

    Thanks to Henrik for the correction on JYLLANDSPOSTEN. In mitigation, I should say that I have visited Denmark and enjoyed seeing the Little Mermaid, Tivoli, and a ferry trip to Oslo.

    Reply

    Henrik February 16, 2011 at 10:14 pm

    You are welcome. But I can also understand why you wrote Jyllens instead of Jylland, because they sound very much alike when spoken. And you must have noticed when you visited that Danish is a very hard language to understand. I’ve heard comments saying it sounds like we are coughing when we speak :)

    Sincerely,
    Henrik

    Reply

    kay March 3, 2011 at 8:49 am

    Hi Joel,
    I found your info very helpful, as I was cautious to even quote a song or name of a book.

    I am quoting the “Logical” song by super tramps, and name of a recent popular book in my book.

    where should i go to ask for permission to include these?

    thanks,
    kay

    Reply

    David Amkraut March 3, 2011 at 12:09 pm

    You don’t need permission to quote the title of a book. Book titles are not copyrighted.

    I am unfamiliar with the “Logical” song or the “super tramps,” but quotations from songs would be governed by the rules of fair use. That is the legal answer, and it is impossible to hazard further comment without knowing how much material will be quoted and the uses to which it will be put.

    The practical answer, in contrast to the legal one, is that many music owners are extremely aggressive about protecting their material, threatening and suing over even incidental, partial or trivial quotations, so you may wish to contact the publisher or rights owner.

    Reply

    Kay March 3, 2011 at 3:31 pm

    Thanks a lot David for your response. I contacted Khaled’s agent and she confirmed what you said about quoting Kite Runner name only.

    on the logical song, I found out that Roger Hodgson owns the rights to it as he was the original writer, even though he was w/ the Supertramp band.

    I am quoting this whole lyric and just stating how my childhood years felt like how these lyrics talk about our innocent childhood years. I am also stating who the owner of these lyrics is.

    Regards,
    Kay

    Reply

    Lee March 8, 2011 at 11:57 am

    Hi,
    It is okay to quote from the Bible and do you need permission to paraphrase a similar concept from another book?

    Reply

    David Amkraut March 8, 2011 at 1:35 pm

    Bible question: The Old and New Testaments were not protected by copyright when written, and therefore you may freely quote the Aramaic, Hebrew, or Greek.

    Translations such as the King James version are long since out of copyright, if there ever was one, and may be freely quoted.

    “Modern” translations may be protected by copyright, depending on when they were written and other factors.

    “Paraphrasing a similar concept from another book” question: Central to copyright law is the point that ideas and concepts can not be protected by copyright; only their specific expression can be so protected. Thus you can express a similar concept or idea in your own words. Exactly how much you have to paraphrase in order to avoid infringing, is a case-specific question.

    Reply

    Joel Friedlander March 8, 2011 at 1:55 pm

    Thanks David, for handling these inquiries.

    Reply

    Tony Cartledge May 8, 2011 at 6:23 pm

    Many thanks for your invaluable information, David. I wonder how one would proceed with a self-published book that contains nothing but quotes from others, ie. an anthology of quotes. I have seen some (from major pub houses) that include copyright info and permissions but I am sure I have seen others that don’t. Could one produce a series of anthologies that include the attribution but not the source in which it appeared? My idea is to produce a series from spiritual teachers to inspire others, but not if it lands me in a legal sink-hole.

    Reply

    David Amkraut May 8, 2011 at 7:46 pm

    I am still in shock over the Lakers’ shocking loss to Dallas, highlighted by the ejection of two Lakers for flagrant fouls. However, with the usual cautions that is a general comment and I would have to see the specific work to offer legal advice, and speaking with a broad brush:

    Reply

    David Amkraut May 8, 2011 at 8:19 pm

    I am still in shock over the Lakers’ loss to Dallas, highlighted by the ejection of two Lakers for flagrant fouls. However, with the usual cautions that this is a general comment and I would want to ask some clarifying questions and would have to see the specific work and get an idea of what are considered brief quotations to offer legal advice, and painting with a broad brush:

    First, many of the most reproduced quotations would either never have been under copyright, or would be long since out of copyright, e.g. Buddha, Moses, Jesus, various popes, Bible, Luther, et al.

    Second, as to brief quotations: here is what the Copyright Office has to say:

    “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 1. FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.

    Third, it is hard to find cases of anyone complaining about brief quotations, let alone suing over use of them in the kind of collection you describe.

    Fourth, each of us might differ on what we consider a “brief” quotation. “Make my day…” (Dirty Harry) or “I’ll make him an offer he can’t refuse” (Godfather I), if reprinted, are unlikely to cause the reprinter to be bothered. Long passages of dialogue are a different matter. In between these poles is what lawyers get to argue about, or law students argue about in moot court.

    Fifth, if any of the fair use factors are present, they would help protect the use. The idea of fair use, after all, is to encourage activity like criticism, commentary, satire by allowing the writer some breathing room.

    Sixth, as a practical matter rather than a legal one, I (like you) have seen lots of books containing hundreds or thousands of quotations, some of the quotations still within copyright. I doubt that these publishers have gone to the trouble of trying to track down the rights holders of every quotation to seek permission. For the particular project you describe, also, perhaps a spiritually evolved person would be less likely to resort to law courts…

    Attributing the author but not crediting the source book: crediting the source book would not protect you from liability, nor would declining to credit the source book create liability where there otherwise is none. This question is often asked in an academic context, but one must not confuse copyright violation (using someone else’s creative work without license) with plagiarism (failing to credit someone else’s work and using it as your own).

    I hope these comments are helpful.

    Reply

    Tony Cartledge May 9, 2011 at 1:52 pm

    Absolutely. I can’t thank you enough for taking the time to answer my queries in such detail. It certainly has put my mind at ease. Most of the quotes are less than three sentences, with the majority being just one or two. Thanks again.

    Reply

    Katrina Dorsey May 23, 2011 at 5:28 pm

    Good Evening,
    I am an up an coming writer. I’m currently working on a book and I have read some of the previous comment’s in regards to using quotations.
    I guess what I’m trying to ask is if I was to use a quote from a cartoon charactor, or any other source to make an example whould I have to get permission from all in which I have used paticular quotes.
    The book that is being written is based on my own opinon’s and views. I just don’t want to get caught up in the whole thing of being sued once it has been published.
    Can anyone assit me with answering that question. Thank You

    Reply

    David Amkraut May 23, 2011 at 7:00 pm

    See my comment above in response to a similar question about using brief quotations. Again, the issue is what you mean by “brief.”

    Reply

    Christine Rabah July 23, 2011 at 10:40 pm

    Thank you Joel, for your explanations that have put my mind at ease.
    All I need now is find the time to write and remember all the good advice, then start contacting the subjects of my many pictures who live in Timbuktuuuuu!

    Reply

    Kay July 24, 2011 at 9:05 am

    Hi, I am also a first-time writer. I have quoted Supertramp’s Logical song – the first section of it, and have listed the writer of the song. I am pointing to this song on how it brought-up my own magical childhood experiences.

    Additionally, I have listed other artists’ song titles, along w/ their names, in other areas of the book. These are listed by me to comment on different times of my life that I played their songs for they had relevance to where I was in my development.

    Would I need to get permission from any of the two cases above?

    Thanks,
    K

    Reply

    David Amkraut August 17, 2011 at 11:40 pm

    KAY’S questions: As to Supertramp’s Logical song, fair use is fact specific. Important here is how much was quoted. Also, as a practical matter, whether the rights holder is pleasant or aggressive about protecting its intellectual property. See my longer discussion in response to questions about fair use and Supertramps, the Bible, a quotations book, etc.

    As to the second case, publishing a list of song titles and artists, along with comments on their meaning at different times of Kay’s life, raises no copyright issues. Song titles can not be copyrighted. The artist’s names can’t be. There is certainly nothing wrong in listing them together. Discussing their relevance in Kay’s life is certainly not objectionable.

    Reply

    Jewels Prophet August 17, 2011 at 6:03 pm

    THANK YOU! Very useful and clarifies much!

    Reply

    Kay August 23, 2011 at 7:12 am

    Thank you very much David for your response on this. I will look up the earlier ones you mentioned as well.

    Regards,
    Kay

    Reply

    Jennifer September 12, 2011 at 1:30 pm

    I was wonder if you happen to know the copyright issues around
    creating a book of quotations. I want to put together a collection of
    inspirational quotes with a certain theme. Mostly just one liners It’s not just compilation of quotes, but the quotes are used as examples. Do
    you think that would fall under fair use?

    Some of the quotes are from before 1923 and are therefore public domain, but othersare current. Would I have to get permission from each copyright holder of the latter because it is being sold for commercial purposes, or do you think each quote short enough for fair use? It would be for positive purposes, so the likelyhood of trouble is lowered, but would it actually fall under fair use?

    Thank you for any tips you can provide.

    Reply

    David Amkraut September 13, 2011 at 12:28 pm

    Re: Jennifer’s question:

    On May 8, 2011 I responded to a similar question about collections of brief quotations, and I hope you’ll find that response instructive.

    In addition, here Jennifer’s point that the quotations are used as illustrative examples in the context of discussion would be a good point supporting fair use, because the purpose of fair use is to encourage discussion, comment, etc.

    Reply

    Harry October 30, 2011 at 8:33 am

    Great article!

    i have 1 question, if like say the teacher purchase storybook on sale local mall bookstores and copy all the entire book and make a 22 copies then pass to all student and filed it in cabinet and uses one of the story from time to time and also he made copies for the whole class so each child can read, is it a fair use?

    Reply

    Denise November 9, 2011 at 10:38 am

    I am writing a book about using games to teach math. Many of the games I use are old folk games or adaptations of traditional games, so those would have no copyright problems. But I would also like to include several newer games, such as Sprouts.

    My question is: Is a game like this essentially an idea, which cannot be copyrighted? Of course, I would write up the instructions in my own style, not copying from any other source. Or is the game not essentially an idea, but something else, which does fall under copyright or some other restriction? Do I need to search out the inventor of any such game (or his heirs) in order to get permission to use it?

    Another question: What about a game such as Mastermind, which I assume is trademarked but is based on a much older game? My guess is that I could use a version of the older game, but I can’t call it by the popular, modern name?

    Reply

    Alfred Stites December 11, 2011 at 2:15 pm

    I sent my book to a formatter (who is in a foreign country) who also was to provide the cover. I paid in advance. After a month I received the “start” of the work including a rough draft of the cover. I did not like the formatting done and stopped working with the person. I liked the cover concept, however, and sent it to another formatter who used it. I had the book published. A friend recently put the cover under magnification and claimed there was a watermark on the cover art. There is. I don’t know where the art came from and I presume it is a photo from an internet source. What do I do now?

    Reply

    Percy Cannon January 19, 2012 at 10:08 am

    Thanks Joel for getting David to write the article and answer the several related questions.
    In my book I have quotes attributed to Ike Eisenhower, Confucius, Yiddish Proverb, Marcus Aurelius and Einstein. My sources have been different websites and newspaper articles. Is it safe to assume that those quotes don’t require any permissions? Sorry if I missed a similar question raised before….
    Thanks!
    Percy

    Reply

    David Amkraut January 19, 2012 at 12:12 pm

    Re: Percy’s question. Quotations from Confucius, Marcus Aurelius would not be within copyright in the original language. In theory, there could be copyrightable creativity in the translation into English, but as long as these are short quotations, I don’t think anyone would care or try to claim infringement.

    Yiddish proverbs are— well, folk wit and wisdom. It’s impossible to know who originally said them or wrote them down, and it was likely so long ago that copyright would be elapsed by now. If translated into English, same comment as for M.A. and Confucius.

    Eisenhower: short passages are probably no problem, especially if you are commenting on them (fair use and all that). Long passages— in theory could be a problem, in practice probably not, but it is really case-specific and I would not venture a guess unless I actually saw the passage and knew where and when it appeared and if anyone claims copyright.

    Still, unless the Eisenhower quotations are big chunks, it sounds unlikely that anyone would bother Percy over the use. That is not a legal statement but a practical, business one.

    There were similar questions asked in this thread earlier about compiling short quotations, and Percy and others who are interested might look at my response to that, also.

    I hope this is helpful, and Happy New Year to all.

    Reply

    Douglas Bonneville January 27, 2012 at 11:33 pm

    I have a good question: Do you need to get permission, say from Google or Apple, to use the word “Google” or “Apple” as the title of a book if you are not using their logo?

    I found this paragraphy at Google.com regarding trademark and it seems that you don’t need to get their permission. Say you want to write a book on “SEO and Google(tm)”:

    “Regarding cover art, you cannot use the Google logo (or the name ‘Google’ using our typeface) on the cover of a publicly-available book or publication without our permission.”

    That’s all it says, and conveniently, there is no contact information given.

    Thoughts?

    Reply

    Anna February 10, 2012 at 9:30 pm

    I have a question. In self publishing a self help book, would if be a copy right infringement if I summarized my knowledge in my own words? In other words, presented the ideas in my own voice. The thing is, my knowledge came from ideas I’ve read about and are mostly from books I’ve studied? Is this okay?

    Reply

    David Amkraut February 11, 2012 at 2:34 pm

    Re: Anna’s question. A fundamental distinction in copyright is that while specific expression of ideas is protected by copyright, ideas are not protected by copyright. Anna need not worry about copyright issues when she presents her ideas “in [her] own voice,” even though not all of them are original ideas.

    Reply

    Anna February 11, 2012 at 10:24 pm

    Thank you David! =)

    Reply

    Denise February 11, 2012 at 3:02 pm

    David, did you happen to see my earlier question about games such as Mastermind or Sprouts?

    I am still wondering: Is a game like this essentially an idea, which cannot be copyrighted? Of course, I would write up the instructions in my own style, not copying from any other source. Or is the game not essentially an idea, but something else, which does fall under copyright or some other restriction? Do I need to search out the inventor of any such game (or his heirs) in order to get permission to use it?

    Reply

    David Amkraut February 11, 2012 at 3:57 pm

    Re: games such as Mastermind or Sprouts…

    Having limited myself to chess, checkers and go, I am not familiar with games such as Mastermind or Sprouts. It would be irresponsible for me to hazard any legal opinions without understanding the games, their origin, and their copyright status, and seeing the discussion of them that Denise proposes to publish. Sorry.

    Reply

    Denise February 11, 2012 at 4:31 pm

    The games are much like chess, checkers, or go. They are logic/strategy games played on a piece of paper or with small stones. Both of the ones I mentioned as examples require only pencil and scratch paper.

    Mastermind is an old logic game that has been played under many names, but since the commercial version was released in the ’70s, most people whom I know call all versions “Mastermind” anymore. I suppose it is possible that the name is trademarked, but I don’t see how anyone could reasonably claim rights to the logic game itself.

    Sprouts is different, not based on any traditional game but invented from scratch by a mathematician in the ’60s. It has been spread widely in books, journal articles, and websites. Since this is a new invention, then if the concept of a game can be copyrighted (or protected in some way) — not the expression of how someone describes the game, but the actual idea of making three dots and then connecting them with lines according to certain rules — then this game would be protected.

    But CAN an idea like this be copyrighted? Or would some other protection rule apply?

    The descriptions that I would be writing are basic “How to Play” instructions, similar to these from my blog:
    Contig Game: Master Your Math Facts
    The Function Machine Game

    Reply

    David Amkraut February 12, 2012 at 12:23 am

    Re: Denise’s two posts.

    I would not offer a legal opinion without actually seeing the creators’ descriptions of the games and their rules and Denise’s proposed descriptions of the games and their rules. And without being paid. However, let’s look at it hypothetically as if it were a law school final exam problem, with hypothetical math logic games, and we poor students had thirty minutes to spot and discuss all the issues.

    First, one certainly can discuss the games by name. Just as you could discuss Rubik’s Cube by name or Monopoly by name. Although the names Rubik’s Cube and Monopoly would have been trademarked and RC patented (I presume) and Monopoly’s copyright registered. You can not put out your own version of a game using the same or deceptively similar trademark; you can not imply your work is from or endorsed by the rights owner; but you can discuss trademarked games by name. How else could you discuss them except by telling the reader what you’re discussing?

    One should be able to explain the rules in one’s own words. One should not just copy the rules explanation verbatim from the box insert or the creator’s web site. The same is true of discussing strategies in one’s own words, not copying from others. A strategy is a concept or idea; it is not protected by copyright, but its specific expression is.

    One should certainly be able to discuss how to use the games for purposes such as helping children learn mathematical concepts, logic, pattern recognition and visualization skills. Such discussion, as long as one is not copying other’s words, would be one’s own creative (and copyright-protected) work.

    In addition, one would evaluate the proposed actions in terms of fair use. Even if one were borrowing verbatim chunks of description from the originators of games, to the extent there would be copyright violation, there might still be a fair use defense that would excuse the borrowing. One would examine the facts of the particular borrowing, according to the fair use factors such as extent of borrowing, purpose, the marketplace effect of the copying, and other factors.

    I repeat that I am speaking hypothetically of hypothetical situations, not giving advice about these particular games and the particular things to be written about them. But I hope that my comments, though hedged, help one think about the issues. To offer Denise legal advice about the specific games and her specific writing, I would have to see her writing, or at least representative samples and ask appropriate questions.

    As an aside, as a practical matter this sounds like the sort of situation where the originators of the games might welcome Denise’s efforts and offer her their blessing and cooperation. One would think they should be pleased to have their games promoted and praised as useful for children.

    This is my last comment on the games questions— I can not offer legal advice online without reviewing the actual material— except to add that if children were taught chess, go, scrabble and mathematical games, we wouldn’t lag behind so many other countries in so many measures of academic achievement. I do not think Americans start off behind, e.g., Finns, Japanese, Singaporans and Israelis in mathematical ability. Denise’s project should be commended.

    Reply

    Alfred Stites February 12, 2012 at 3:18 pm

    Dear Joel:

    I could not find your answer to Anna – I have the same question.

    Is it legal to write (print) something in your book in your own words that you read somewhere – not knowing which book? Is it fair use to take a sentence from a book and rephrase it in my own words? The works being non-fiction.
    Thanks, Alfred

    Reply

    Joel Friedlander March 16, 2012 at 1:42 pm

    As long as you’re using your own words, your own expression of the idea, you should be fine, Alfred.

    Reply

    David Amkraut February 12, 2012 at 7:24 pm

    Re: Alfred Stites’ question above:

    Copyright does not protect ideas; only their specific expression. So, normally the answer to these questions about using other people’s ideas but expressing them in one’s own words, is “Yes” and “Yes.”

    Reply

    Pradhumn March 8, 2012 at 8:42 am

    Dear sir,
    Thanks for all the information you have given in this article.
    I have a question regarding my book. I am going to publish a book. In this book i have used some motivational stories which i have taken from various websites. I have given the reference of these websites in my book. So i just want to ask that is it right way to use others content in my book. Please clarify. Thank you

    Reply

    Denise March 8, 2012 at 9:14 am

    I just realized that I never came back here to say, “Thank you.” Thoughtless me :(
    Thank you, David, for your comments and encouragement. I really appreciate the help!!

    Reply

    David Amkraut March 8, 2012 at 2:12 pm

    Re: Pradhumn March 8, 2012 at 8:42 am

    ” Thanks for all the information you have given in this article.
    I am going to publish a book. In this book i have used some motivational stories which i have taken from various websites. I have given the reference of these websites in my book. So i just want to ask that is it right way to use others content in my book. Please clarify.”

    First off, giving the original source does not protect a person if he has infringed copyrighted material. All it does is confirm where he got it from!

    Second, like many other broad questions, the answer is that each situation is case-specific. One cannot give advice without seeing the original passages and the passages as used in the later work. Copying of brief passages may be OK as fair use, copying of longer passages or the whole story may not be OK. Revising the anecdote in one’s own words may be sufficient protection, because copyright, as we all know, protects not ideas but only their specific expression. In short, one would have to put the original and the subsequent use side by side to give a clear answer.

    In addition, the source from which Pradhumn obtains anecdotes may not have copyright rights to them themselves. They may be old stories, long out of copyright, or copied from yet other places.

    In general, the attitude many people take in situations like this is: rewrite the anecdote, shorten it, enlarge it, or change the wording enough so that one feels comfortable no one can claim he is “copying.”

    Reply

    Pradhumn March 8, 2012 at 7:30 pm

    Thank you sir for giving this important information.

    Reply

    Pradhumn March 16, 2012 at 3:13 am

    Dear sir

    I have a question regarding book publishing. I wanted to publish some books on some famous personalities and companies of India based on the data available on internet. I want to ask like i need to take permission from these companies or personalities about the content before publishing books.
    Please reply me

    Thank You

    Pradhumn

    Reply

    David Amkraut March 16, 2012 at 12:42 pm

    Pradhumn March 16, 2012 at 3:13 am

    I want to publish some books on some famous personalities and companies of India based on the data available on internet. I want to ask [if] i need permission from these companies or personalities about the content before publishing books.

    The question is vague about the “content” but the answer is to recapitulate the central distinction in copyright. Information and ideas are not protected by copyright; specific expression of information and ideas is protected.

    Therefore, if Pradhumn is taking facts and data from other sources, to use in his own work, he can do so freely. It is his editorial decision how much to acknowledge his sources.

    In contrast, if he is taking expression from other sources, one has to do a closer analysis, comparing the original source material with Pradhumn’s work, in terms of the fair use factors (discussed in my articles and in many places online).

    Thank You

    Pradhumn

    Reply

    Pradhumn March 16, 2012 at 10:08 pm

    Thank you very much for all the information.

    Reply

    Christian March 16, 2012 at 7:47 am

    Hello,

    I’m in the process of writing a book on teaching the Catholoc faith to kids. I’d like to include a single image. It’s a black & white illustration which I found on Google Images; based on the style I believe was scanned from a Mass booklet from the 1940s or 1950s. I would love to pay for the use of the image, but can’t trace its source. Any ideas?

    Reply

    Douglas Bonneville March 16, 2012 at 6:40 pm

    What about using images in an editorial way? Does every image source used in a book (as opposed to on packaging for a product, or for resale on an image collection website or something like that) have to be granted permission, or can you use a photo to illustrate your point? Is that what “fair use” is?

    Reply

    Crystal April 17, 2012 at 7:29 am

    I am in the process of writing a cookbook that will be for sale. Throughout the book, usually on chapter headings or where there is a lot of blank space under a short recipe, I am using short quotes about food from people like Julia Child, Albert Einstein, Mark Twain, some Irish proverbs, etc. Do I have to get permission to use a one sentence quote that they wrote? Also, if I can use them, how do I cite them– being I have no reference as to which book, newspaper, magazine, etc. these quotes first originated? I have their quotes in quotation marks and their name beside of it. Is this ok? Thank you so much for your clarification. I am very confused on this matter.

    Reply

    Bible Bastard May 12, 2012 at 12:13 pm

    Thanks to David L. Amkraut for writing this article and Joel Friedlander for hosting it, and also for Mr. Friedlander’s “Top 10 Myths, Lies and Misinformation about Copyright” article. I’ve gained a clearer understanding of the fair use and copyright doctrines from reading these, and from your responses to different situations posed by other readers in the comments. Good of the two of you to have continued to respond here more than 2 years later.

    I’m hoping one or both of you will comment on my own situation, which has some aspects I didn’t see discussed; your responses may be of benefit to other readers as well. I can see how the copyright holder could make a case for infringement if I don’t get permission/agree to their terms, but I’m wondering how my arguments that it’s a fair use case might stand up against a copyright claim, and if there are any other arguments that could be made that it is fair use.

    My issue: Using one of the Psalms from a modern Bible translation as the lyrics in a song of original music: fair use or copyright infringement?

    Purpose and character
    * Critical, artistic commentary: My choice of psalm and punk style of music/singing is intended as a critical commentary on dogmatism and hypocrisy in religion while expressing my own faith in God in an artistic way. However, the critical aspect is most clear when the song is listened to in context with the other material on the album, as in the recording of the song I don’t add critical commentary in my own words. I wouldn’t view it as critical commentary on the translation, the author, or the psalm itself, though.
    * Educational: To raise awareness/educate the public about this Psalm, the Bible, Jesus, religion, hypocrisy, dogma. To provoke reflection and discussion.
    * Transformative: The psalm is a passage from the Bible, which, in the Christian tradition (afaik), has only been used for study and preaching and has not been set to music or sung as a hymn. I’ve made a couple small alterations to the text (to make it more lyrical), set it to my own original music, and sung it in my own punk rock style.
    * I am planning to donate at least 50% of net album and song sales to charity, but am also considering donating 100% of net, or making the material available for free. If donating 100% or making everything (or the one song) available for free would bolster a fair use defense, I might be more inclined to do this.
    * Some may find my rendition and the album to be offensive, and I’m concerned that the copyright holder may refuse permission, which I would consider to be an example of the hypocrisy I criticize. Also, according to some information, the copyright holder and publisher are inclined to extend use permissions only for limited time periods, after which permission must be sought again, meaning I might only be able to legally distribute my work for a limited time.
    * Is this a situation where I could obtain a “compulsory license”, as is available to artists who want to perform and/or record and release a “cover” version of a song, as long as they give the correct notice and pay royalties on the required schedule?
    * If the copyright holder and I come to an agreement on permission to use, how would their share of royalties from total album sales be determined? The royalty due would be clear in the case of sales of the psalm song, but it seems it would be difficult to determine how much of an influence one song had on sales of an album that contained 12 songs.

    Nature of the copied work
    The Bible is public domain; this translation is modern and under copyright.

    Amount and substantiality
    * Tiny portion of the Bible, but the entirety of the Psalm.
    * Less than 25% of the total lyric text of my album, but almost the entirety of the particular song (I include a short spoken introduction explaining the nature of the psalm).
    * Songs would appear as individual tracks on a CD or downloaded album, and this song could be distributed as an individual download.

    Effect upon work’s value
    *Minimal effect; listening to the song is not a substitute for reading the Psalm or hearing it read without music (or set to traditional music).
    * Will not compete with the sales of this Bible translation.
    * Unlikely to cause sales to fall off due to causing people to become disenchanted with this translation.
    * If song has any appeal, it will most likely be to a niche audience not currently interested in the Bible or this translation; conceivably, it may cause some to become interested, and purchase a copy.
    * The album itself may generate controversy, and this song/psalm rendition may be part of the controversy. Controversy is not likely to be generated over whether use of the translated psalm was fair or not, unless copyright holder makes an issue out of it. In any case, controversy would lead to increased attention on the translation and my song, which would probably only help sales for both, and not harm sales of the translation.

    Reply

    Corey May 24, 2012 at 11:09 am

    I’m an amature writer and love to write fantasy books. I have a charcter idea that would require the use of the cards of the copyrighted card game “Yu-gi-oh” and I’m not sure if that would be considered fair use. It would be for commercial use and there would be a substantial amount of use of the cards. But it would not be competing against the card company.

    Reply

    Joel Friedlander May 24, 2012 at 11:24 am

    Corey,

    Since the cards are most likely the intellectual property of the company that created them, you’ll need to get their permission to use them.

    Reply

    Stephen June 11, 2012 at 3:44 am

    To Bible Bastard:

    The site biblegateway.com under the section called versions lists copyright information for many versions including the publisher, what they will allow you to do and how to acknowledge the use of their material.

    Reply

    Rob July 6, 2012 at 2:29 am

    What if I take a famous photo, and DRAW it. It will be slightly different but mostly the same. I assume this would circumvent copyright law? And what about quoting very famous people such as Thomas Jefferson to start a chapter? Thank you…
    Will you respond directly to me email as well please, as I may not get to read your response if posted here.

    Reply

    Joel Friedlander July 6, 2012 at 10:07 am

    Rob,

    You are free to quote Jefferson all you want, because his writings are no longer protected by copyright and are now in the public domain. If the “famous photo” you refer to is protected by copyright, your drawing of it would be considered a “derivative work” and would be a violation of the original copyright if done without the owner’s permission.

    Reply

    Mikell July 15, 2012 at 9:57 pm

    Wondering about copyright photos. I have an online store. In some of the photos that I currently have on my website, there are famous book covers as the backdrops for my items. The books are not for sale, but is having them in the photograph a violation of copyright? For example, I have a harry potter book behind one of my necklaces. The listing is just for the necklace, but do I need to remove the book?
    ~M

    Reply

    KarenT August 30, 2012 at 5:33 pm

    Just wondering started doing abstract art and would like to cut out and use single words or short phrases from magazines to paste across the art. Is this allowable or an infringement? Thanks

    Reply

    David Amkraut August 30, 2012 at 5:46 pm

    Re: Karen T.: As usual, I’d want to cover myself and say I’d like to see examples of Karen T’s artistic work. And this is a general comment and not individual legal advice, and all that, etc. etc.

    However, “single words or short phrases” are not copyrightable. If they are printed with enough creativity to allow a claim of copyright, e.g. a fanciful ornamented calligraphic visual depiction of a phrase, there could be a claim of copyright in that specific depiction. However, even then, it sounds as if each word or phrase is only a small bit of Karen’s original creative work. It sounds unlikely there would be a problem…

    Reply

    A August 30, 2012 at 11:58 pm

    I apologize if you’ve already answered this questions but it’s still unclear for me. I’ve written a book and designed the cover. On the cover I use a quote from a Billy Idol song, “…with a rebel yell, she cried, ‘More, more, more!’” I attribute the quote to Billy Idol as he wrote the song. The book is not for scholarly or other such purposes previously cited: It is purely for enjoyment. Is this acceptable or am I infringing upon his copyright?

    Reply

    destiny ruth obiakoeze September 10, 2012 at 7:19 pm

    This is something i have been thinking of late…i write on my blog and use my own photographs but there are times i do not have an illustrative one on my personal achive and need to find one on the internet.
    often,i attach the picture and caption the photogaraph with the link or an attribution…i feel i have given credit. please is there a beach with this?

    wondering..

    Reply

    BookerG September 19, 2012 at 4:18 pm

    I am creating a new translation of a portion of the Bible, translating from the Hebrew and Greek. But along with my commentaries and lexicons, I also make use of every English version I have as resources, both for accuracy and for ideas on how to make it more readable. If I occasionally make use of a word or phrase I found in the modern copyrighted versions, but only when the phrase is found in multiple, independent translations, is that still copyright infringement? Can a phrase be legally off-limits when the NIV, NASB and NKJV all use the same words? I saw your comment that “single words or short phrases are not copyrightable,” but if the NIV comes after me with a lawsuit, they’re going to count up how many single words and short phrases our versions have in common (and by the nature of translation, there are bound to be a lot, even if I never looked at the NIV).

    Reply

    Sumi Sevilla Haru September 25, 2012 at 3:46 pm

    Joel, my memoirs will be published next month. I am using the front page images of two Variety articles and have received permission to do so. After emailing The Hollywood Reporter twice, I have not received a response. The reason I want to use the images is because there is an article about my becoming acting president of Screen Actors Guild on the front page. Would this be considered copyright infringement?

    Reply

    Justin September 27, 2012 at 6:22 pm

    I haven’t seen anything here about using unpublished, uncopyrighted work that is kept in archives. Here’s the scenario. A few years back, I found material (diaries and journals) in a museum in another country that was written by a great-aunt of mine. I had the material photocopied and translated, and then I used THAT information with information I had from my grandmother’s diary to recreate the personal history of my ancestors, about which I knew nothing before I started my project. I quote my great-aunt directly several times: not only to I indicate it’s her voice directly in the text, but I also mention her in the bibliography and in the acknowledgments of my book, a memoir. My great-aunt has an heir, an adoptive daughter, and I have tried obtaining permission to use my great-aunt’s material both from her and from the museum where I found the material in the first place. I have received no response. After much thought, I decided to go ahead with self-publishing my memoir: the launch date is in a month. Would this be considered fair use? I should mention the memoir is in four parts, and I quote my great-aunt only in the last section.

    Reply

    Riggsy October 1, 2012 at 8:49 pm

    I have downloaded over a hundred photos of famous people via google and other sites for my fine art piece. The images are cropped and reduced to 3/4″ and are meant to make a new image when all placed together…a photomosaic if you will. Is this ok? I’m not selling hundreds of these, but they are original sculptural pieces using mosaic tiles and images on the internet.

    Reply

    Donna October 3, 2012 at 12:06 pm

    Was looking for a thorough explanation of fair use and copyright and am grateful I found it here. Excellent article. Easy-to-understand. Loved the scenarios. I get it!

    Reply

    Steven Emerson November 3, 2012 at 6:13 pm

    To Mr. David Amkraut,

    I would first like to express my sincere gratitude for such a fantastic and educational article. People pay good money for advice like this and I appreciate your willingness to share. I was hoping to run a quick question by you as I am about to publish my first book and I’ve been searching for the correct legal action regarding image usage.

    I am a certified tactical defense instructor and certified Israeli weapons and combat systems instructor, specializing in pistol/knife defense and realistic combative strategies. I am writing a book regarding Armed Home Self Defense (how to use your own firearm to protect yourself and family from a home invasion). I am using several real life cases, describing them, and teaching certain principles/strategies to prevent these tragedies from happening again. I have found some Booking Photos of the convicted parties and a couple Family Photos (of the victims) online in Wikipedia and also Enewspapers. I don’t intend on using any of the text or content from the newspapers, I will be writing my own unique content. But I really would like to have the images in my publication, to illustrate how normal and happy these families look, document real life history, unveil the monsters involved in the crimes.

    I apologize for the wordiness of the post, I just wanted to make sure I got you all the facts. Thanking you in advance, SE

    Reply

    Sebastian Brook November 24, 2012 at 5:56 am

    I am putting together a daily calendar for persons within a particular profession, gathering specific quotes of leaders, teachers and artists within the profession, so each calendar day has one quote. Some of the quotes I have found within other professional/historical texts. Since the author of the book did not say the quote, but merely recorded it, may I use the quote I choose under fair use? And if I do quote from an actual author/leader in the field (a short quote of less than 10 words) is this also acceptable under fair use?

    Reply

    Luke November 28, 2012 at 4:20 am

    Hi Joel,

    I’m almost finished writing my book and in the book I want to use certain famous people’s stories as brief examples. I am not going to copy the description from any other source, just writing it briefly, like 500 words in my own words, to make a point. I also wanted to use some quotes such as Henry Ford, Confucius, etc. What are your thoughts on this do I need permission or am covered because I am not directly copying a description that is already used on Wiki or in another book?

    Thanks

    Luke

    Reply

    Eric Morrow November 30, 2012 at 5:44 am

    Can I use the logo of a company like Google or Facebook on the cover of my book (along with many other logos) under Fair Use? Similar in concept (but hopefully a nicer design!) to this.

    http://www.amazon.com/Social-Media-Sites-Pinterest-ebook/dp/B009WC5UX4/ref=sr_1_1?s=books&ie=UTF8&qid=1354282994&sr=1-1&keywords=google+facebook

    Reply

    Barbara Hayes December 21, 2012 at 5:58 am

    Is it considered “Fair Use” for a substitute teacher to video a 16 year old drum student’s self created drum beats in public school and provide them to a third party to profit from? Background: My son is a learning disabled student who’s gift is his musical talent. He plays drums at school and creates his own music and drum beats. A substitute teacher gained permission from my son to video his drumming so that he can give it to friend who sells drum beats to professional musicians. He subsequently posted another video of my son on his personal blog used my son’s real name without my consent. Would this be considered fair use in that the adult had my 16 year old’s permission to video and post in his own blog that recognized this student’s talent? With regard to the other video he took, would it be unfair use in that he provided it to a third party who would possibly financially gain from my son’s talents? Do I or my son have recourse ?

    Reply

    D. Amkraut December 23, 2012 at 1:53 pm

    Barbara Hayes’ letter raises many questions. I will only touch on them here. To start with, it is doubtful that a 16-year-old, especially a learning-disabled one, had the ability to give consent of this sort. A parent’s or guardian’s signature would be needed. A court is unlikely to enforce such a “contract.”

    To start with, if Barbara wants the use stopped, sending a “cease and desist” letter on her son’s behalf, to the teacher and those who are using the material, should be enough to get the use stopped at once. Unless the recipients have very poor judgment.

    As for other remedies, I suggest she consult a lawyer familiar with copyright matters and right of publicity matters.

    (“Right of publicity” is the legal right to control the commercial use of a person’s image, name and other “indicia of personality.” However, the law on right of publicity varies from state to state. In some, the plaintiff’s rights are strong, in others weak, in others there may not be a right of publicity recognized at all.)

    Barbara might also consider (instead of telling them to cease the use), talking to the people using the videos of her son’s drumming about whether her son could make an arrangement with them to participate in the profits.

    Finally, I think the substitute teacher used extremely poor judgment in the whole affair and the school board would look at his whole “contract” with disapproval. Without knowing where this happened, I’d bet my bottom dollar his behavior violates the rules for teachers in a number of ways.

    I don’t know whether Barbara has discussed the whole matter much with the teacher, but she should figure out what she and her talented son want out of this, and act accordingly. To stop the use? To allow the use but not the name of the son? To allow the use but share in the hoped-for profit? Then chat briefly with a local lawyer about their remedies. Then talk with the teacher and website operator to explore a win-win solution…

    Reply

    Bette A. Stevens December 21, 2012 at 5:09 pm

    I am working on a book cover for my latest work. I would like to use an old family photo from the 1950s as a cover image. Can I use it as is, or possible scan it into a photo editor and make a few changes and use it?
    I’m a new writer and have bookmarked this site. Thanks, Bette

    Reply

    william gayton December 23, 2012 at 5:42 pm

    Can a researcher use an article for research purposes under “fair use”? Subjects would be asked to read material and indicate the extent they believed the conclusions. No other use of article.

    Reply

    d. amkraut December 24, 2012 at 10:03 am

    With the usual cautions, disclaimers and reservations, etc. etc., I’ll incautiously give my reflex comments. First, if one wrote to the publisher, I cannot believe permission would be denied. Second, looking at the fair use factors, doesn’t it look like they all favor the user rather than copyright owner? Third, what are the chances anyone would ever hear about the use, or care? Fourth, I haven’t done a search, but I have never heard of any copyright owner suing or even threatening to sue over such a use. Fifth, the exact procedure is not mentioned. If the tester is not making copies of the article for this use, but has simply bought a copy or several originals of the journal in which it appeared, or borrowed the necessary original(s) from a library or other owner, there is no issue at all; as the owner of the “artifact,” he can welcome as many people as he wishes to read it.

    That’s my off the cuff, shoot from the hip comment. It is not specific advice, the asker has not hired me, I have not researched it, etc. etc. Merry Christmas to everyone, and Happy New Year.

    Reply

    David Amkraut (author of the original article) December 25, 2012 at 12:03 pm

    With a question like Carrie’s, start by asking whether the underlying document is in the public domain. A few keystrokes of research reveal that “Twas the night before Christmas” was first published in 1823. Therefore, whatever the copyright rules were almost two centuries ago, that poem has been in the public domain “since the memory of man runneth not to the contrary.” Carrie may do as she wishes without fear that she is infringing anyone’s rights.

    Merry Christmas, everyone.

    Reply

    Carrie December 26, 2012 at 2:31 pm

    thank you for your response. I didn’t even think about how old the poem was (can you tell I am new at this?) But it makes sense. You’re reply also made me laugh…

    Happy holidays to you too!

    Reply

    Rafa December 26, 2012 at 8:32 pm

    Hi. I hope David can be of some assistance to me. I’ve joined with an author friend to self publish her work. We are in Malaysia and the forthcoming book is a Malay language novel. In the book, my author has quoted the first four lines from the Celine Dion song, “The Power of Love” when describing a dance scene between the two main characters (to show that the song was playing and the characters were dancing to it). Of course, Celine Dion is mentioned as the singer. Would that constitute fair use? Would I have to refer to fair use law as applied in the US or in Malaysia (since the book is published in Malaysia intended for the domestic market)? Would there be a change in the legal position if we decide to translate it into English and market worldwide? Thanks in advance.

    Reply

    David Amkraut December 27, 2012 at 10:09 am

    Rafa’s question: First, I am reluctant to comment on copyright law in foreign countries; it’s outside my area. I’m also reluctant to comment on the hypothetical situation of an English translation marketing to the English-speaking countries without seeing more. However, I will warn that many music publishers are hyper-aggressive about protecting their rights… Rafa can decide whether to bother contacting the publisher for permission, leave the lyrics out of the book because of trepidation, or just, in the immortal words of Perry, say, “Damn the torpedoes! Full speed ahead!”

    Reply

    Rafa December 29, 2012 at 12:42 am

    Thanks David for the reply. We’ve decided to remove the lyrics completely to avoid being ‘torpedoed’ later. Happy New Year!

    Reply

    Kilissa Cissoko January 31, 2013 at 3:14 pm

    There is so much excellent explanation of Fair Use on this blog. Great. However I still have not found exactly the answer to my question so I’ll toss it out to you myself.

    I’m writing an entirely original work for musical theater. It features all original music, lyrics and book. However, there are a few instances in the story that I would like various characters to quote popular songs. They don’t exactly sing the quotes. It’s more like they will only speak/sing the title phrase. No substantial part of the song is included other than that.

    For example… when suddenly realizing they will be stuck sleeping next to each other in the airport terminal one character mildly flirts with another saying, ” ‘Well, this isn’t exactly what they meant by, “Let’s Spend the Night Together.’ ”

    When the character offers to carry the other character’s guitar he says, “I always thought it would be fun to be a roadie.” and the other says, “Well, maybe you can drive my car.”

    Etc.

    I tried putting it through your point test:

    1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    — not strong for fair use… it’s a musical theater play intended for commercial production

    2) the nature of the copyrighted work;
    —I’m not sure about this one. The works quoted are well-established “hit” songs.. popular well-known songs… mostly classic rock radio hits. The new work is a totally original work for musical theater. The quoted work is not part of the music of the new work. Quotes are embedded in the dialogue and serve mainly as humorous banter and forge a small amount of dramatic connection amongst the characters. In that sense the quotes serve as cultural iconography. These are particular people in a particular place and time to know those songs in familiar. As well, the action takes place in an airport so the quotes evoke the steady stream of muzak piped into the terminal.
    I believe my work could stand on it’s own without the quotes and they are not particularly integral to the story itself. But I like them. It will take considerable effort and editing to remove them. Of course I would not want to excise them last minute so I’m doing the diligent research now.

    3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
    — strong argument for fair use… it’s a few small snippets of various songs in the context of a full scale work of otherwise totally original material. The amount included is only the title in the case of each song quoted. The melody and rhythm would be only vaguely interpreted by the character (eg, not sung in a “professional” manner… more like spoken conversationally or lightly hummed)

    and
    4) the effect of the use upon the potential market for or value of the copyrighted work.”
    – strong case for fair use… the new work would not threaten the viability of the market for the original work, and could even serve to call attention to an old song and make it known to a younger generation or a wider audience.

    Another thing that was mentioned is:
    Titles aren’t copyrighted (but perhaps could be trademarked?)… so is there a place to check that out?

    Ok. I really appreciate your thoughts on this copyright question. Thanks!!!

    Reply

    d. amkraut March 28, 2013 at 10:17 pm

    Re Kilissa’s question about musical theater, and quoting titles of songs or brief phrases— I think there is very little risk here. Titles are not copyrightable. The repeating of very brief phrases for humor, color, to make a point, … should come under fair use, if indeed those brief phrases are substantial enough to be copyrighted at all.

    It’s possible to overanalyze these factors. Some commentators would argue that what judges really do is eyeball the situation, decide what’s right, and then manipulate how much weight they give the fair use factors to reach the result they think is just.

    To be super-careful, I would want to see the whole script with the borrowed titles and phrases highlighted. Then I could pull on my beard and render a solemn legal opinion in big words. At an extortionate fee, of course. But on the description presented, I think this is a case of “no harm, no foul.”

    Reply

    Brendan March 19, 2013 at 8:09 am

    In Scenario 6, fair use applies because the use of the photos do not harm the rights holder and is for education and commentary.

    If I use a logo in a book about nutrition that puts the logo in a positive light and encourages the reader to buy the product is this fair use? Basically a collage of logos and mascots is in the planning. If it turns out looking more like art is that a different scenario?

    Reply

    John Weiler March 19, 2013 at 9:36 am

    Hi David and Joel,

    Thank you for the very informative article. I’m in the pre-planning stages of writing a book about breaking down the story conventions and techniques that are used in the Toy Story Films to tell a story. Basically I will be explaining why the writers wrote different things to illustrate a point. Would this be fair use? I’m commenting on a copyrighted material, but the main focus of the book would be about this copyrighted material (The Toy Story Films).

    Any comment is greatly appreciated. Thanks

    John

    Reply

    Tony Brasunas March 28, 2013 at 12:14 pm

    David,

    Thanks for the lucid article and explanations!

    I have a question. My forthcoming indy China travel memoir includes bits of a book by Herman Hesse (1877-1962). The narrator is reading the book while traveling through China. At several points throughout the text, there are quotations from the book, the longest of which is 81 words, as well as a sentence or two dedicated to paraphrasing the book as the narrator reads it. This amounts to (of course) a tiny tiny portion of Hesse’s text and a tiny tiny portion of mine.

    Would this likely be considered fair use?

    Reply

    Rob Bell April 11, 2013 at 9:20 pm

    I’ve written a book on giving and want to use some quotes from well known biblical authours to give weight to some areas of my manuscript.
    Would this fall under “fair use”?
    An example in my manuscript would read: Abrahams gave a Tithe of all the spoils of war which was the custom of his day.
    The Authors quote would read: In times of antquity the usual way to honour the deity that delivered the enemies into your hands would be to offer a tenth or tithe of the spoils of war.

    Thank You
    Rob

    Reply

    SJones April 15, 2013 at 7:38 pm

    Is it legal to pull quotes from newspaper articles and newscasts made by the subject of the book as a means of combining them to tell his life story? What permission is needed? The subject is a deceased sports hero and the quotes come from press conferences while he was an active player.

    Reply

    Paul April 15, 2013 at 9:25 pm

    No one has answered the questions about using words like “Apple” or “Google” in the titles and texts of the book. Is this fair use, provided you aren’t using the actual logo?

    Reply

    Fred May 7, 2013 at 2:16 pm

    This was a wonderful article. However, I have a question because I think my case falls somewhere between scenarios 5 and 6. I am a community college professor and am publishing a literary journal that has student writing in it. The journal will be free of charge. One of my students has written a commentary on sexism against women in advertisements, and she would like to publish this along with example photos that she found from Burger King and other fast food chains. Am I allowed to publish these copyrighted photos in the journal under Fair Use?

    Reply

    Susan May 7, 2013 at 3:25 pm

    In my novel I have used one line from a play that is under copyright. Do I need permission to use just one line?

    Reply

    Joel Friedlander May 8, 2013 at 10:03 am

    Susan, I can’t advise you on that, you’ll need to put your question to a copyright attorney, but note that very small selection of lyrics from songs can trigger litigation, so do proceed with caution. Why not write to the owner of the copyright and request permission? Might be the easiest alternative.

    Reply

    Ella May 16, 2013 at 1:06 pm

    Joel, I have a question, what does the law have to say about using a statement, or a saying, that you find in a store, on a plaque, online, etc. etc., that does not have a name or company attached to it? Would this be lawful to use for resale? Everything you are talking about has a name attached to it, what I am asking about, do not have names or a company attached. Short sayings, a sentence, a word or two, some serious and some slightly flippant – for commercial use.

    Reply

    Sebastian Brook June 6, 2013 at 6:30 pm

    Hi: I posted this before but did not get a reply so I hope it would not be too much trouble to answer my question if I post it again. I will be more specific this time. I am self-publishing a small, flippable, perpetual daily desk calendar for persons within a particular profession, gathering short, one-sentence quotes of leaders, teachers and artists within the profession, so each calendar day has one quote. Some of the quotes I have found within professional/historical texts, others on the internet, some from video/voice interviews. Since the author of a book I might use did not say the quote, but merely recorded it, may I use the quote I found within their book under fair use, and without citation? And if I do quote directly from an actual author/leader in the field from an interview or book (a short quote 10 words or so) is this also acceptable under fair use, without citation? Since I am creating this calendar to publish it and make money from it, the concern lies with the fact that I will be profiting from the use of these 366 quotes, and also the fact that I could not possibly reference each and every quote and still make a little desk calendar at all. I want to do this project but these questions have been holding me up for months. I would be so grateful if you could take the time to answer. Thank you so much.

    Reply

    Marcey June 8, 2013 at 3:02 pm

    Great article on Fair Use!

    I am writing a manual that supports the concepts a recently published non-fiction book (that book presents the premise… my manual is ‘how to steps’ …a guide book). I will use some of the terminology and credit the book and the author on basic concepts, but my activities and approach are my own. Will this fly? Would appreciate your opinion.
    Thanks!

    Reply

    cookies June 10, 2013 at 10:15 am

    Q: I am writing a book about the follies of a certain town government. Corruption, theft, trials etc. It’s an expose written by someone on the inside (me). I want to take the image of Alfred E. Neuman (used/owned ? by Mad Magazine) and put it inside the town seal for the cover image.

    I am so confused about fair use. Yes, I might make a small amount of money off this book. I don’t expect to sell a lot of copies.

    Is this transformative? Am I taking money away from Mad Magazine by using AEN? AEN is a composite of many faces already, not a real person. My book is not technically a parody (tells the truth but with heavy sarcasm) but it is very critical of elected officials and details their stupid acts and the results thereof.

    Do I have to get permission from Mad Magazine to use AEN in a photoshopped graphic?

    Comments? Thank you, appreciate the good website.

    Reply

    Joel Friedlander June 10, 2013 at 7:19 pm

    cookies, the likeness of Alfred E. Neuman is definitely covered by copyright and possibly also by trademark protection. My suggestion would be to consult an intellectual property attorney or write and ask permission before you publish.

    Reply

    cookies June 11, 2013 at 6:49 am

    Thank you for the quick reply. Appreciated.

    I will ask for permission and if denied, I will rethink what graphic I want to use.

    But that one … would be perfect. It sets the tone and pace of the written words inside.

    Reply

    cookies June 19, 2013 at 10:46 am

    Joel, 1 more Q if I may:

    If I take a picture of a home-made Pinocchio face I have and insert it into the town seal, am I infringing on Disney or anybody else that claims a Pinocchio ownership?

    Thank you.

    Reply

    Kit June 14, 2013 at 1:15 pm

    Question: I have just helped write copy for a website for the launch of a non-fiction book. The authors have asked me to include copyright tags to accompany the excerpt from the book that is on the website. I just don’t know how to format it correctly. I have checked my Chicago Manual of Style (newest edition), and there is no mention on how I might format a tag for a book excerpt electronically. This may seem like an idiotic question, but, do you know where I might be able to find this information?

    Thanks!

    Reply

    Elliott July 1, 2013 at 10:45 am

    Hi Joel,
    I’m considering writing a novel about Andrew Jackson. Obviously I will rely non biographies for story lines that I will dramatize. What are the copyright liabilities I would face?
    Thanks.
    Elliott

    Reply

    Joel Friedlander July 1, 2013 at 1:26 pm

    Elliott,

    If you are not copying the words themselves, you should be fine.

    Reply

    David Amkraut July 1, 2013 at 11:44 pm

    The question is so vague it’s hard to respond, but I agree with Joel. Ideas can not be copyrighted; only their specific expression. In addition, much of the writing about Old Stonewall is so dated that it is in the public domain. For works in the P.D., even specific expression can be copied, with or without attribution.

    Reply

    Elliott July 2, 2013 at 4:14 am

    Thanks! So I can follow Shakespeare’s lead and use the history to my heart’s content, so long as I use my own words.

    Reply

    Amy Buchanan July 4, 2013 at 12:20 pm

    I have 4 ebooks published under my own name on Amazon Kindle books. Last night I put advertisements for my published books on my own Google blog. I got an e-mail from google saying this is copyright material and I have to remove it. This is my own work and it is copyrighted by me, why do I have to remove my own copyrighted work from my own blog? Do I have a right to advertise my own published works on my own blog? Do I have to prove to Google in court that it is my own work? I am afraid google will go after me for putting advertisements for my own published works on my own blog. I also put advertisements for my published works on my Google + page. Should I remove these even though it is my own work before I get into trouble with Google?

    Reply

    David Amkraut (author of the original article) July 4, 2013 at 6:00 pm

    I am not aware of anything in the Amazon Kindle publishing agreement or the Google blog agreement that would bar an author (and copyright holder) from promoting his own books on his own blog. I suggest you closely read those two agreements. Then try to reach a human being at Google (good luck) to whom you can explain the situation. Everyone promotes their own works on their own blog! Sounds like a dumb computer algorithm that is causing irrational behavior by Google.

    Reply

    Benny Junko July 5, 2013 at 2:03 pm

    Thanks for the in depth description of fair use. Where does fair use apply to materials that are out of print and not readily available? Primarily, I’m speaking of self-published zines produced and circulated more than 25 to 30 years ago. While some can be found in the collector’s market (some at a premium) others seem to not exist at all. Where does fair use draw the line if one were to reproduce limited numbers of certain issues to make them available simply for the “real-time” comment/statements they had to make on various, contemporary pop-culture phenomenons? What if commentary was added around scans of the original pages? In cases where these items were never copyrighted, would fair use even come into play if the originator had no copies on hand, nor any intention of making them available? (You see this on “archive” websites often, but not so much in print.) Thanks.

    Reply

    dev July 17, 2013 at 6:34 am

    Can the title of a book be same as that of a song or film? Do I need permission to use that?

    Reply

    George Gouranga July 27, 2013 at 10:08 am

    Hi There, Thank you so much for your unbelievably great service.
    We are compiling writing books on Spirituality & and a book on Addiction, which includes some new Vedic info to help people; but we will sell them. our first..

    1. May i use a magazine article that is freely available on the internet – the magazine is not in print anymore, and the contact person there says he cannot give me permission nor tell me whom i can get it from? it is not necessary for me to use the article, other articles negate its necessity, but its a great for public education?
    2. There are other small quotations i can cite, do i need permission for these?
    3. We have asked for permission to some German authors, but i wrote in English, and they did not respond? may i use this info? also free on internet.
    4. For free public internet info, (not pictures) in general, could we just cite and use?

    G

    Reply

    David Amkraut July 27, 2013 at 11:22 pm

    Re: George Gouranga’s questions:

    This is not legal advice but just general comment. I have not seen the specific material Mr. G refers to. However:

    1. If by “use” he means copy without permission, no.
    2. The law says brief quotations are not protected by copyright, but one would have to see the quotations and how brief they are, to offer an opinion. If they are not so brief as to be excluded from copyright protection, one would still need more information to evaluate the use in light of the fair use factors discussed in my article.
    3. The general legal rule, which applies here, is that silence does not constitute consent. By “use” I assume the writer means “copy.” Perhaps try writing to Germans in German?
    4. I do not understand what “free public internet info” means.

    Reply

    George Gouranga July 28, 2013 at 2:19 am

    thank you for your response
    1. i mean use and cite source – i have asked for permission and they cannot help, the publication is discontinued?
    4. do we need permission for quoting free info from the internet?
    Regards,
    G

    Reply

    David Amkraut (author of the original article) July 28, 2013 at 10:26 am

    1. If a “use” constitutes copyright infringement, that infringement is not protected by citing the source. In academic writing, using without citation is considered plagiarism and is considered a big no-no. Copyright law is different.

    4. “Quoting free information from the Internet”: General copyright law and fair use principles apply. Titles, phrases are OK. Brief excerpts should be evaluated under the fair use factors. “Information,” if Mr. G. means facts, statistics, numbers, is not copyright protected, though its specific expression (e.g., clever graphic presentations of data) may be protected because of the creative element.

    Reply

    Lisa Libel July 29, 2013 at 9:10 am

    Hi David,
    I must say that you are doing a wonderful, wonderful job and I was such an ignorant person. I did not know that there were so many rules.

    I read all the questions and answers but there is still one thing I am struggling to guess. I have written a novel and several songs pop up in it. I am not quoting the lyrics. Safe on that front!

    I have decided to keep the name of the book as name of the song and it’s 40 years old. Is that allowed?
    Waiting for your reply.

    Reply

    diana rosen July 29, 2013 at 12:47 pm

    what is the fair use dictum on using quotes, such as from Bartlett’s or Barnaby which are frequently used. the quote would be used in a book for sale that is self-published. isn’t there a 250-word limit on quotes from previously published books?

    Reply

    Raine Wicks August 1, 2013 at 9:48 am

    Joel, interesting and helpful article. I have a question that isn’t really related to copyright, but it’s close. I want to write a book about one aspect of a famous place that was in private hands and created privately about a 80 years ago. Do I need permissions from present owners/family? Numerous articles have been written about it and I’ve written some myself, but is permission required to to a book? It’s still the written word, full book or article. I’m probably over-thinking this.

    Reply

    Kerry Gans August 3, 2013 at 8:50 am

    Great article, David, but it does not address the issue I currently have. I am creating a cover for a short story I am putting up for sale. In the story, a KinderGlo Angel plays a vital (and heroic) role. I would love to use the KinderGlo Angel on my cover. I took the photo myself, so that is not the issue. The question is if I can legally use a Trademarked object on my cover. I have asked around and no one seems to know. Some say Fair Use, some say no. I am trying to find a definitive answer so I can move forward with the project.

    Thanks!

    Reply

    E.Peters August 6, 2013 at 7:54 pm

    Thanks for the article it was informative. I do have a question just to be clear. I want to compile a book with sample meal plans and recipes that I found online posted on websites and national organizations. What would I need to do in order to do that? Some of the stuff is just on random personal sites. Would I need to get permission from them to?

    Thanks

    Reply

    David Amkraut (author of the original article) August 6, 2013 at 10:56 pm

    A mere recipe itself is not protected by copyright, but the manner of expression can be, if there is some creativity in it.

    The Copyright Office itself has addressed the issue of recipes, and says: “Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

    Only original works of authorship are protected by copyright. “Original” means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work.

    For further information about copyright, see Circular 1, Copyright Basics. Note that if your recipe has secret ingredients that you do not want to reveal, you may not want to submit it for registration, because applications and deposit copies are public records.”

    Reply

    E. Peters August 7, 2013 at 6:22 am

    Thanks so much for a fast reply! I sooo glad I found this site.

    Reply

    Matthias Kranke August 7, 2013 at 8:45 am

    Dear David,

    Thanks for your article.

    Would copying an entire book for personal reading without further distribution (and later maybe using its main idea in a publication) fall under “fair use”, including keeping a digital copy of it?

    Best wishes,
    Matt

    Reply

    Ro Delima August 27, 2013 at 12:49 am

    I am glad you write this very informative article. The four factors are very helpful in deciding what falls ‘Fair Use’, while the scenarios clearly differentiate interesting cases about fair use policy. Although I am sure that the blog i am planning to publish can be categorized as fair use, but i think it would be better if i ask you to clear the matter.
    I am planning to write a blog about how i solved the math problems from books written by known authors. To do this, i need to copy the word problems in the book, but nothing else since the derivation or the solutions are not found in the book. My blog will be educational and will be published in blogger soon. Therefore, I can claim Fair Use. Am i right?

    Reply

    Oliver September 1, 2013 at 6:24 am

    Great article.

    So, just to confirm, if I had a blog, and I found some doctors quotes from another website…as long as I change it’s format slightly (transform it), I could write a blog post as long as the quotes/facts were brief?

    PS, would I be able to add affiliate links to some products on the same blog post, and would this still be fair use, despite being slightly, ‘for commercial reasons?’

    thanks for the clarity;-)

    Reply

    Karen Kalwaic September 1, 2013 at 12:12 pm

    I want to take the title of a song-”This Glorious Food” and use it as the name of a community choir. Yes I charge by the semester for participation in the choir. Thanks for your attention to this, Karen Kalwaic

    Reply

    Donna Haney September 5, 2013 at 6:02 am

    A publisher wants to use a family photo for a book. I send him right to use form along with price to use photo. He publishes book before he pays, even though the release form says he must pay in full first. what should i do? He still has not paid in full and I am almost certain he has already printed it.

    Reply

    BARRY JUDD September 10, 2013 at 3:07 pm

    DEAR SIR,
    I JUST COMPLETED A BOOK ON MY OWN
    AFFIRMATIONS.
    WHAT IS THE BEST WAY TO PROTECT ,CAN I COPYWRIGHT IT?
    THANK YOU

    Reply

    Simon September 19, 2013 at 1:27 am

    Thank you for that extremely interesting and insightful article. If it is not too much trouble i have a question, I am in the process of writing a Business English textbook and would like to include a section on company comparisons. My idea was to include Company Logos and have students discuss their attributes and so forth. My question is, can i use these logos without permission or must i receive permission from the relevant company?
    I think i know the answer but would really appreciate some clarification.
    Thank you in advance

    Reply

    Jenny September 23, 2013 at 7:14 am

    Hi

    I’m a crafter and sell my goods at fairs here in the UK. As part of my display for selling hearts, I quote a line from a song – I have the singer and the writer’s name displayed clearly.
    Am I in the wrong?

    On another part – I am looking to use a quote on some packaging for a ring. Quoting from Lord of The Rings….again I have made full acknowledgement of J.R.R. Tolkien. I suspect I would not be Ok with this one as the packaging is taken away by the customer.

    In both of my situations though the quotes are aiding my sales – therefore they could be considered as using them for money????

    I am worried about this but I see people all the time at fairs selling works with quotes from famous songs, or books etc…and they don’t even acknowledge the authors.

    However, I, unlike some I see, would like my business to be legit and legal !

    Does all you’ve said mean the advice I was once given – “anything over 70yrs old or 50yrs after persons death can be used with no problem so long as you acknowledge where it came from” – is total utter rubbish!

    thanks for any advice.

    Reply

    David Amkraut (author of the original article) September 23, 2013 at 11:55 pm

    Re Jenny’s questions:

    1. I am not familiar with UK law and whether it has the equivalent of U.S. law’s fair use provision.

    2. If there is a fair use affirmative defense under UK law, any responsible attorney (pardon me, solicitor?) would need to see the actual quotations and the ways in which they are being used before offering advice.

    3. If I did not make it clear in the original article, let me emphasize that my discussion addressed only U.S. law. Copyright law differs from country to country.

    Reply

    Mir September 25, 2013 at 12:06 pm

    I’m putting together a book on quotes.

    I’ve done a lot of research and gotten most of my information on the internet.

    I’ve also gave the original authors credit right after the quote.

    If I go around and get permission, It would take me more than a year since the book is over 1000 pages long.

    The book will be available for sale on Amazon.

    Does anyone know the rules of using quotes?

    On these website it doesn’t say that the quotes are copywritten.

    Reply

    Pat October 1, 2013 at 3:19 am

    I read the original article because I was interested in the subject. It was very interesting and very informative.
    I was amazed to see that David was still returning to answer questions three years after the first post.
    What a gentleman!

    Reply

    Patrick October 12, 2013 at 1:16 pm

    David:

    I have recently written a historical novel and am looking to self-publish it. According to this link from the U.S. Copyright Office, http://www.copyright.gov/circs/circ15a.pdf there are a number of potential terms regarding copyright, and if it is a joint work by two or more authors for hire, then the term is 120 years from creation.

    Aside from having no idea how to determine just from the citation of a book whether it was done for hire or not, that length of time will I presume cover most of the versions of the books I would be quoting from (and 70 years from the author’s death could be just as long or longer).

    98% of what I am excerpting in my historical novel is biblical quotes and quotes of works from the Early Christian Church fathers in the first few centuries A.D. ALONG WITH a few gnostic texts that are also ancient but not part of the Bible proper. According to what you say above, all these texts should be free to use, including even new English-to-English versions, but any TRANSLATION written in the last 120 years or maybe even longer would be infringed unless I get permission to quote, right? (And these excerpts are frequently a page or even a couple pages in length, often broken up into a few sections.) Also, I would imagine that translation may very well often be a “for hire” endeavor, but I could be wrong.

    So, if I could find versions of the texts from 150 years ago I would be fine, correct? That is daunting, but seems like maybe the only way I can get by unscathed.

    Finally, I heard a copyright scholar once say that it really might be advisable to simply use something and footnote it with acknowledgment rather than formally request use from the owner, because if they refuse then the infringement is wilful. Can you give your thoughts on this, if you are able to?

    Thank you and I really appreciate any insight you can give!

    Reply

    Andrea October 16, 2013 at 6:18 pm

    I have a question in regards to copyrite infringment. I hope this is the right place. I apologize if it isn’t. Is it copy rite infringement if there are 2 books that have a similar theme but are told differently. The illustrations seem similar but are not exact, and the title of the story (books) is similar. I wrote and published a children’s book about a little girl who dresses up like a princess to play with her friends. Through out the story she is bossy and her friends stop playing with her. In the end she has no one to play with, then watches her friends and sees that they are sharing etc. She apologizes and they all play happily ever after. Another self published author is claiming I copied her title (mine is similar but not exact), we both wrote in poetry, Her child drew the illustrations and from what I can see without reading her book the characters change their appearance through out the book from having full arms to having stick arms. My characters have stick arms. The other author’s book is about an actual princess who bosses everyone in the kingdom, but a magician turns the tables on her and bosses her around. She is claiming that even my colour scheme is in her words “extremely analogous” along with my title, plot, characters, rhyming format etc… When I wrote my book it was about my daughter and a nickname I gave her. I had no idea this other book existed until I published mine. If there is ANY infringement it is purely coincidental. Any info would be greatly appreciated. I am trying to search and google any info I can.

    Reply

    Suzanne October 31, 2013 at 6:40 am

    Perhaps this is not the correct place to ask this question.
    Is it legal to write bout a person’s past without having asked for their permission. Then having done so, publish and distribute the book to everyone in their family?

    Reply

    nj November 4, 2013 at 1:32 pm

    A book inspired me to compose a piece of music and I would like to title the composition with a 3 word phrase from the book. I have not been able to locate the author for permission. This composition will be on a CD so there will be a profit (hopefully). Will this use be considered fair use? It does not complete since it is a piece of music but the phrase could be described as the “essence” of the book’s story.

    Reply

    David Amkraut (author of the original article) November 4, 2013 at 2:04 pm

    Of course questions like this are always easier to respond to if one knows what the book is, and the words of the three word phrase. However, let’s address the question in the abstract. As even literature available from the Copyright Office states, short phrases and titles are not protected by copyright. Therefore the issue of fair use (of material PROTECTED BY COPYRIGHT) does not even arise. From the facts given I have no information about whether the phrase is protected by Trademark, but it doesn’t sound as if it is.

    Reply

    Yvonna November 16, 2013 at 6:39 pm

    Here’s a question … I want to publish my own beautiful photos with other people’s inspirational quotes on them. Is this copyright infringement? My photographs, another’s words??

    Reply

    Penny November 19, 2013 at 5:53 pm

    I am writing and hope to publish a book that is a compilation of art activities that a teacher can reproduce for classroom use. If some of my information is on artists like Picasso or van Gogh, can I make a sketch of their work and include it as part of a worksheet for students? There are only about 4 or 5 of these small sketches that I want to include in the book of over 100 activities.
    Also on pop art I want to include some pop icons such as the mac apple – is that Fair Use? Thanks!

    Reply

    David Amkraut (author of the original article) November 19, 2013 at 8:41 pm

    As so often, when one is talking about images, it is more useful to show the original and the proposed use rather than describe it in words. “A picture is worth a thousand words,” and all that. However, on the facts given: van Gogh’s work is in the public domain by now and therefore freely usable. As to the other questions, it sounds like a good case for fair use, but I would have to see the proposed use before offering a legal opinion.

    One can also just look at this from a realistic, business risk sort of view: how likely is it, really, that anyone would sue over sketches like this?

    Reply

    Edward November 23, 2013 at 8:41 am

    I was looking to publish a visual history on the band Black Sabbath. I plan on listing all known footage of the band. If I create my own logo/font can I place their band name on my book? And talk about the band in general under fair use? I wont be using lyrics or anything of that sort.

    Reply

    F.Najafi December 1, 2013 at 10:25 pm

    Thanks Joel and David for the informative and helpful article.
    Hope you have time to answer my question: I want to teach a book of English idioms online. There are a few of the mentioned book on amazon, and they are used ones. The book is published in 1972 and 1974, and no recent publication for bulk sale. Would the online teaching of this book be an infringement of copyright rules?

    Reply

    Iren December 12, 2013 at 1:46 pm

    May I use photocopy of book jacket on a cake?

    Reply

    Kath December 20, 2013 at 11:03 am

    Hi. Good to have all this info. Thanks. In terms of the use of concepts and ideas does that mean I can make reference to the theories of other’s in my novel (naming the theorist) and be OK to do so. For example if I was to say ‘He realised that Hapgood’s theory of the shifting of the Earth’s crust was not taken seriously.’
    Also where music and musicians are concerned can I say Bob Dylan’s song ‘Twist of fate’. I have read that song titles are not subject to copyright but am not so sure now. Any advice will be great. Thanks.

    Reply

    David Amkraut (author of the original article) December 20, 2013 at 2:35 pm

    Re: Kath’s questions. Usually I hedge my comments, but what Kath describes is just discussion, not the sort of copying that might amount to a copyright violation. It is protected speech and does not violate anyone’s copyright.

    Reply

    Kath December 20, 2013 at 2:55 pm

    Thanks, David. Your advice is much appreciated. Good wishes Kath

    Reply

    abhi December 20, 2013 at 8:21 pm

    sir,
    i want to create a website related to some medical conditions like “what to do in flu” or “remedies for headache” etc. for this is it under fair use that use some informations from any book or website articles??

    Reply

    David Amkraut (author of the original article) December 20, 2013 at 10:27 pm

    On Abhi’s question: The question is so vague that one can only answer in broad terms. Copyright protects only the creator’s original expression. It does not protect information and ideas. If Abhi publishes information and ideas, without copying anyone’s specific expression thereof, he is not violating anyone’s copyright even if he found the information and ideas elsewhere. That’s called “research!” How else would someone write a book about remedies except by researching the subject?

    Also, the question confuses the issue of copyrightability with that of fair use. Fair use is a legal affirmative defense that says, “Even though I copied copyright-protected material, I am not liable because my copying is protected as ‘fair use.’ ” But information and ideas, without more, are not protected by copyright; only their specific expression is. Therefore the issue of fair use does not arise.

    Furthermore, because ideas and information alone are not copyrightable matter,

    Reply

    abhi December 23, 2013 at 10:46 pm

    thank u sir … this helped me a lot….

    Reply

    Patrick December 25, 2013 at 10:24 am

    Since I never had an answer from David on my post back in early October and he has answered many since that time, I concluded I was not going to get any response and decided to exhaustively hunt the issue down so I can figure out what to do. What I believe I have found that is irrefutably authoritative is that even in quoting at great length the Bible and works from the Church Fathers in translation (which David had said “may” have copyright issues – ?), and for that matter, any work under the sun, published before 1921 is in the public domain and completely safe, for anyone who is interested. Merry Christmas, all!

    Reply

    Joe Palmer December 28, 2013 at 12:29 pm

    I have a question about using copyrighted material in a book I’m working on but first, please allow me to give a little background that hopefully will make my question a little clearer. I am a guest columnist for a Florida newspaper (Fernandina Beach News-Leader) and I write a column called Cup of Joe that usually appears weekly or every other week. I’ve been writing my column for six years and have built up a pretty big clip file. The content of my column is usually humor – I consider myself a Southern humorist – but I also write columns that aren’t humor (death of pets, stories about the homeless, mentally ill, etc.). The paper doesn’t pay me for my columns but it works out great for me because now Cup of Joe appears in a couple of different publications owned by the same company. Consequently, I’ve developed quite a large following. Sometimes in my column, I will refer to a few lines from a song or a poem or film, in which case I always attribute the material to its rightful owner. I’m receiving a lot of requests from readers to put some of my columns in a book and publish it. I will begin this project after the first of the year. If I use, for example, John Lennon’s saying, “Life is what happens when you’re busy making other plans,” or a line from a Stephen King book in my column, is it necessary for me to seek permission from the author/artist as I prepare my collection of columns for publications or is okay just acknowledge the works in an acknowledgments section? Thank you.

    Reply

    Ken January 3, 2014 at 1:39 pm

    Hi. I’m writing a none fiction book on football and would like to use some quotes from famous people in the game. Would I need permission to use the quotes of these people at the beginning of each chapter? Any advice would be very much appreciated. Many thanks.

    Reply

    David Amkraut (author of the original article) January 3, 2014 at 2:17 pm

    Of course I should hedge any comment until I have seen the quotations, but the general rule is that short quotations are not copyrightable.

    Reply

    Jimy January 6, 2014 at 4:35 am

    Hello, I want to start a blog to sharing quotes by famous person, If I copied quotes from anywhere, Is there any copy-right? Please give me a clear idea.

    Reply

    pamela January 11, 2014 at 12:12 pm

    What about using a dictionary definition as reference in writing a book, or could you change the wording of the definition slightly. Thank you your help would be appreciated. Pamela

    Reply

    Daring Bhadais January 13, 2014 at 1:56 am

    Sir,
    I am compiling a “One year read through Bible plan” in excel format that shows how to read the Bible through in one year. I have not seen this on paper in book shops. I am in the process of copying extracts from compilations that reads “Outline of Genesis” etc etc to Revelation. My question: I want to know about the copyright to use those “Outlines” print and use those in my booklet.

    Thanks

    Daring Bhadais
    +27 83 608 5423
    +27 11 484-5320

    Reply

    Mike Jensen January 22, 2014 at 10:22 am

    Greetings!
    For one hr I’ve scanned the Q&A here, very informative, yet please bear with me if I’ve missed but… no one with a screenplay and fair use situation that I noticed, thus I decided to ask amid so many questions. I’ve written a motion picture screenplay about a 17 yr old girl as main character who is a very talented pianist and vocalist. There is no gratuitous violence, sex, or foul language… probably would be “PG13″. In the opening of my story she is playing piano. This is only my written screenplay I hope a producer will want to buy, so for my own profit… but feel later if made into a movie then I think the producer would have to secure that it’s not copyright infringement… right? This is a script I will submit to producers, agents, consultants, etc. not general public – yet really I’m hoping to sell it…. Also, producers, agents, etc. will not look at a script unless it is registered with the Writers Guild or copyrighted. They say best is an official copyright. So, on top of it all I hope to very soon copyright my entire script with Library of Congress etc. So here goes — In my opening scene my protagonist is grieving, crying and looking into a portrait of her late parents that is surrounded by flowers while she plays piano and sings. Taylor Swift is very famous but this is exactly what I’ve used, since it’s so brief I’ll cut and paste right from my script:

    Teary-eyed, Rita gazes into the portrait, sings to her parents.
    POV RITA of portrait.
    RITA O.S.
    (singing “Back To December” by Taylor Swift)
    ‘Wishing I’d realized what I had when you were mine.
    I’d go back to December, turn around and change my own mind.
    I go back to December all the time.’

    Is that an infringement? Again I’d only like to include it just for purpose of producers etc. reading and later if I sell the script (huge chance 99% I won’t is the reality) then they need to worry about it, right? Maybe reality is I can’t as I’m also hoping I sell my story, which means I’m paid for it before it even goes to the big screen…. If there is a problem, then how many words of the lyrics could I use? I heard of something like seven words max. but not sure. Also, later on in my story when my character performs at her high school auditorium all I say is she “plays an upbeat Taylor Swift tune” and do not include lyrics or even a song title. No where else in my 120 page script is she mentioned. Is all that okay? Thanks very much for your attention! I hope this adds to all this as a new angle on this complex issue of “fair use”.
    Sincerely,
    Mike

    Reply

    Dan Mitchell January 30, 2014 at 7:21 am

    Hi Joel, Great article, but I have a unique scenario. I wrote a book about ways for teens to promote their own mental wellness. I would like to have some teens from the high school I work at as a therapist to draw pictures or take photos related to some of the content of the book. I would of course have them sign their picture and then also include a page at the end for all the students that gave credit. I am assuming I should have them and their parent sign something that allows me to use the picture? If so, is there a template of what to write? I do not want to pay the kids as I want to keep the book affordable. Thanks! Dan

    Reply

    Luchian Bandoi February 4, 2014 at 8:11 am

    Hello,
    I would like to know if it’s legal to write articles on my blog and sign them as cartoon name. Do I have to indicate somewhere in the blog that the names are inspired by “X” cartoon?
    Is this a “fair use” ?
    Thanks a lot!

    Reply

    Lucy February 5, 2014 at 8:33 am

    Friends of mine run a small but successful fashion label. They want to name their new collection after a the title of a book by Andy Warhol. Is this permissible under fair use?

    Reply

    David Amkraut (author of the original article) February 5, 2014 at 1:54 pm

    Book titles are not protected by copyright. However, Lucy’s friends should make sure whatever phrase they intend to use is not protected by trademark.

    Reply

    Laverne C. Gonzales Jr. February 5, 2014 at 11:21 pm

    Hi Sirs! Well done! The article is very informative for!
    I am an IT and I maintain our company’s website. I am posting daily news on our website. Our sources are two news providers which we are a subscriber and paying every year. I copy word for word the headline and first paragraph of the news article then put on our website. Then below, I always include “For the complete article, visit and subscribe to (link of the news provider)”. Our main purpose for putting the news on our website is to generate random keywords for better chances web traffic (visitors coming to our site). Our business is general trading and our main product is steel. Are we violating any copyright infringement laws? Or can we modify the whole news article by rephrasing it and citing our source?

    Thank you!

    Reply

    Gerry OSullivan February 14, 2014 at 4:59 am

    Dear David,
    1.

    I am writing an academic book on developing questions for use in coaching. I want to use a concept/idea about how the brain works (found on the internet, with copyright stated) and develop this further by creating lists of questions that can be asked of a client, based on the concept/idea. Do I legally need to ask permission?
    2.
    And are copyright laws apply in the country of the original author or the country of the user of the information?

    Reply

    David Amkraut (author of the original article) February 14, 2014 at 11:39 am

    Let’s go back to copyright basics. Ideas and concepts are not protected by copyright. Only their specific expression is. Therefore, if one is only making use of a concept or idea, and not copying the expression thereof, no permission is required.

    Reply

    Shane February 17, 2014 at 9:44 am

    Is it possible to create a study guide of a copyrighted book and sell it without the consent of the copyright holder?

    Reply

    David Amkraut (author of the original article) February 17, 2014 at 3:53 pm

    It is possible. The author of the study guide would have to avoid significant copying. The question would be: looking at the book and the study guide, whether there has been enough copying to constitute infringement. That is a case-specific inquiry.

    Reply

    Codin Baltagan February 22, 2014 at 10:16 am

    Dear Sir,
    I represent a not-for-profit organization caring for children whose parents are divorced in Eastern Europe. We try to improve the understanding of the specialists in my Eastern Europe region regarding the best practices in case of divorce with kids. I saw an article of an US author regarding “what is a correct protection of the kids in case of divorce”. The article was published by an US Online Library who charges money for downloading the article. I asked directly the author for “the right to translate in Bulgarian, Serbian, Russian, Romanian and other Eastern European languages and then to publish this on-line”. The author did agreed and replied he believes this is a “fair use”. I also believe is a “fair use” because:
    1. it is for a noble/social cause of educating the people in those countries what is the right protection the kids needs in case of divorce
    2. it is not intended to be sold ever. all our translations we offer for free.
    3. the author agrees (he, by the way, has the ok from the publishing house to publish his work on his web-site, too)
    4. the translations do not compete in any way with the original work (first of all because they are not perfect translations, second as they are dedicated to non-English people, third: they do not jeopardize the ability of the Publishing House to earn money from their intended target: the US and all other English speaking countries, fourth: in fact the translation will only raise the awareness about the author and some of the non-English readers may want to actually consult the English version of the document, thus would probably buy the original work in English from the Publishing House web-site)
    Can you please advise, if in your opinion we do meet the “fair use” principles. Is not that we do not want to asks all those Publishing Hoses for the OK to translate (to be 100% safe) but such work would become really prohibitive for us from time point of view, to be able to maintain a correspondence with so many publishing houses (we prefer to talk/get one OK from the author cause we have very little number of volunteers able to do such intensive English speaking work)
    Great thanks for your advice and best regards.
    Codin Baltagan

    Reply

    David Amkraut (author of the original article) February 23, 2014 at 1:53 pm

    It is infringement to simply copy an entire article, even if one translates it into a foreign language. A court would not consider that fair use. If Codin’s organization is concerned that the article’s author or publisher would sue them over that use, I suggest the organization get written permission from the rights holder (which may be the article’s author or the publisher). If the organization cannot get permission, it can certainly draw from the ideas and information in the article, while avoiding copying.

    Reply

    Codin Baltagan February 24, 2014 at 12:33 am

    Hi there, thanks for the quick answer. I want to mention that we DO HAVE the written acceptance from the author that we translate in those “minor” languages. So we are not afraid that the author will suit us. But we do not know whether the Publishing House in US (to whom we do not have any relation) would not want to “make a business” suiting us in 3 years from now. They indeed were the first to publish the work in English and they charge money to anyone who downloads that article. We do not have access to the contract between the author and the Editor. To us the simple fact that by the contract, the author has retained the right to publish his work also on his own website means that the Editor received only limited copyrights. In such conditions, in which the author gave us formally the OK to translate and publish translations, is this an infringement to translate not-for-profit in those minor languages?

    Reply

    David Amkraut (author of the original article) February 24, 2014 at 10:29 am

    No. The fact that the author of the work is allowed by contract to publish the work on his own website does NOT mean that you are allowed to publish it. You should either (1) get written permission for your use from the publisher, or (2) review the contract to determine what you need to do to be legally safe. For example, if the author retained foreign language rights, you are safe if you have his permission alone.

    Reply

    Lance Morcan February 22, 2014 at 3:34 pm

    Hi there
    This forum is very helpful…thanks!
    I’m co-author of a soon-to-be-published non-fiction book in which we run attributed/credited excerpts of published news releases (sourced online from newspaper articles, TV News reports etc.) throughout.
    With ‘Fair Use’ in mind, we limit each excerpt to maximum 100 words.
    However, in various chapters we sometimes run two or more excerpts from separate published articles sourced online from the same news outlet (e.g. NY Times). I stress these excerpts are sourced from separate articles published on different dates by the same news outlet.
    My question is:
    If in the same chapter, or in the same book, we publish a 100 word excerpt from a NY Times article AND if we publish a separate 100 word excerpt from a NY Times article that ran on a different day, are we still operating within ‘Fair Use’ guidelines?
    (In the above example we would have published excerpts totaling 200 words from the same news outlet).
    Kind regards
    Lance Morcan

    Reply

    David Amkraut (author of the original article) February 23, 2014 at 2:15 pm

    With the usual caveat that it is hard to comment without seeing the original news releases, the excerpts, and the use made of the excerpts…

    Each use of a 100 word excerpt would be evaluated on its own, because each release is a separate work.

    There is no “bright line” rule for how many words one can copy. The law does not say, for example, 100 words copied is okay, but 101 becomes dangerous.

    In this case, one would need to see the news releases, the excerpts, and the use made of them in the book. For example, suppose the book’s theme is that the New York Times is deeply dishonest and slants stories to favor leftist views. The book excerpts sections of news releases or stories— or even entire releases or stories— from the New York Times, analyzing each to prove bias. That would be a very strong case for fair use.

    An analogous situation is the Times’ and many other mainstream media’s use of doctored photos or false captions to dishonestly present news. Critics must reprint the entire photo in order to show how it was doctored, and the entire photo and caption to demonstrate the slant. Fair use, right?

    Reply

    Lance Morcan February 24, 2014 at 5:27 pm

    Many thanks David – very helpful.
    Lance

    Reply

    Yuga February 24, 2014 at 3:08 am

    Hey,
    This question pertains to student short film script. I wrote the screenplay by myself, but a part of the story is derived/inspired from a book that I read. The book is a non-fictional work, a anthropological study of an indian epic, the mahabaratha. However, I’m not using the authors language, style or her text in any manner. The part of the book that inspired the screenplay is also not very substantial, perhaps 2 pages out of a hundred and fifty. And also, this short film will not be used for commercial purposes. But since its a student film, it might be sent to and screened at film festivals.

    The book is still under copyright. How does this work? Can I claim fair use….?

    Reply

    David Amkraut (author of the original article) February 24, 2014 at 11:14 am

    As usual, I offerthe disclaimer that specific advice requires a review of the original work and the second work. However, the way Yuga describes his work— “… I’m not using the authors language, style or her text in any manner”— suggests that there is little problem. Remember that copyright protects only specific, tangible expression— not ideas or concepts. Another issue that this letter raises is whether the material “inspiring” the student film is not really the original author’s but rather belongs to the Indian epic that is certainly in the public domain.

    Reply

    Yuga February 25, 2014 at 5:28 am

    Thank you for the reply, its reassuring. I did think about the fact that the mahabaratha is indeed in the public domain. However, as the author is an anthropologist, this is her interpretation of the epic. I was unsure if that falls under ‘ideas’ or something like part fiction, part research paper etc. If it does fall under ideas (as I have been assured by both you and a host of other people I called up… I shall stop worrying!) thanks again for taking the time to reply!

    Reply

    Bryan February 25, 2014 at 10:29 am

    I have been loaned collections of old photos of family and others to scan, copy stand making negatives and in some cases publish works in the form of a Family History. Am I violating any individual copyrights and would I have a copyright on my copies etc.? Bryan

    Reply

    Joan Isenberg February 27, 2014 at 4:00 am

    Robert D. Hare, Ph.D, author of “Without Conscience, the disturbing world of psychopaths among us,” used Joe McGinniss, author of Fatal Vision to justify calling Dr. Jeffrey MacDonald a “psychopathic physician,” chapter three, page 37.
    Five psychiatrists used by the prosecution and defense agreed he wasn’t the type of man to slaughter his pregnant wife and two little girls. Plus two druggies confessed to the crime to their hippie friends and lawyers before they died, several times. The point is, there’s something very unfair about all this, isn’t there. In addition, I’d expect an author to use a psychologist as a reference, not the reverse.

    Reply

    Loren Brown March 6, 2014 at 6:38 pm

    Recently, I was involved in a situation where some members shared an un-edited political cartoon to essentially express their point of view.

    In a response, the cartoon was down loaded and edited by removing the original captions and replacing them with cations to make a counter point.

    To avoid the perception that the original artist was involved in the edit, his name and mention of a copyright was also removed.

    Only the original artwork remained – though it too was partially re-arranged.

    This was not done for profit. This was only done to introduce a new concept in the context of a political forum and discussion (education.)

    All things considered, I and others believe this was an example of fair use – however, I would like to read what you think about it.

    Reply

    David Amkraut (author of the original article) March 6, 2014 at 11:32 pm

    This is a case where “a picture (of the original artwork and also of the altered artwork) is worth a thousand words.” Without those two images, it is difficult, if not impossible, to comment. It would also be useful to have the situation explained in clearer terms: what “organization?” What “new concept?” What “political forum and discussion (education)?”

    Reply

    Sara Stringfield March 13, 2014 at 10:44 am

    This article was extremely helpful in clearly setting forth the fair use factors, thank you! I wonder if you are familiar with a gossip scandal site, TheDirty.com? They made headlines a while back after breaking the news about the Anthony Weiner sexting debacle. The site panders to those with an appetite for local gossip, mostly through posts pertaining to private persons, and which inevitably attempt to humiliate, expose, and degrade others.

    TheDirty.com allows a 3rd party web site user to upload photos and text to the site, the site operator adds his comments, a title or caption, and possibly some minor editing. Recently, a close friend of mine from law school had her phone stolen from her car while at a car wash. Shortly thereafter, nude photos she had taken many years back appeared on TheDirty.com, identifying her, the law firm she just started working for, and with additional derogatory remarks and untrue statements. These photos have never been placed in the public domain. After sending the site a DMCA takedown notice, the lawyer for TheDirty.com claims that the site’s posting of the photos is protected by fair use.

    Although the 4-prong analysis for fair use does not include a “method of acquisition of the material,” it seems to me there is a strong argument that receipt of stolen property is an improper method, not to mention the complete lack of any educational value provided by publication of the photos and “commentary.”

    Any thoughts on the strength of TheDirty.com’s fair use defense/refusal to remove the photos?

    Reply

    David Amkraut (author of the original article) March 13, 2014 at 9:06 pm

    On the facts presented, TheDirty.com’s fair use defense is absurd. I would be interested in seeing all the information: what TheDirty.com published (the images and comments); the takedown notice; their reply; any other correspondence. I would be happy to speak privately with you about remedies.

    Reply

    Audrey March 28, 2014 at 5:20 am

    Is it okay to make page-size copies of popular book covers and use them on a bulletin board to promote books in an elementary school library? What about the actual book jackets? Thanks.

    Reply

    David Amkraut (author of the original article) March 28, 2014 at 2:09 pm

    Regarding the actual book jackets, I can not see any problem. Under the First Sale Doctrine, you can do whatever you want with the physical copy of the work that you bought. Sell it again, mark it up, use it for a fish wrapper, or even display the cover in a laudable intent to encourage children to read.

    As for the other question, copying the cover and displaying copies, let’s not even worry about fair use. Let’s approach this as a human being rather than a lawyer. What is the chance that this copying would come to the attention of the copyright owner, that he would care, that he would send a threatening letter (deservedly gaining the contempt of every reasonable person in the world), and that, if you ignored the threatening letter, he would sue? (Ditto ten-fold.)

    I apologize for taking a practical and commonsense approach. But I am reminded of the statement by a famous judge that “common sense is the strongest weapon in the armory of the judge.” Or something like that. Sometimes it’s best not to agonize over possibilities that are remote to the vanishing point, except, of course, if the question is presented to you in a law school exam.

    Reply

    Bella Ireland March 28, 2014 at 11:44 am

    I would like to use the name of a popular singer in the title of my
    ‘book sing to me steven tyler’ am I allowed to do that legally without permission?

    Reply

    Upwind March 30, 2014 at 12:14 pm

    I’m a teacher, and I’ve written a manuscript about a paragraph writing system I use. The system includes several types of sentences and the order in which they’re arranged.

    I’ve also collected examples of these paragraphs from books and newspapers I’ve read. I’d like to use these paragraphs in my manuscript as examples of the types of paragraphs I’m teaching, sort of like using using a verse of poetry to illustrate an example of a rhyme scheme. Using them seems like fair use according scenario 6. What do think?

    Reply

    David Amkraut (author of the original article) March 30, 2014 at 4:00 pm

    As usual, I must caution that one needs more information. One should see the actual paragraphs, how much is being copied, what the comments on them are, and so on. However, in broad terms, taking brief excerpts for laudable purposes such as scholarly analysis like this should be protected. The fair use factors and the general purpose of fair use, all favor non-liability. From a practical viewpoint, also, I would think there is minimal chance of anyone noticing, or being upset by such use.

    Reply

    Jesse Morton April 1, 2014 at 7:04 am

    I am wondering about using images found online. It is a book of poetry and I am wanting to use images found online to complement the poems and it will eventually be a self-published the book. I am wondering if it is possible to use the images and site where I got the images from in a bibliography or footnote of some sort. I am not claiming the images to be my own and I don’t mind giving recognition of the actual artist who originally created the images (none of the images include pictures of people). I have tried contacting the websites directly from where I got the images and so far no response from any of them…alot of the images were small photo’s not even essential to the actual website itself so I don’t even know if the websites I’m contacting even know what I am asking their permission to use. I am looking for a way where I can use the images, give recognition to the artists, site exactly where I found the images in a reference or bibliography and therefore bypass actually getting permission from each individual website. Any help is appreciated.

    Reply

    Ben Batchelder April 1, 2014 at 10:05 am

    Thanks for patiently addressing so many detailed and sometimes repetitive issues here!

    I have a general issue which I haven’t see addressed yet (sorry if I missed it!).

    Are literary quotations at book or chapter starts of other authors fair use?

    In my case, I wish to quote 9 verses of the (deceased) poet Elizabeth Bishop, duly attributed, at book start. (The entire poem is much longer than 9 verses, so I am not copying the entire poem.) The book of poems was published in 1965.

    Hope this question is of use to others as well.

    This is for a self-published work for release this year.

    Reply

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