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:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 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.
Related posts:
- Top 10 Myths, Lies and Misinformation about Copyright
- Self-Publishing Basics: A 5-Minute Guide to Copyright
- Copyright Page Samples You Can Copy and Paste Into Your Book
- Self-Publishing Basics: The Copyright Page
- Copyright Page Requirements for Books Printed Overseas
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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?
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.”
Wow. It’s so generous of you to take the time and explain this in such detail. Thank you for sharing!
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.
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!
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.
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?
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.
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.
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.
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!
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?
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.
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.
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.
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
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.