What Every Writer Ought to Know about Fair Use and Copyright

by Joel Friedlander on February 8, 2010 · 441 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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    { 422 comments… read them below or add one }

    swadesh August 1, 2015 at 4:48 am

    Hi Joel,
    Your article on fair use and copyright is extremely useful for people like us, who are dreaming to enter into the field of self-publishing. The answers given by in response to many questions also added to my knowledge.
    I have completed a non-fiction book which I want to self publish. Please see the following facts and guide me:
    1. I have not copied even a single line from any source.
    2. I am not using any image from anywhere.
    3. At the most what I have done is to go through the writings of various authors in books and internet to enrich my knowledge about the subject.

    My apprehension is that, although nothing has been copied but may be some concepts written by me are identical to someone else’s concept although it is written in my own language and sentences. Should I worry about the fact that some lines or paras may be identical to someone else’s concept?

    Please give me your advice.

    swadesh

    Reply

    David Amkraut (original author) August 3, 2015 at 2:45 pm

    If I understand correctly, Swadesh may be reiterating the thinking or concepts of others, but not copying their own words. Copyright protects only specific expression, not ideas or concepts. Therefore, there would be no liability without copying verbiage.

    I am talking about U.S. law only. The results might be different in other nations.

    Reply

    Cobalt-Blue July 31, 2015 at 10:09 am

    I’m currently working on a novel set in 1979 where my original superheroes exist. Two heroes are discussing the popularity of the Superman movie that came out the previous year, and why it might be popular in a world with real superheroes. Is it “Fair Use” to acknowledge that real life books, movies, plays or even authors exist in your fictional universe.

    Reply

    David Amkraut (original author) August 1, 2015 at 12:23 am

    Fair use is an “affirmative defense” that excuses what would otherwise be copyright infringement. What Cobalt-Blue describes is not copyright infringement, because he does not describe any copying of others’ material. Therefore there is no infringement nd he need not even rely on affirmative defenses.

    Reply

    Patrick July 23, 2015 at 6:38 pm

    Virtually all the modern language Bibles us the ‘Critical text’ of the
    Nestle-Aland/United Bible Society.
    The Majority text, from the ‘Textus Receptus’ is the basis for Bibles prior to 1881.
    I would like to compare verses, and perhaps have an influence on publishers determination on which Text to base their material on.
    There are over 300 significant changes in New Testament alone.
    Can I use the modern day Bibles to offer this comparison?
    I’m not doing this for money, but just to offer a better new translation

    Reply

    Dominic Ryan July 18, 2015 at 4:10 pm

    Hello Joel,

    I am writing a book and have used quotes from The Long Walk to Freedom (2 quotes) and The Audacity of Hope, by Nelson Mandela & Borack Obama. These quotes are 21, 16 and 11 words respectively. I have quoted them in the book and referenced them in the referencing section at the back of the book do I still need to obtain permission?

    Kind regards
    Dominic Ryan

    Reply

    Sheogorath July 18, 2015 at 12:10 pm

    Because the next thing you know, they’ll want to sell you copies of the anthology instead of selling it to others. That’s how vanity publishers make their money, and thus why serious writers should never deal with them if at all possible.

    Reply

    Lashanae July 18, 2015 at 6:51 am

    Yesterday I received an email from the America Library of poetry , they explained that a poem I submitted in one of their annual poetry contest in 2011 was selected for publication . They decided to extend the offer to publish my poem in a new fall compilation . They want me to sign the authors release form & in order for me to get a copy of the compilation I’ll have to pay 40$. I’m unsure what to do it says I retain all rights to my poem but should I be getting paid for something I’m featured in. ?

    Reply

    Sheogorath July 18, 2015 at 9:02 am

    Vanity publisher. My advice is to stay well away. :)

    Reply

    Lashanae July 18, 2015 at 9:14 am

    Would you mind explaining to me why?

    Reply

    Tammy Gross July 2, 2015 at 11:57 am

    Did I just make a big legal mistake?

    I copyrighted my book at copyright.gov forgetting that the cover artwork was by someone else, so my copyright application states I’m the sole contributor.

    Do I have to go back & pay another $35 to re-copyright the book? Could I be fined that $2,500 for accidentally putting false info in my claim/application?

    I have an inquiry to the .gov, but I can’t hold my breath waiting to hear back from the government.

    Reply

    Tammy Gross July 2, 2015 at 1:54 pm

    (oops – I forgot to check “notify” so that’s all I’m doing with this post.)

    Reply

    TK Blackburn July 2, 2015 at 1:35 am

    HELP! What about Christian fiction where characters quote various Bible passages (some are lengthy)?

    I wrote this 25 years ago. I can’t remember what Bibles I used.

    I also have a song lyric, but I easily obtained permission from the songwriter for that.

    Reply

    David Amkraut July 2, 2015 at 11:11 am

    The original Hebrew and Aramaic text of the Bible, both Old and New Testaments, is not protected by copyright. Take that as Gospel.

    The King James translation, still the most widely-used, was written long before 1921, and is not copyright-protected. That’s a good thing, because otherwise bride, groom and minister would be sued by the estate of King James et. al. for recitations of the Song of Solomon at several weddings I have attended.

    There are many modern translations. Some may be copyright-protected, depending on the date of creation and publication, the country in which published, and whether formalities such as a copyright notice and re-registration were observed by the publisher.

    As a practical matter, I suspect that for modern translations, most publishers would be happy to allow use, even of1 extended passages. After all, are they not obliged to spread the Good News as well as they can?

    Reply

    TK Blackburn July 2, 2015 at 11:46 am

    Thanks. I’m pretty sure it was all from my beloved NIV of that era, so I used verbatim the notice my 1984 NIV says to use:

    Scripture taken from the HOLY BIBLE, NEW INTERNATIONAL VERSION®. Copyright © 1973, 1978, 1984 International Bible Society. Used by permission of International Bible Society.

    Int’l Bible Society is now Biblica Inc which published a 2011 update of the NIV.

    I decided it was best to use the 1984 info in case the 2011 has new wording not reflected in this book written in 1988.

    Reply

    TK Blackburn July 2, 2015 at 11:50 am

    btw – thank you for the reply. Never thought about that with KJV.

    FYI – My panic was because I couldn’t find the original Bible. The one I still have from the era says this:

    The NIV text may be quoted in any form (written, visual, electronic or audio), up to and inclusive of one thousand (1,000) verses without express written permission of the publisher, providing the verses quoted do not amount to complete book of the Bible nor do the verses quoted comprise more than 50 percent of the total text of the work in which they are quoted.

    Reply

    Barb N July 1, 2015 at 1:07 pm

    I am inquiring for an indie author that is self-published. I am her assistant and we are trying to go about using two sentences of a Mumford and Sons song that in the book will be sung at her wedding. After these two sentences are sung, the bride is reflecting how it has effected her life. We are stuck at a crossroads because trying to find contact information is almost impossible. Any suggestions where to go or is it necessary for permission?

    Reply

    Luke Kendall June 17, 2015 at 11:37 pm

    Hi Joel

    In case you’re still answering questions…

    In the Four Factor test for Fair Use (purpose; nature of the copyrighted work; substantiality; effect of the use on the copyrighted work), must all four factors be met, or does the court weigh them all up together somehow? It seems that quoting one line from a song, in a 150k novel you plan to sell, would not be considered Fair Use? (Since it’s commercial use.)

    Reply

    Sheogorath June 18, 2015 at 12:27 pm

    @ Luke Kendall: From all the reading I’ve done for my course, a court (whether judge or jury) would be expected to weigh the four factors against each other such that even a commercial non-transformative work that uses 100% of its source can be found to be fair use depending on the circumstances under which it was used. Therefore, quoting one lyric of a song is more likely than not to be fair use, especially if your use is transformative in some way.
    Source: https://www.techdirt.com/articles/20140128/09090426022/court-ruling-notes-that-for-profit-full-copy-audio-without-commentary-can-also-be-fair-use-specific-circumstances.shtml
    Disclaimer: This comment does not constitute legal advice.

    Reply

    Luke Kendall June 18, 2015 at 10:59 pm

    Thanks for that link, Sheogorath – it’s interesting to see that commercial use does not automatically rule out the possibility of Fair Use. In my case, I’d like to quote 11 words of lyrics (from a song with 70 words: 16% of it), in my novel. So I might have a chance. Still, I’m trying to contact them anyway, to see if I can obtain permission, as that seems sensible. Though if they need (a lot of) money, I think I’ll just have to write that quote out of the book – which would be sad. I’m hoping it won’t hurt to ask! :-)

    Reply

    Joel Friedlander June 19, 2015 at 9:18 am

    Luke, please be aware that, regardless of the legal theory, quoting any lyrics at all in your book without permission can have very negative results in the real world, since many rights holders are extremely litigious and will not hesitate to take action against you. If you need the lyrics, either get permission or consult with an intellectual property lawyer directly, and good luck!

    Reply

    Sheogorath June 19, 2015 at 9:45 am

    That’s absolutely the best way to go about it, Luke; seek permission, finding a fair use justification if the permission you need gets denied. That way, if you are sued (unlikely since permission is more likely to be granted), then the fact you sought permission in the first place demonstrates your good faith.
    Disclaimer: This comment does not constitute legal advice.

    Reply

    Azaka Augustine May 26, 2015 at 10:53 am

    In deed i love you page. i have a question i hope you can answer. firstly i am from Nigeria, and i don’t know if the copywrite law is universal. Meaning if that which is tenable in you country is equally tenable for we, Nigerians. If so, you could be of great help. Seriously i am set to publish a book about the just recent presidential election in my country. And all my materials i got from the various nationals newspapers as we have them in my country. Since i will rightly acknowledge each as to the writer, the publisher, the date, do you think i can have a fair use.

    Reply

    Mark May 22, 2015 at 12:06 pm

    Joel, I hope you can answer this question. I’m writing about a particular subject for a book and there are a few writers who have posted online articles about this particular subject matter. Each give insight that I think readers would enjoy. My question is this:

    For an online article, maybe 7-9 paragraphs, am I able to use a sentence, or paragraph, or a couple of paragraphs? I’m not sure how much I can use.

    Lastly, I would certainly list the link to the website, giving sole credit to the author. I’m not trying to pass it off as MY work. I just think their commentary could add so much to the overall subject.

    Are there any guidelines on how much a person can pull from an on-line article?

    Thank you in advance!

    Reply

    David Amkraut May 22, 2015 at 12:55 pm

    There is no “bright line rule” that says exactly how much you can use. In the unlikely event Mark is sued, the analysis is done case-by-case, examining and weighing all the factors.

    To be very cautious, Mark could ask permission from each author he will be quoting. The attiirbution and linking should go a long way to help him get approval of his flattering request. If some authors do not okay his use, he should consult a copyright lawyer who will examine the material and intended use and offer advice.

    As a practical matter— not as legal advice!!— few people sue over the type of use described.

    Reply

    Conn May 16, 2015 at 1:47 pm

    Hi Joel,

    I’m running a blog and TV show reviews.

    If I take a photograph of a book, is that Fair Use? The book cover is not mine, but the photograph itself is. Would that be liable grounds to sue me?

    As for a TV show, if I take a picture of my laptop screen with an image from a show on it, would THAT be Fair Use? Again, the copyrighted image is “second-hand” since it’s within another image – which is mine. Would that be sufficient to count as Fair Use?

    And what if I choose to do artwork of a book or TV show? I’m not talking of copying images, but drawing my own artwork from my own imagination, but featuring images or characters that are not my own. Would that fall under Fair Use?

    Reply

    Conn May 16, 2015 at 1:55 pm

    Hi Joel and David,

    Another question, though I’m pretty sure I know the answer to this one, but just to be certain:

    If a book cover has a quote from a critic or newspaper on it, I imagine THAT can’t be used without permission. Is that right?

    Reply

    Conn May 16, 2015 at 2:06 pm

    Just to clarify, the blog is non-profit, if that makes any difference

    Reply

    Colleen May 13, 2015 at 12:21 pm

    Thank for all the wonderful information. I am starting my book project by creating a questionnaire that a certain demographic of people will , be filling out voluntarily. I will be using these as advice quotes. I have stated that the questionnaire is voluntary, unpaid and can be anonymous. I have questions as to what legalities I should be aware of.

    Reply

    David Amkraut May 13, 2015 at 12:55 pm

    Out of an excessive abundance of caution, include in your questionnaire a waiver allowing you to publish the responses, without identifying the author unless you have permission.

    Reply

    Colleen May 13, 2015 at 1:06 pm

    Some willing volunteers are under the age of 18, I believe I should get parental consent?

    Reply

    Margaret H May 3, 2015 at 10:09 pm

    Please help me. Our Church has a chorus book called RCI Chorus Book. Now it was last printed in 1996. We all bought the book so we could play music in the Church. Now years later the copies are warn out and the Publisher say each song had there License paid for. So we can make a copy and destroy the warn copy!

    Help. Is that true? Is this done PLEASE

    Margaret

    Reply

    Denise Gaskins May 3, 2015 at 11:53 am

    Joel and David,

    Thank you both for all the advice you’ve given us floundering newbies. I’m amazed you are still answering questions on this post. But since you are, I’ll impose on you again.

    You’ve said that epigraphs are free to use without permission. Is there a limit on how long a quotation may be considered an epigraph? I have short quotes at the top of my chapters, but I would also like to put longer quotes (less than 200 words) on my section divider pages.

    Example: I’d like to quote about 90 words of Andrew Wiles’s description of what it feels like to do mathematics, from this interview:
    http://www.pbs.org/wgbh/nova/physics/andrew-wiles-fermat.html

    Fair use considerations: I would not be commenting directly on the quote, so I’m not sure it counts as “educational” use, unless one could consider the whole book a commentary on all the epigraphs (it’s a book about learning and teaching mathematics, and my major thesis is that we can improve math education by thinking like mathematicians, so I quote a lot of mathematicians to demonstrate the mindset I’m advocating). Since I am selling the book, it is clearly not a non-profit use, though my audience is small enough that it may not really be “for profit” either. In this example, I am using about 3% of the original, but some of my other quotations may be a larger percentage. My use of the quote doesn’t harm the market for the original source, and in fact I hope it will lead a few people to look up and watch the PBS program (or for other quotes, look up and read the books or articles).

    Thanks again!
    Denise

    Reply

    Patrick April 29, 2015 at 9:25 am

    Should I post some of the sample passages here or a link to the review?

    Reply

    Patrick April 27, 2015 at 9:48 am

    First, thank you for this blog.

    I am in the process of writing an analysis and commentary about a book that teaches a particular type of counseling or therapy. The nature of the book is religious, and the author denies that the practices taught therein are either counseling or therapy.

    I need to include large amounts of substantive materials from that book in order to provide meaningful analysis and commentary. Originally, I planned to post this as a book review. However, after input and encouragement from others, I am considering turning my work into a book.

    My arguments are primarily theological, but also included will be comparisons between the authors recommend practices and other similar therapy techniques. In addition, I make the assertion that naming his practice ministry does not change the fact that it is therapy.

    For a little more background—the book teaches what the author calls, “prayer ministry.” It promotes the same regression therapy techniques practiced during the Satanic Ritual Abuse and Repressed Memory hysteria that lead to tens of thousands of cases of false recovered memories. Many individuals were charged and convicted of various types of abuse based solely upon accusations from alleged victims.

    Eventually, the mental health community began to self-correct (lost lawsuits contributed substantially to this), convictions were overturned and many of the accused were released. This movement peaked in the mid 1990s and rapidly declined, unfortunately however, not until after the destruction of thousands of families.

    If my book were to gain some popularity and sell, it could not help but contribute to a market loss for the other book.

    Can you advise?

    Thank you

    Reply

    David Amkraut April 27, 2015 at 11:54 am

    I would not venture to advise based on this letter. One would need to see some sample passages from the proposed book, including the copied passages from the book being discussed, and ask some questions, before saying “yea,” “nay” or “maybe.”

    I wish I could be more definite. It sounds like a potentially valuable work of criticism.

    Reply

    Kirsten April 25, 2015 at 7:34 am

    Hi Joel,

    I’m epublishing a book regarding relationships, its for guys and as they are visual…I want to add some drawings of various sexual positions and couples embracing.

    Can I (draw them myself) from a picture or another drawing that I find on the internet? Is this fair use?

    Thank you!

    Reply

    Sheogorath April 25, 2015 at 10:22 am

    That would be copyright infringement. You would be better off searching for CC Licensed images on the subject and either using them directly, or copying them if derivatives are allowed.

    Reply

    Kirsten April 26, 2015 at 8:27 am

    Thank you very much for your reply Sheogorath

    Would you say the same if I told you that it’s just naked people without faces and just body parts, nothing else. (empty shells)

    It’s not the couples that is the focus, it’s the positions they are in…..

    Much appreciated! ;-)

    Reply

    Sheogorath April 26, 2015 at 3:43 pm

    Would you say the same if I told you that it’s just naked people without faces and just body parts, nothing else?
    Yes, I would. Not using the people’s faces simply resolves the question of a model release (unnecessary if people clearly not linked to you) and does nothing to resolve the question of the copyright in the original image. To paraphrase a judge: “Get a license or do not copy.”

    Reply

    Kirsten April 27, 2015 at 12:45 am

    I’m not sure why this last comment was necessary

    I have full respect for copy right laws…and have no intentions of copying anything without permission, I’ll create something myself or find out who can give permission…

    Thank you for your replies!

    JenL May 23, 2015 at 2:17 pm

    Are you an attorney?

    Reply

    David Amkraut April 26, 2015 at 7:54 pm

    One should not try to answer Kirsten’s question without seeing examples of originals and the drawings based on them that Kirsten proposes to publish.

    Reply

    Vikram Sherigar April 19, 2015 at 12:23 am

    Hi Joel

    First of all many thanks for writing this informative blog. It helps a lot in getting our basic understanding right.

    I’m planning to start my own blog on topics pertaining to electronics and computer engineering. My purpose is to help students in understanding the concepts while I get to earn few bucks for the effort and time I put in, through the advertisements on my blog page. It would available for the students free of cost.

    I would be referring various books to create the contents for my blog. My idea is to look for the best possible explanation for a given concept and include it in my blog. So the final content of my blog would be like “Concept 1″ taken from “Book X”, “Concept 2″ taken from “Book Y” and so on. I would also be including my own understanding on these concepts.

    Would my work end up being copyright infringement?
    If yes, would it help if I provide citation to the original book and encourage readers to buy the book?

    Looking forward for your views on this.

    Thanks & Regards
    Vikram Sherigar

    Reply

    David Amkraut April 19, 2015 at 1:01 pm

    Whether this is copyright infringement depends on how much material is copied. If the amount is trivial, no infringement. If whole chunks of explanation, infringement.

    As a practical matter, probably many publishers would readily give permission for such usage without charge, provided there is a reference to the work.

    Reply

    Vikram Sherigar April 20, 2015 at 12:11 am

    Hi Joel,

    That sounds great !

    Many Thanks for your valuable Suggestions :)

    Reply

    Vikram Sherigar April 20, 2015 at 1:03 am

    Sorry… Thanks David… (Not Joel).. :)

    Reply

    judy March 18, 2015 at 4:47 pm

    Hello, this is excellent information thank you.

    Questions 1

    I developed training for a not for profit organisation ( Aboriginal Health Service) as a consultant. I have now been asked to do the same for another similar organisation. Question: can I use the material I developed for the second consultancy ?

    Question 2

    I am 60% thru my first book and it is about Women 50+ looking for a new way to work, leaving the 9-5 grind and applying their professional skills and attributes in an online business environment. I am developed a process of self assessment and using similar table headings from another author ie who you are ; what you have ; what you enjoy ; what problems could you help people to solve …..is this fair use ?

    Thank you
    Judy ( Australia)

    Reply

    Wendy Melnick March 13, 2015 at 11:19 am

    Hi, What if I just read an adorable true story on-line on a public site that talked about a family that rescued a bird…there are actual pics taken by the mom , etc…can I base my children’s book on that story? Can I do artistic renderings based on the pics and write my own original copy for the pages…or do I need to change it all for it to be mine? Must I ask for permission, even tho its been shared on many sights…ViraloNova, etc…its all over Facebook as well. Please advise.

    Reply

    Sheogorath March 13, 2015 at 1:04 pm

    Wendy, public =/= Public Domain. The reason the story you mention ‘is all over Facebook’ is because of the ToS one agrees to when making an account. The only way you can use the story in the way you want to is either with permission, or by basing your own story on the idea. And you definitely can’t copy the images or make illustrations based on them, either. That’s something else which requires permission. Again, make your own original illustrations if you don’t believe you can contact the other person or will obtain a licence.

    Reply

    Sheogorath March 8, 2015 at 5:09 pm

    Further to my reply above, not everything that’s copyrighted has an obvious mark, just as not everything with a copyright notice or a watermark has a copyright. An example would be a copy of ‘A Little Princess’ published in 1980 by Penguin. There will be a copyright notice on a work that was newly printed in that year, but because of the term of life + 70 here in Europe, there’s no copyright on Frances Hodgson Burnett’s work, and publisher’s copyright lasts only twenty-five years, so that copyright no longer exists thirty-five years after printing.

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    Nadine Frisch March 7, 2015 at 10:48 am

    What about images on the internet. If they aren’t copyrighted or watermarked. and freely able to be downloaded without having to go to another site to buy a license. I just want a cover that has food on it.

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    Sheogorath March 7, 2015 at 6:01 pm

    Because of automatic copyright, you must assume that things online are copyrighted if you haven’t sufficient information that says otherwise. Luckily, however, I know a way that you can find images that are legal to use without payment, both Public Domain and under copyright: Google Advanced Image Search.

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    Nadine Frisch March 8, 2015 at 3:05 pm

    I know about google image search. Do I put the image URL in the search? If they are copyrighted they show up either watermarked or with a tag on them. The one I picked does no.

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    Sheogorath March 8, 2015 at 4:55 pm

    No, no, no. You need the advanced image search so you can use the extra options. ‘Filter by license’, for example.

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    Sheogorath March 8, 2015 at 5:10 pm

    Further to my reply above, not everything that’s copyrighted has an obvious mark, just as not everything with a copyright notice or a watermark has a copyright. An example would be a copy of ‘A Little Princess’ published in 1980 by Penguin. There will be a copyright notice on a work that was newly printed in that year, but because of the term of life + 70 here in Europe, there’s no copyright on Frances Hodgson Burnett’s work, and publisher’s copyright lasts only twenty-five years, so that copyright no longer exists thirty-five years after printing.

    Reply

    Nadine Frisch March 9, 2015 at 5:42 pm

    I have the filter set to “labeled for reuse”

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    Sheogorath March 9, 2015 at 9:10 pm

    Yes, excellent. I would also advise that you set the filter to ‘labelled for commercial reuse’ if you plan to sell your book. Also, if you use a CC Licensed work, then make sure to follow the terms of the licence as closely as possible. A big company once used a CC Licensed image without attribution, and was successfully sued by the photographer for copyright infringement.

    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.

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    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

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    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?

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    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?

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    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.

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    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.

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    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?

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    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.

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    Maureen Frost April 6, 2015 at 11:31 am

    Thank you for all your valuable information.
    Pertaining to the above situation I am writing a book in which at the beginning of each chapter I will be likely taking direct quotes from newspaper articles. The majority of these articles are from quite a long time ago to start off with, but as I move forward in my chapters the quotes will be more recent. I will be providing the full reference information for each quote (e.g., newspaper name and date, author if known).
    Just wondering if all this will be OK – fair use? I don’t want to infringe upon anyone’s rights. Are these epigraphs, then and considered alright?
    Thank you so much.

    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.

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    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!

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    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

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    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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