Every once in a while, I get an email from someone asking about the legalities of publishing a book of quotations they find inspirational, educational, or just plain funny. Their motives are laudable; they want to share these insights with readers. Or their motives are monetary; they think a book of quotes will be easy to put together and quick to sell.
I shake my head. Using a short quote in a social media posting is one thing, but putting together a book or website that relies almost entirely on work created by others raises a wasp’s nest of legal issues. It can be done, but not without doing some homework. In fact, a lot of homework.
Simply giving credit to the original creators of the quotes is not going to be enough to protect you from copyright infringement claims. For every single quotation, you need to determine its copyright status and whether you should get permission.
Or, to break it into steps, for every quote you need to ask —
- How old is the quote?
- How distinctive is the quote?
- How are you going to use it?
How Old is the Quote?
If a quote was first published before 1923, then most likely its copyright has expired and the quote has fallen into the “public domain.” You may use it without getting permission. For example, you may quote Shakespeare, Jane Austin, Benjamin Franklin, and Confucius.
But there is an exception for trademarks and advertising slogans. Trademark rights don’t expire as long as the trademark is still in use. Good to the Last Drop for Maxwell House coffee is close to a hundred years old and still protected by trademark law. For more guidance on using trademarks, take a look at Who Says I Can’t Use Trademarks?
So, if a quotation was first published before 1923 and is not an advertising slogan that’s still is use, there is little risk is using it (although you should always give attribution). For all other quotes, let’s move on to questions 2 and 3.
How Distinctive is the Quote?
You’ve probably heard that using short quotes is safe. Usually, but not always.
The general rule is that short phrases are not protected by copyright because they are too short to contain sufficient original expression. That’s ironic since it is harder to write something short and good than to write something long and bland.
There is no safe-harbor rule on how many words you may quote before you get into infringement territory. I can’t say that you are safe if you use 10, 50 or 100 words, but it’s best to use only what you need. The shorter, the better.
But there is always some legal risk, because even short quotes may be protected by copyright.
For example, E.T. Phone Home.
Four words, assuming you count E and T as words. Yet, a court stopped a manufacturer from selling mugs printed with E.T. Phone Home. It held that the phrase was protected by copyright.
Courts have held that short phrases are protected if they conjure up images of a copyrightable character, such as E.T. Other examples are Bond. James Bond or Look. Up in the sky. It’s a bird. It’s a plane. It’s Superman.
Also protected are short phrases that are distinguished by conciseness, cleverness, and insight, such as Ashleigh Brilliant’s I may not be perfect but parts of me are excellent. Eleven words! But still protected by copyright.
Many poems and lyrics fall into this category as well.
So if a quote, no matter how short, is highly distinctive or conjures up a larger copyrighted work, then you need to consider question 3.
How are you using the quote?
Some uses of copyrighted material are permitted under the doctrine of fair use.
Fair use is the use of copyrighted material for a limited purpose, such as education, news reporting, commentary, research, or criticism, or a “transformative” purpose such as parody. For more information about Fair Use, see What Every Writer Ought to Known about Fair Use and Copyright.
The line between fair use and infringement is murky. Courts consider four factors.
- The purpose and character of the use. Is it for commentary, criticism or educational purposes? Is it commercial? Is the new work transformative, meaning it has been altered significantly to add a new meaning?
- The nature of the original work. Using unpublished works is less likely to be fair use.
- The amount and substantiality of the portion used in relation to the original work as a whole. The more you use, the less likely it will be considered fair use, especially if you use the “heart” of a work.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
Judges and juries are not predictable in how they apply these four factors, so no lawyer can guaranty that your use is fair use. Too much depends on the facts of the case, the aggressiveness of the copyright owner, and the perspective of the judge. But here are some examples.
- If, in addition to using quotations, you add annotations that analyze the development of themes over time, then your book may satisfy the first factor as a scholarly work as be considered fair use.
- If all you do is cut-and-paste copyright-protected quotes without comment, that won’t be fair use.
- If you use a couple of quotes by Steven Jobs in a book discussing business management that might be fair use. But if you publish a book containing nothing but Steve Jobs’ quotes that would not be fair use. You are piggy-backing on someone else’s creation and not adding your own.
- If you use all or a substantial portion of a work, such as an entire haiku or the distinctive lyrics of a song, don’t count on the fair use doctrine protecting you.
Finally, using copyright-protected quotes on merchandise, such as t-shirts or coffee mugs, is not fair use. It’s too commercial. For similar reasons, I recommend against using a copyright-protected quote on a book cover.
By the way, hymns and prayers may be protected by copyright just like any other writing. So don’t assume a hymn or prayer is in the public domain if it was written in the last hundred years. You need to do your homework.
What’s the Alternative?
The safest route is to get permission from the owners of all quotes that may still be subject to copyright protection. This is a daunting task, and there are copyright clearance experts to help you.
Or write your own pithy insights. Contribute new quotes to the world.
Now, I predict that this post will generate emails from people accusing me of trying to scare writers with legal mumbo-jumbo. Not so. I am trying to teach writers about legal risks. Writers can and should take risks, even legal risks. But be smart about them. Take risks that improve your work or your reach and avoid those that are careless or worthless.
As I often say, stay out of court and at your desk.
Disclaimer: Helen Sedwick is licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.