What Every Writer Ought to Know about Fair Use and Copyright

by Joel Friedlander on February 8, 2010 · 379 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

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

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    { 362 comments… read them below or add one }

    Joan March 2, 2015 at 1:39 pm

    Hi Joel:)
    First of thank you for taking time to post this valuable information on line.
    I have written to the author and the publisher of a children’s English picture book that I really like for permission to translate, more than once.
    I got no response from either.
    If I changed a books story line a little, I changed the animal characters and the setting all the illustrations and the language, not intending to publish it in English. It is my first attempt to publish a book. Would this infringe copyright laws?
    Your comments on this would be very much appreciated as I have already completed the illustrations.
    Joan

    Reply

    Sheogorath March 2, 2015 at 2:07 pm

    @ Joan: Yes, that would be copyright infringement, unfortunately. Having said that, however, there’s absolutely nothing to stop you from basing your own story on the idea in the original. Copyright doesn’t protect ideas, only individual expressions of them.

    Reply

    Joan March 2, 2015 at 11:11 pm

    Thank you for such a clear and promp reply:)
    So my expression of the idea is fine.

    Joan

    Reply

    Christine Wilke February 24, 2015 at 8:38 pm

    Hi. I am developing an on line course and am referring to a concept in a popular book to help explain my point. I am citing my resources and am even encouraging people to buy the book. Is this fair use?

    Reply

    Andy February 24, 2015 at 8:30 pm

    I’ve written for a magazine for many years. We don’t have a contract of any sort. I give them 5 articles a year that I get paid for. The gentleman’s agreement between myself and the original publisher was that I wouldn’t use the articles elsewhere for a year after publication. After that, anything I wanted to do with them was cool.
    The magazine was bought (by the editor). I’ve continued to write for the magazine as usual. No contract, or anything discussed of this nature.
    I’d like to publish an anthology of the articles I’ve written. Any reason I should be concern about this?

    Reply

    AmSen February 3, 2015 at 7:20 am

    Hi,
    Very useful information. I am writing a blog based on children’s books. http://toobookishkiddo.blogspot.com/
    I am providing book title, name of author, illustrator, publisher, ISBN no., a short introduction, my comments about each book and also I am classifying them as educational, emotional etc. Does this come under fair use? Please help me.
    (There is a reason why I am doing this blog. When I came to US before some years, the children’s literature is new to me. I learned about it from various resources. There are many people like me, I have seen, who asks me which book would be good for their kids. This does not come under profitable uses, right?)

    Reply

    AmSen February 3, 2015 at 8:10 am

    Sorry, Forgot to add this important detail. I am displaying book covers for each book from librarything and openlibrary api (in pixel size 100×120).

    Reply

    Sheogorath February 3, 2015 at 2:02 pm

    Absolutely fair use, especially if any copying from the books is insubstantial.

    Reply

    AmSen February 4, 2015 at 12:18 pm

    Thanks for the clarification, as I was a lot worried about the book covers.

    Reply

    Sheogorath February 4, 2015 at 3:02 pm

    You’re welcome, and don’t worry about displaying book covers. If anything, that makes the books even easier for potential purchasers to find, bolstering your fair use defence.

    Reply

    Bob February 2, 2015 at 8:45 pm

    Hi, I’d like to read 2 pages of a new book on amazon on a youtube video, and give commentary, the only ‘money’ I’d get is about 10 cents from 6 months of views, is this fair use?

    Reply

    JT Chapin February 2, 2015 at 2:23 pm

    I am facing a situation a whole lot of writers, especially free lancers, will be up against more and more. That is having an article they submitted to a magazine and had published. sometimes years ago, being republished electronically without the author’s permission or payment. I had an article published years ago (1977) in an aviation magazine, and sold it again several times to other media including newspaper. Now the group who bought out the company who first published my piece is converting the 12 monthly issues of each year into a DVD for that year and selling the DVDs in the open market. Whether magazines are reprinted from old negatives, copied on a copy machine or converted electronically to a saleable format, this is republishing an author’s hard work and effort without acknowledgement, permission or payment. I’m hoping I can get David Amkraut or some other attorney skilled in copyright and intellectual property to seriously look into this. Authors are/will be taking a beating by people who apparently have no intention of following the legal rules. I sent these people a certified, Priority Mail, return receipt letter identifying myself and establishing my right as author to my article in the magazine they had just republished. They were notified three different times by the Post Office that they had a certified return-receipt letter waiting for them to sign for and accept. The company never signed for or picked up my letter, and the Post Office returned it unopened to me a few days ago. I hope my particular instance will alert other writers/authors and attorneys in protecting them and the field of copyright and intellectual property to the problems which likely will only grow larger and larger. This may be a situation which could/should result in a class action suit upholding and defending authors’ intellectual and copy rights.

    JT Chapin
    Helotes, Texas

    Reply

    Helen Sedwick February 2, 2015 at 4:55 pm

    JT, If they are re-publishing an entire year’s worth of issues, then quite a few writers may be affected. Have you tried to get in contact with the other writers? As a group, you may have more impact. There may be sufficient financial damages to interest a lawyer.
    I would not bother with certified mail. People ignore those. Try sending an email, regular letter and a FedEx or Express Mail letter.
    If they are selling the DVD on Amazon, Barnes & Noble and other online retailers, you may be able to get the product pulled off their sites. Here’s the link for copyright claims on Amazon. http://www.amazon.com/gp/help/customer/display.html?nodeId=201140760
    I hope that helps.

    Reply

    Sheogorath January 29, 2015 at 2:28 pm

    @ Kate Rauner: Actually, such quotations generally aren’t fair use, but are instead licensed use. An example of fair use would be some rewritten lyrics of a song by Wham!:
    Last Christmas I gave you my heart
    But the very next day the world knew I’m gay
    This year, to save you from tears
    I’ll give it to Andrew Ridgeley

    Reply

    Joel Friedlander January 29, 2015 at 3:23 pm

    Sheogorath, thanks for your input, but please read this article in its entirety. Rewriting song lyrics has nothing to do with fair use, which refers to using the actual words from a work that is protected by copyright.

    Reply

    Sheogorath January 29, 2015 at 4:54 pm

    Joel, thanks for your input, but please study the four factors of fair use in their entirety. Rewriting song lyrics can be fair use if the new work targets the original work or anybody who had something to do with its creation. Since the lyrics I quoted target George Michael, one half of Wham! who originally performed Last Christmas, it is an absolutely classic example of fair use. Search ‘Campbell v. Acuff-Rose Music, Inc.’ if you don’t believe me.

    Reply

    Kate Rauner January 29, 2015 at 7:27 am

    I’ve noticed many books – fiction and non-fiction – that use a short quotation at the start of each chapter. Usually a sentence or two and with attribution. Does anyone have experience with that sort of fair use?

    Reply

    Joel Friedlander January 29, 2015 at 3:21 pm

    Kate, those quotes are known as epigraphs and they are generally considered to be fair use.

    Reply

    Mary Stevenson December 29, 2014 at 2:20 pm

    Thanks, everyone; thanks, Joel. Just wanted you to know that I DID find the right place to ask about using those song lyrics in my book, which is Alfred Music. They had to contact the Eagles for me before issuing any “license” and the answer was a big fat NO! I’ve heard that the Eagles are one of the most territorial bands as to keeping their music from public use. Oh well, that’s too bad, but I’m glad to be spared any legal hassles by knowing this ahead of time.

    Reply

    Raymond December 29, 2014 at 1:45 pm

    Mary,

    Try going through their booking agency to ask for the right person:

    http://delafont.com/music_acts/eagles.htm

    Also, if you know someone who belongs to the Music Union, you might be able to go through a directory and contact a band member yourself to find out how to get permission.

    http://www.afm.org/resources

    Reply

    Danielle December 26, 2014 at 5:00 am

    I am hoping you can help me worth my question. I would like to print 365 day desk calendars to sell containing a different quote on each day from various sources. Would I need to obtain pemission for this application? Thank you.

    Reply

    Sheogorath January 23, 2015 at 8:51 pm

    Since there are a crap ton of quotes out there by authors long dead, why not just use that Public Domain material and avoid the question entirely? Just make sure to use correct attribution so as not to get accused of plagiarism.

    Reply

    Sam Shantz December 19, 2014 at 10:42 am

    Sorry, but I am really impatient. And I understand why you aren’t constantly checking your article, if I wrote one I wouldn’t. But please respond.

    Reply

    Joel Friedlander December 19, 2014 at 1:06 pm

    Sam, I think you’ve misunderstood the nature of this blog. The original author of this post has answered numerous questions over the years since it was written, solely out of generosity, but he is a busy attorney and can’t be expected to answer every one, or even any of them at this point nearly 5 years later. If this is so urgent and important for you, I suggest you hire an intellectual property attorney to get a definitive answer. And good luck with your book!

    Reply

    Sam Shantz January 6, 2015 at 11:31 am

    Oh, sorry! Thank you…

    Reply

    Sam Shantz January 6, 2015 at 11:35 am

    I apologize for my nature. I was thinking all about me and the joy of writing a book without going to prison or sued. I really think that writing is my future, but I want it to be good. I realize the immaturity of my behavior and shan’t send repeated angry comments. Thank you for your advice and I thank you for this article which has given me a good idea for my books. You see to know a lot, do you write them too? If you have any advice, please let me know! I apologize again for my immaturity and thank you

    Reply

    Sam Shantz January 6, 2015 at 11:37 am

    I don’t only apologize to you Joel, but all of the other people who had to deal with me feeling like my books are more important than theirs. I hope you accept my apology and my thank-you.

    BLISS INFNITE TEAM December 18, 2014 at 11:36 pm

    Hello Joel,
    A really nice article. Thanks a lot for this. We at Bliss infinite are planning to launch a Magazine for students and hope to use some inspirational excerpts from various books. Would that be a fair thing to do?

    Reply

    Mary Stevenson December 15, 2014 at 8:41 am

    Hi Joel, thanks for your helpful article here. I have an important question and hope you can help me. I am about to publish my first book and have included the lyrics to an Eagle’s song, giving them full credit, of course. I cannot seem to even find HOW/where to contact them to ask permission to use these lyrics, which make such a good point in my story. Do I risk being on the wrong side of this “fair use” situation, based on your experience? I’d appreciate anyone else’s answers, too, especially if anyone knows who/how to contact whoever I need to, in order to ask their permission. Many thanks! Mary

    Reply

    Joel Friedlander December 19, 2014 at 1:07 pm

    Yes, in my experience you would be at risk publishing any copyrighted lyrics without permission. I suggest you consult with an intellectual property attorney to get a professional answer before you proceed.

    Reply

    Diana December 14, 2014 at 11:10 am

    Joel,

    Thanks for the information in your blogs I have all of them very helpful. I have just completed my memoir and hired a professional editor, I want to make sure it reads well, after she is completed I would like to hire a second person to read through as a backup to ensure it is published with the utmost professionalism. In my book I listed a band name and title of a song and first few words that I gravitated towards while I was confined to a bed for six months paralyzed. It helped me find internal strength to keep fighting to survive. Do I have to get permission from the band before publishing my book.

    Reply

    Sheogorath January 23, 2015 at 8:59 pm

    IMHO, that’s classic fair use with transformative use on top. IANAL, however.

    Reply

    Sam Shantz December 11, 2014 at 7:48 am

    So, does that mean my book is good

    Reply

    Sam Shantz December 15, 2014 at 8:10 am

    Can you help me?

    Reply

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