What Every Writer Ought to Know about Fair Use and Copyright

by Joel Friedlander on February 8, 2010 · 340 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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    { 323 comments… read them below or add one }

    Yogendra November 9, 2014 at 3:30 am

    if I want to write biography of some famous person it is natural that material will be matching with many other resources then can anyone claim on me for infringement of copyrights ?

    Reply

    M E Hammond November 4, 2014 at 11:48 am

    I own a very small publishing company whose niche is outdoor adventure guidebooks. We are currently considering a book proposal from one of our authors for a book comprised entirely of short inspirational quotes (everyone from Hippocrates to Bill Bryson) about being in the outdoors. Because the work itself is for profit, this would fail in the first instance, correct? However, I recently purchased a book of spiritual quotes from a large publisher that is essentially the same thing, the only difference being the number of quotes and the breadth of subject matter. There is not a single mention of permissions in the book. This is outside the scope of our expertise and I’m having trouble finding definitive answers, so I’m seeking guidance. My guess is that we would need permissions, but I’d like to know your thoughts.

    Reply

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    maggie November 2, 2014 at 10:10 am

    Mr. Friedlander, Thank you for the interesting and helpful responses.

    i wrote a poem as requested and presented it at a charity event. The beneficiaries asked for permission to put it on their website. (Sometimes individuals will ask for copies which I generally decline to give)

    I am willing to allow this current request but do not want widespread use of the poem. I want to be able to protect myself/ the work as I plan on compiling my other poetry and short stories into a book later on. My question is: How do I limit use/ indicate this to the charity group/ person.

    I want to do this without appearing mean spirited. I think often see poetry writing as no big deal. thank you.

    Reply

    Pia October 29, 2014 at 10:52 am

    I am writing a book about Frank Lloyd Wright and can’t find a colored image of a Hotel he designed, which was torn down, anywhere but on Google Images. The image I found does not have a credit line. Can I use it in my book that I hope to sell on Amazon?

    Reply

    Marcia October 20, 2014 at 8:15 am

    I would like to write an article using some of the quotes I used in an article I wrote for a newspaper I worked for. I realize when you work for a newspaper, they hold the copyright on your work. Do I need to get permission from them to use quotes in a new article from the one I wrote for them?

    Reply

    Kelley October 13, 2014 at 4:30 pm

    I am writing a book on how to coupon to save money. This book I am planning on hopefully making a profit on. I am also teaching a local Girl Scout troop how to coupon for charity. Now the book cover I was hoping to have a picture of myself along with the products I just purchased on one big shopping trips. There are a wide variety of products from paper products, personal care and pet supplies. My question is it legal for me to do this?

    Reply

    Mercedes October 10, 2014 at 12:24 pm

    I have written a novel where sometimes the boy says thing to the girl by way of song lyric and she rolls her eyes and says, “Okay, (insert name of artist).” For example, “I think I want to marry you.” and she replies, “Okay, Bruno Mars.” Would you say that was even close to an issue? I don’t think so but I have great respect for rules and want to make sure I follow them.

    Reply

    Nicole October 1, 2014 at 9:27 pm

    I am writing a book about peak performance strategies.

    Can I use pictures of me and famous people such as Tony Robbins, Les Brown, celebrities from the Secrets, Oscar winners or even moonwalkers?

    Can I put the picture at the front cover, back cover and inside the book without asking for their permission first? I do not have some of the contacts.

    I took the pictures with them ths year. I want to have a page that show pictures of me with them under (recommendation for success education page)

    Reply

    Nicole October 1, 2014 at 9:28 pm

    Thank you for the answer in advance.

    Reply

    Philipp Meier September 30, 2014 at 12:13 pm

    Hi, I want to quote a very short phrase of Will Smith’s song ‘Welcome to Miami’ in my manuscript. I want to quote the three words ‘Welcome to Miami’. Does he have a leg to stand on in court if I don’t ask Will Smith for permission?

    Reply

    Kathy September 27, 2014 at 5:33 am

    I am a visual artist. I am currently working on a piece and want to use a famous quote from a deceased writer/philosopher for my title. Will this be a copywrite infringement?

    Reply

    Russ September 21, 2014 at 2:46 am

    Great article. I’ve recently, while reading books, been making a habit of jotting down the most important points of each chapter. I’ve been considering posting these “summaries” online, with perhaps a link to amazon of the book on the same page to at least give the author the opportunity to make a sale from my audience. I’m wondering how this would be seen from a copyright standpoint? I would imagine that at the very most I’d get a request to take it down as I wouldn’t be using it to make money?

    Thanks
    Russ

    Reply

    David Amkraut (author of original article) September 25, 2014 at 12:08 am

    As usual, my comment is just general information, etc. etc.

    Summaries such as Russ describes would not pose a risk of copyright infringement, unless they were including significant copying. Remember the fundamental point that copyright protects only concrete expression, not ideas. Russ may discuss, summarize, boil down, deride, praise the content of books as he wishes. Based on his letter, the issue of fair use does not even arise, because— let us go back to fundamentals again— fair use protects only that which might otherwise be infringement. This does not sound like infringement at all because of the lack of copying.

    Reply

    C. House September 19, 2014 at 3:34 pm

    I apologize if this is a repeat question. I would love to make a motivational calander. It would be sold and considered ‘for profit’. I want to use a famous quote or 2 for each month. Would I need to get permission from the original author, speaker, etc to use them? For example, “Where you start is not as important as where you finish.’ -Zig Ziglar

    Would I need to get permission to use a quote such as this?

    Reply

    David Amkraut (author of original article) September 24, 2014 at 11:23 pm

    As usual, I would want to see the actual quotations before rendering a legal opinion. I offer only a general comment here. Brief quotations are not, repeat not, protected by copyright.

    By the way, another fact leading to protection for your intended use is that a lot of quotations are not really original to modern sources to which they are attributed. When you look at compendia of famous quotations, they will often list, for a particular quotation, a number of versions with different attributions.

    Reply

    Gabriel September 17, 2014 at 6:46 am

    This was very helpful.

    If possible, I have a specific scenario I still can’t make a call for fair use or infringiment:

    I am a writer(book, comic book, novel, tv series, whatever)
    I get some ideas from a fiction text(ShareAlike license), adapt it and include it as an element of my own history.

    For example: The original story i read talk about a sentient gramophone which uses vinyl plays to communicate with humans.

    Then, I decide to slightly modify this concept, turning it into a character on my comic book story.

    BUT I want to sell my book and to hold the rights to do so, exclusively. But the sharealike license says I must license this derivative work under the sames sharealike conditions.

    The question is: Is a work containing small adapted concepts from other works a derivative one? Or is this fair use?

    Thanks and sorry for the English, not a speaker.

    Reply

    Stacy September 15, 2014 at 1:20 pm

    I read your article of “fair use”. It is still hard to determine whether or not it could be a copyright infringement in my case. I would like to use classic Disney characters scanned or downloaded form online clip art sources for a storybook theme FREE community wide event. The purpose of the event is to promote early learning through reading, music and song and dance (at this event). It is a preschool we are discussing that is hosting this event, and it is a private enterprise not a public school. It also ties into Halloween, and children relate to these characters and often dress up in Disney costumes. Is it “fair use” to reproduce these Disney characters in print material and for marketing a FREE community wide fall festival event promoting literature and early learning using these classic Disney characters that children relate to and have for many, many years?
    I do not want to get sued and the preschool does not either, the event is local not regional nor national, so ad/marketing material will be distributed locally. Please advice I would greatly appreciate it very much. My event is nearing. Thanks you look forward to your response.

    Reply

    David Amkraut (author of original article) September 15, 2014 at 2:21 pm

    Approaching this situation from the standpoint of a lawyer, I would want to review the materials and intended uses after getting a retainer agreement from the organizer. (and charging my modest minimum fee.) Then I would offer a legal opinion—- it’s cool, it’s uncool, it’s cool with the following suggested changes, for example.

    Approaching the situation from the standpoint of a normal human being, however, I would say the same thing I have said regarding a number of other questions posed here. “What are the chances Disney would hear about this, would care about it, and would bother you and the children, especially over such a laudable activity? Or do worse than send you a polite or even a nasty letter?”

    Reply

    Stacy September 15, 2014 at 6:14 pm

    Thank you. And my thoughts were exactly that chances are they would never see it but I want to make sure that my reputation being in the creative services industry too, that I do not put anyone business in jeapordy knowingly. BTW…What is your modest fee?

    Reply

    David Amkraut (author of original article) September 15, 2014 at 8:56 pm

    Usually a modest $395/hour (trying to keep it under $400 so its affordable) with a minimum of $4,000 to $5,000. However, usually I represent aggrieved parties against infringers, when the fee is normally a contingency fee, rather than an hourly fee.

    At the moment I am very busy and taking few and selected matters.

    Reply

    Kriss September 15, 2014 at 11:10 am

    So if I wanted to compile a selection of posts from say Facebook, or craigslist, or the like. If I made sure no persona information of the people who did the original posts was on it, and I gave credit to the fact that I got it from such-and-such a site. Would that be elligialbe for fair use? Or is there a different set of legalities I would have to look into?

    Reply

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    Margaret September 5, 2014 at 10:14 am

    Thanks so much for writing this great article on copyright infingement.

    I am a children’s picture book writer and l would like to have my kid characters re-enacting a popular movie. I understand I can use the title (and only the title) but would it be copyright infringement if there were illustrations of my characters in costumes from this movie?

    Reply

    David Amkraut (author of original article) September 1, 2014 at 9:08 pm

    It would be helpful if James A were more specific. Object/Book is very broad. In Europe there are all kinds of rules about not affecting the integrity of a work of art.

    However, if we confine the question to the U.S., and to books and ordinary objects, the answer is that you can do whatever you want with it. For example, I have seen kids microwave LP records to warp them and turn them into clever salad bowls. Lots of people make art from found or purchased items. “Car art” (google the phrase for images) turns ordinary cars into art objects.

    As far as books and other printed material, you can do whatever you want with your copy. For example, you can take Time magazine, the Economist, or the New York Times, twist them, braid them together, paint them, cut pieces out of them, or scallop them as doilies, and you will have transformed them from something useless and harmful into something honest, attractive and useful. As a famous Russian anarchist once said, “Sometimes, in order to create, it is necessary to destroy.”

    Reply

    James A September 1, 2014 at 3:12 pm

    Do I have the right to reuse and alter an object/book, to make other things for resale.

    My thinking is this: If bought the book I should be allowed to alter it and resell it because I’m not making copies.

    I assume that if I buy a new Toyota car, I can customize it by changing color, wheels, and so on. And then resell as a car or sell parts or it as art.

    Thank you so much for this site.

    Regards,
    James

    Reply

    David Amkraut (author of original article) August 29, 2014 at 3:19 pm

    As an attorney, I’d gently remind that short phrases are not protected by copyright.

    As a businessman/author, I’d say the chances of anyone noticing, caring and bothering you over your use of this phrase approach the vanishing point.

    Good luck with your project.

    Reply

    Philipp Meier August 29, 2014 at 11:55 pm

    Thank you very much indeed David. This puts me at ease.

    Thank you also for wishing me luck with the project.

    Reply

    Philipp Meier August 29, 2014 at 2:18 pm

    Hi

    I’d like to write the following:

    1) ‘Let us pop a trip and open the doors of perception,’ says Josh.
    2) ‘It took us many hours to come down, and it was not before the next day that the doors of perception were closed again.’

    I picked up the phrase ‘the doors of perception’ from the film ‘The Doors’. (Jim Morrison or the actor Val Kilmer speaks about the doors of perception in the film ‘The Doors’. Mind you, he was not the first to use this phrase. British author Aldous Huxley had spoken about those doors before Jim when he recounted his experience with mescaline in his book Heaven and Hell.)

    Now, do I have to reckon to be sued? Is this a breach of copyright? Both the British author and Jim Morrison are dead. But their heirs might be alive. Since ‘the doors of perception’ is the title of the British author’s book, I wonder if the use of this phrase is substantial.

    Thank you very much indeed for giving me advice on this.

    Best regards
    Philipp

    Reply

    Susan Diaz August 24, 2014 at 3:29 pm

    Hello,

    I am writing a children’s book. I want to have watercolor illustrations of the backs of famous players jersey that have their names. Also the recent world cup ball angina in as a watercolor illustration. Would I be in trouble for this? It is a counting book.

    Reply

    Andrew Kalista August 22, 2014 at 2:12 am

    I need your help. I am a self employed English Language teacher in Poland. I am making a website to advertise my services to Businesses.

    My query involves allowing the viewer to see some of the EFL books I possess and teach from.
    I want to show the Cover, the Contents pages, an example of 1 unit of 4 pages and the final page (11 pages max). 4 or 5 publishers will be used.

    I want them to evaluate the books they wish to use to suit their needs and levels; then there will be a link to a bookshop where they can buy the book for themselves.

    I can post the pictures of the pages with watermarks of the publishers name over it so they cannot print it to use; or I can do something else if needed.

    I am just trying to alert the companies, who may have never studied a language before, to the kinds of wonderful materials out there that would relate to their business needs. In doing so promote the publishers books.

    Do I need to ask each Publisher for permission or can this be ‘fair use’.

    Regards
    Andrew Kalista

    Reply

    David Amkraut (author of original article) August 14, 2014 at 1:37 pm

    Re: Sarah’s question re use of anime graphics

    As usual, one has to make the standard disclaimer that one cannot offer legal advice without seeing the images and the context in which they are being used, etc. etc.

    However, i suspect courts would be sympathetic to the use, especially because it is impossible to intelligently discuss the subject without illustrations of the anime themselves. Could one discuss Rembrandt’s use of light or Hopper’s “metaphors of loneliness” without showing the artists’ works? The discussion is useful though in a for-profit book and the use certainly does not damage the creators’ market for their anime work.

    It is also unlikely this use would come to the attention of the copyright owner or that they’d care or bother you. But that is a practical impression, not a legal analysis.

    Reply

    Sarah August 14, 2014 at 12:57 pm

    This is a great article! I really appreciate you going into detail with specific cases. I also have a question. I am helping my father self-publish his first book, Parent’s Guide to Anime, which is a guide for parents who are trying to understand Japanese animation. In the book, he goes into the different genres, history, and culture of Japan, and to illustrate his points, uses images from various anime. He uses them to show things like how the acceptable violence and nudity levels in Japan are different than in the United States.

    It would fail on the first factor because it is for profit. Would using these images be considered fair use or copyright infringement?

    Reply

    Jewel Allen August 11, 2014 at 11:57 am

    Hi David,

    What an great article and informative thread. I own a memoir publishing company and have clients who would like to include lyrics of their favorite songs from childhood in their books. The books will be published and distributed just among their family. What constitutes fair use? Can we include the lyrics with attribution for this purpose or do we need to get copyright permission?

    Reply

    David Amkraut (author of original article) August 8, 2014 at 10:08 pm

    It would be irresponsible for me (or any copyright lawyer) to venture an opinion without actually seeing the passages at issue and their use in context. In particular, I would want to see how “relatively brief” the passages are.

    It sounds like a useful sort of application.

    Reply

    Sean August 9, 2014 at 9:27 am

    Thanks for the response. By brief, I mean around 300 words. But as you’ve pointed out elsewhere, there’s no predefined cutoff point when it comes to evaluating excerpt length. Generally, each passage expresses a complete idea or argument. Here’s an example (which happens to be in the public domain–but, hopefully, will demonstrate the intent of the use comparable passages under copyright):

    Thomas Hobbes, Leviathan

    Whatsoever therefore is consequent to a time of Warre, where every man is Enemy to every man; the same is consequent to the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withall. In such condition, there is no place for Industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation, nor use of the 5 commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.

    It may seem strange to some man, that has not well weighed these things; that Nature should thus dissociate, and render men apt to invade, and destroy one another: and he may therefore, not trusting to this Inference, made from the Passions, desire perhaps to have the same confirmed by Experience. Let him therefore consider with himselfe, when taking a journey, he armes himselfe, and seeks to go 15 well accompanied; when going to sleep, he locks his dores; when even in his house he locks his chests; and this when he knows there bee Lawes, and publike Officers, armed, to revenge all injuries shall bee done him; what opinion he has of his fellow subjects, when he rides armed; of his fellow Citizens, when he locks his dores; and of his children, and servants, when he locks his chests. Does he not there as much 20 accuse mankind by his actions, as I do by my words? But neither of us accuse mans nature in it. The Desires, and other Passions of man, are in themselves no Sin. No more are the Actions, that proceed from those Passions, till they know a Law that forbids them; which till Lawes be made they cannot know: nor can any Law be made, till they have agreed upon the Person that shall make it. 25

    It may peradventure be thought, there was never such a time, nor condition of warre as this; and I believe it was never generally so, over all the world: but there are many places, where they live so now. For the savage people in many places of America, except the government of small Families, the concord whereof dependeth on naturall lust, have no government at all; and live at this day in that 30 brutish manner, as I said before. Howsoever, it may be perceived what manner of life there would be, where there were no common Power to feare; by the manner of life, which men that have formerly lived under a peacefull government, use to degenerate into, in a civill Warre.

    But though there had never been any time, wherein particular men were in 35 a condition of warre one against another; yet in all times, Kings, and persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which 40 is a posture of War. But because they uphold thereby, the Industry of their Subjects; there does not follow from it, that misery, which accompanies the Liberty of particular men.

    Reply

    Sean August 8, 2014 at 4:56 pm

    Hi Joel & David,

    First off, I want to join the other readers in thanking you for taking the time to write an extremely helpful primer on fair use and for generously answering all of our questions. I have another.

    My partner and I are developing a mobile app that we intend to sell on the web. This app will help students prepare for standardized exams such as the SAT and ACT, by developing their critical reading skills. The app will contain brief passages–including nonfiction, fiction, and poetry–from public domain and copyrighted books, followed by a series of questions based on a given passage that develop and test comprehension–as well as develop the capacity to consider the texts with critical acumen. The app will include attributions for the passages used.

    It fails on factor 1, since we’d be selling the app for profit. But the use is for critical/educational purposes and passages would be relatively brief. Given this, would our app constitute fair use?

    Reply

    David Amkraut (author of original article) August 8, 2014 at 10:00 am

    2nd Q. As a matter of law, brief quotations may be freely used.

    1st Q. I should be cautious of course and say that I need to see the quotations, the context, etc. But don’t all the fair use factors favor you? And from a practical point of view, what are the chances that anyone quoted would hear of the use, be upset rather than flattered, or contact you, or threaten to sue, or sue. About the same as you being hit by a meteorite in the next week, I’d say.

    Reply

    Bernard Kelly August 8, 2014 at 1:07 pm

    Thank you David

    Reply

    Bernard Kelly August 8, 2014 at 4:35 am

    Hi Joel,
    I have just completed my first book. In support of my explanation of the Subconscious mind I quoted an author who had written a book on the subject and included an extract of his explanation of the subconscious mind including some 100 words directly from his book. I put the extract in italics, quoting the authors name and title of the book. I stated unambiguously that the extract I had used from this author was an excellent description of the subconscious mind, thereby complementing this author and the respective work. Is such use permitted or do I need author permission?

    I also used a quote at the heading of each chapter, from famous people some alive, some dead. Is that permitted?

    Would really appreciate your feedback
    Thank you

    Bernard Kelly

    Reply

    Betty Miller August 4, 2014 at 9:41 am

    I am making a program for Extension Homemakers Annual Meeting. The theme is UK Cooperative Extension Celebrates 100 years. I would like to put a picture on the program cover that I looked up. An old woman working in the old fashioned kitchen while the young girl plays with her kitten. Photograph by Bernard Hoffman, Maine, 1942. Source: LIFE Photo Archive, hosted by Google.
    Would this violate copyright?

    Reply

    James July 31, 2014 at 7:04 am

    Hello. I want to create a daily calendar. It will contain a quote from many different people on the topic of atheism on each page. I am led to believe that quotes before 1923 are public domain. Is this correct? I am in Canada. How does one gain permission to use later quotes?

    Thanks

    Reply

    abhinav singh July 29, 2014 at 3:51 am

    hope i get an answer
    i have scanned 100 books and converted them in pdf
    now i thinking to put all these pdf files on internet free of cost for students.
    so is it legal or not?

    Reply

    Joel Friedlander July 29, 2014 at 11:31 am

    Are the books protected by copyright? Did you get permission from the copyright owners? If not, you will open yourself to legal action against you for copyright infringement.

    Reply

    Jim Barnes July 24, 2014 at 1:22 pm

    Sorry David, I saw a thanks Joel on another comment.

    Reply

    Jim Barnes July 24, 2014 at 1:20 pm

    Joel:

    Here’s my situation. My client is an airport surrounded by corporations. We would like to use corporate logos to show who’s here, so airlines will bring more planes to serve these companies. We have no endorsements from companies.

    Reply

    Jill Riter July 23, 2014 at 12:35 pm

    Hi David,

    What if the reproduction is simply for a personal journal. For example, I am reading an article and I press print, 3-hole punch and put in my personal binder for reading or study and then journaling.

    Thank you,

    Jill Riter

    Reply

    Ed Losby July 16, 2014 at 11:41 am

    Great article on what I thought was a more understandable aspect of copyright law. I was refused service in my attempt to get a 1974 VW vehicle brochure color copied at a local print shop with the owner citing copyright protection. I was seeking one copy for personal use. Clear example of “Fair Use” correct?

    Reply

    Diana Leslie Rowland July 15, 2014 at 1:39 am

    Dear David – Thank you so much for replying so promptly and for the positive response! It’s my desire to have a positive and productive
    interaction with the estate of K Gibran. We have the mutual vision of
    bringing grace and beauty to the heart and souls of readers.
    Today I learned that there’s a movie coming out on Gibran’s The Prophet. It was just reviewed at Cannes. More people will be aware of his inspiring work now and that’s a good thing. I was wishing that my book could be advertised along with the movie in some way. I can contact the film maker (a woman). Can you suggest some offer I might make in return for an increased awareness of my book or is this a preposterous idea? Again, thank you so much for your advice. I wish you an inspiring and productive year.
    P.S. I wonder if I should have a one page website in case someone who has seen the movie googles Gibran. This would be another challenge, however, and I should be spending my time on my other projects.
    Thank you for any comment you might feel inspired to make.
    Diana Leslie Rowland

    Reply

    David Amkraut (author of original article) July 15, 2014 at 9:50 am

    These are business and marketing questions, not legal questions. Good luck with your project. I will comment only that K. Gibran’s nation would be in much happier shape if the populace were motivated by his philosophy rather than that of the groups that now control the country.

    Reply

    Diana Leslie Rowland July 15, 2014 at 10:51 am

    Correct. They’re not legal questions and I apologize.
    It’s also true that if the nation — shall we say every nation? —
    would be in much happier shape if the populace were motivated
    by Gibran’s philosophy. But then, it all begins within each of us.

    Again, thank you for generously offering your time to answer questions. It means a great deal to everyone.
    Diana

    Reply

    David Amkraut (author of original article) July 14, 2014 at 9:09 pm

    Sometimes, whether to use a quotation is more a matter of common sense than of law. In this case, short phrases are not copyrightable. Second, even if this one sentence were protected by copyright, the use of it here might be fair use. (I don’t know any details about the context in which it will be used, but certainly some of the factors favor fair use.) Third, is it really likely that the estate of K Gibran will go after the author for such a use, especially in a children’s book?

    Reply

    Diana Leslie Rowland July 14, 2014 at 4:20 pm

    Dear David – I’ve just completed a children’s book titled “It’s Raining
    Sneakers” that revolves around Kahlil Gibran’s words, “And forget not
    that the earth delights to feel your bare feet and the winds long to play
    with your hair.” (Quoted twice in the book)

    My understanding (read this) was that you could feel free to quote someone if they were deceased for more than 50 years. I’ve tried to double check this in the past–in fact, I believe I wrote to you but didn’t receive an answer. Inspired with the story, I continued to write. Now that I’ve FINISHED writing it — in fact, it’s ready for publication–, I hope that what I’ve done is legal! It has to be . . .

    Thank you very much for your valuable information. I hope it’s positive.
    Diana

    Reply

    Marili July 8, 2014 at 12:57 am

    Hello,

    I found your site very useful and I thank you.
    I still can’t understand if I would fall under fair use in the following situation. I’m an author of a trilogy where the heroine, puts herself into situations imagined from different romantic comedies. Exemple: She tries to date a younger man because of the film The proposal, or she travels to London because of the movie Notting Hill, or she tries to reconnect qwith a former lover because of th film Ghosts of girlfriends past. I understood that there is no problem as using the film title but what about a small quote I use in every beginning of a chapter? I use a quote from one line -10 words- to a small dialogue -usually four lines about 30 words, although there are two about 46 and 90 words. Do you know if I would be in trouble? I also note the title of the film the quote is taken.

    I’d really appreciate your answer.

    Marili

    Reply

    molly July 6, 2014 at 2:01 pm

    I’m writing a small how-to book for publication and want to include quotes from famous people. These would generally be one to two sentences, used at the beginning of a chapter. Would this pass the fair use criteria? Thanks, Molly

    Reply

    Ed Vallender July 6, 2014 at 12:16 pm

    David and Joel,
    Embarrassing addendum: make that excerpts of song lyrics not excepts. Writers are not always good editors. Thanks again.

    Reply

    Ed Vallender July 6, 2014 at 11:56 am

    Dear David and Joel,
    I am preparing to publish an ebook on relationships I’ve had and why it seems to be so difficult, once we fall in love, to build a life long, successful and rewarding relationship. My question involves using short excepts (emphasis on short) of popular song lyrics to add the songwriter’s description to my own of what it’s like when it’s terrific and working and what it’s like when it’s not and it’s over. I’m referencing the songwriter(s), the title, the album and the release date. Ex: The Beatles, I Saw Her Standing There, Yesterday, Coldplay, Viva la Vida I Use to Rule the World, The Eagles Take It to the Limit, etc. Once again, emphasis on short excepts. I believe they add a lot of poignancy to some important emotions. I’ve read your other responses to the use of song lyrics but I’m still not sure I can do this. Of course, I hope to earn money selling the book. What do you think?

    Reply

    David Amkraut (author of original article) July 6, 2014 at 4:25 pm

    I think that an expert can not responsibly give an opinion without seeing the actual quotations and the exact passages in which Ed proposes to use them in his book— the quotations in context. That is what any attorney would tell Ed.

    Reply

    Ed Vallender July 7, 2014 at 3:26 pm

    Dear David,
    Thanks for your response. There seems to be an array of opinions about using song lyrics. On one side using only a small portion of a song’s lyrics in a way that does not damage or cause harm to the rights holder (or songwriter) may be alright. In the middle I found a website that said ‘no more than one line’ to another website who said if you quote any part of a song by someone like the Stones or the Eagles you’re going to get a bill, or at least a phone call.

    It seems the most successful songs are those that tap into those emotions and experiences we all share of love, loss, loneliness, rejection, etc. I chose lyrics that reflected something that had happened to me, both exhilarating and heartbreaking, with the poetry of songs we all know and can relate too. If anything I would think reacquainting the reader and their personal experiences with those songs would actually help sell some additional albums. But hey, that’s just me. It seems there are quite a few others out there with the same idea. If you like I can email a couple of examples. Thanks again.

    Reply

    David Amkraut (author of original article) July 7, 2014 at 3:44 pm

    Take the advice found on websites with a grain of salt,k unless you are certain the writer is a real expert. Even then, a responsible person can not speak about your use without seeing the details. 8A lawyer could look at each example and offer an opinion as to whether the use is a “fair use.” However, it is also true that owners of copyright in well known music such as that of the Eagles or Stones are notoriously aggressive in protecting their rights, and take an outrageously expansive view of what their rights are. This is one of many situations in which well-heeled property owners can get away with bullying users into stopping use of material, even when the use is perfectly proper.

    Reply

    Ed Vallender July 7, 2014 at 4:33 pm

    Dear David,
    It seems that to error on the side of caution may be to avoid this offramp on my way to becoming a best selling author. I’ll just have to get there without (plugging, in my view) Glenn Frey, Don Henley, Sting and Lennon/McCartney.

    Thanks again. Seems like Fair Use depends pretty much on the mood of the judge. I’m looking forward to reading more from you and Joel.

    Heather Weaver July 4, 2014 at 6:53 pm

    Dear David & Joel,

    Thank you for your work and public outreach.
    I have a chapter in a forthcoming edited book of social/cultural history. The chapter, currently in revision, analyzes and contextualises depictions of schooling in early-20th-century magazine cover art. Of the two dozen covers currently included, 9 are not in the public domain — these 9 date from 1925 to 1936 and each involve a well-known licensing company and/or a well-known artist.
    Would my use of the 9 non-PD covers be a case of (quoting David for both):

    (Fair Use) 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?
    (Not Fair Use) Don’t steal photos {illustrations in my case}. Buy a license.

    Also, would it help or hinder matters to use a crop or detail rather than the entire cover?
    And what about using a scan of a cover from a university library (with old subscription label, library stamp, etc) rather than the official image from the licensing company?

    With thanks and kind regards,
    Heather

    Reply

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