What Every Writer Ought to Know about Fair Use and Copyright

by | Feb 8, 2010

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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562 Comments

  1. Laurel

    Can I use the word “cpr” in my book title?

    Reply
  2. Danielle Stewart

    Hi! Do I have to get permission to use/include the name and likeness of the president or Vice President in a children’s book? If I do, can I get around this by not actually naming the person and including just a faceless caricature, which simply alludes to the person?

    Reply
  3. Gee

    Amazing article and very helpful. Sharon I have a question. If I was to setup an online publication or social media channel that focuses on promoting inspiring song lyrics and educates visually the breakdown of a rhyme scheme for the chosen song lyrics, while promoting the artist, the song title, and album the lyrics were from, would this be fair use? The only revenue that may be returned would be through sponsoring or product advertising from business’ related to music that may like to buy add space on the site/channel.

    Reply
  4. David Adam

    Would like to use 5, maybe 10 seconds of a handful (less than 10) of songs for a video to promote the idea of singing song lyrics for 20 seconds while washing hands for COVID-19 prevention on a college campus. Fall under fair use?

    Reply
  5. Sharon Goldinger

    John, my experience has been every time a chart was used in a book that I worked on, the author had to get permission from the original source to use it in the book. That’s what I would recommend.

    Reply
  6. John Leveille Leveille

    I am writing an academic textbook in sociology and would like to include four or five charts from other published books in my book. My question is, is it fair use to use these charts, or do I need to get permission from the publishers?

    Reply
  7. Marie Skelton

    Thank you so much for this article. I am writing a non-fiction book on resiliency (for profit) with a significant historical review of how we got to this point.
    As long as I reference properly, am I generally allowed to re-use or quote the following:
    – a sentence or two that a person said for a news article/story (within last 20 years), or does the news outlet own that quote/content?
    – a sentence or two of text from a scholarly article that is behind a firewall
    – a sentence or two of text from a current, published book
    – a full paraphrased overview (in a single condensed paragraph) of a research study

    I guess where I am confused is that it is all for profit (your first point), so does that mean I shouldn’t quote any of my research material?

    Reply
    • Sharon Goldinger

      Marie, as long as you properly reference these kinds of short quoted material, you should be fine. Be sure to refer to the Chicago Manual of Style regarding how to properly cite your sources (information and format).

      Reply
      • Marie

        Thanks Sharon! I’m so grateful for the confirmation (and super quick response too!)

        Reply
  8. Sharon Goldinger

    Dilek, many factors have to be considered in answering your questions, which I believe relate to Fair Use under US Copyright law. I recommend you consult an intellectual property attorney for the best answers.

    Reply
    • Dilek Nur ÜNSÜR

      Thanks a lot Sharon for your reply, I really appreciate.

      Reply
  9. Dilek Nur ÜNSÜR

    Hi, Thanks a lot for clarifying what fair use is. I have discovered this article when I tried to find an information about the use of book cover images (in a thumbnail size) in a research article. Apparently no one dig into this issue. I am analyzing over 30 book covers of foreign editions from graphic design and semiotic perspectives. In most cases, I criticize their use of stereotypical images that are related to author’s culture. So, do you think I might need permission for each book cover image? The number of book covers that I analyzed is high, and there is no way to find the designer or getting an answer from each publisher (as there are old book covers as well). In this case, I am very confused. I would be so happy if you can help me on this. Thank you.

    Reply
  10. Joanne Lynam

    Hi, not sure who I’m addressing here – Joel or Sharon so forgive me for that.
    At the top of this page about Fair Use & Copyright and after the narrative there are Q&A’s.
    One of the earlier ones posted is from Flossie Stewart 2nd December, 2019 @4:26pm to which Sharon replied.
    I mention this particular letter as my wife, Jo, is/has done a similar project, I believe – in my opinion.
    Some background – we have a disabled daughter who is now 25, lives on her own, has her own business and is now paying off her home. To get to this point has been an uphill slog for us, my wife in particular, and we encountered lots of ‘pitfalls’ along the way.
    So, to help others along a similar path Jo thought to write a book about our journey, well her’s and Emma’s, our daughter.
    By the time Jo finished her manuscript she had amassed over 30 chapters. Our problems started when Jo sent her work to the publishing house and they saw all the quotes Jo had incorporated in her work. They started asking/talking about copyrights and permission to use these words/phases.
    At the start of each chapter Jo would take words, phases, quotes, etc. used by people whose works she had read or looked up on the net for quotes from famous people. Quotes which Jo thought appropriate for the theme/body of that chapter. Occasionally she would use a 1 or 2 line quote of someone in the actual body of the chapter.

    The problems we are finding since hearing back from the publishers are: –
    1. trying to find who has the copyright of some works
    2. trying to find what book a quote was published in yet alone what page it is on
    3. trying to wade through the legal nightmare of this whole process
    While searching I stumbled on this page and reading Flossie’s story I thought ‘isn’t this almost exactly what Jo has done?’ Each quote ranges from 1 line to possibly 4 lines and is in bold italic print at the start of each chapter so that it stands alone from Jo’s narrative. At the end of the quote on the next line down and to the right hand side of the page she lists the owner’s name. For quotes in the body of the paragraph, and in these cases they are only 1 (at most 2) lines long with the author/owners name in brackets immediately before or after the quote.

    The big question, can Jo claim Fair Use? If not, is there someone or some site that can helps us get through the copyright permission trail? Do you know of someone in Australia we could go to see to help us through this ‘jungle’.

    Kind regards, Greg Lynam
    On Jo’s behalf

    Reply
  11. Sharon

    Flossie, a quote at the beginning of a chapter (or book) is called an epigraph. You don’t need to cite it or get permission to use it (I presume it’s not more than a sentence). You just need the name of the person who said the quote. It sounds like you should be okay with the other quotes in your book (presumably not more than a few sentences) and including a proper footnote or endnote.

    Reply
    • Loren Ellis

      Hello Sharon, I want to use just a few quotes from Henry Ford, Albert Einstein. I’ve tried to contact the Ford Foundation no response. May I use short quotes and of course credit Henry Ford for my book and documentary? Thank you Loren Ellis

      Reply
      • Sharon Goldinger

        Loren, that should be fine. I’m guessing most of these quotes are in the public domain and aren’t very long, which is why the Foundation probably did not respond to you.

        Reply
  12. Flossie Stewart

    I have written a non-fiction book I am titling “CPR For Your Faith From Beyond Death’s Door”, which will include my story of my NDE (near death experience) in a car accident, and then I have used this as a sort of backdrop for the rest of the book, in which I explain what I have learned in the years since on my road to healing. The book is written especially for those who have been through traumatic events such as what I went through, and who have given up on their faith, so the latter part of the book is written in a teaching perspective, so it’s mainly an encouragement book. The medical aspect of the title is inspired by the fact that my nursing career was derailed because of the accident. As I also use a “ship” theme throughout the book, I have placed quotes at the beginning of some of the chapters to illustrate the concepts I talk about in the chapters. I have quotes from Eva Hart (Titanic Survivor), Captain Arthur H. Rostron (Commander of Carpathia), Corrie ten Boom, Priscilla Shirer (I’ve actually messaged her contact people about her quote, which I merely felt was perfect to introduce the theme of the book), and Billy Graham. I also have a couple from John Newton, the writer of Amazing Grace, although I am fairly certain his would be in the public domain. I mention Captain Smith a couple of times to illustrate a point, but included a citation for him. I briefly quoted Eva Hart in one of the chapters, from her interview in about ’93, and cited this also. Other than these incidences, I have only included these quotes at the beginning of the chapters, (I have mostly used Bible verses, KJV unless otherwise noted (NKJV), for which I included copyright wording on the copyright page) to illustrate my points made throughout the chapters, which are well discussed, all my commentary, (except for the quotes, of course), from a teaching/encouraging standpoint. I don’t even care if I make a dime off of this book, and will likely give away as many copies as I can. My main purpose for the book is to help people. If I have properly cited my sources for the few quotes and the very brief quotes from Miss Hart’s interview, would this be considered fair use?

    Reply
  13. Sharon

    Michael, I’m not a lawyer but from what you describe as long as you quote those people accurately, use complete endnotes (per the Chicago Manual of Style), and don’t use too much or too many, I don’t see a problem with your plan.

    Reply
  14. Michael

    If I write a book about a relatively recent sporting event (it happened in the 1980s), am I allowed to use brief quotations from books written by people (players, managers, etc.) who took part in the event? I would certainly attribute their quotes to their published works, and my book would examine the event from a number of standpoints, as well as include my own commentary on it. Would this constitute fair use?

    Reply
  15. Sharon

    Soledad, some sites allow for this. I would first check the terms of use on the website and then fully cite it in your endnotes (see the Chicago Manual of Style for how to do that) as the source for the definition.

    Reply
  16. Soledad

    Hello! I am writing a book that is about how to cope with a specific neurological pathology by practicing specific techniques of kundalini yoga. The first part of the book provides a thorough information regarding this pathology and includes few scientific researches. In addition to this, there is a part of the book where some parts of the brain are explained in order to get a deeper insight about the rationale of the yoga techniques used. I am not a doctor, so i have to copy and paste the definitions of the brain, lymbic system, memory processing, hippothalamus, etc. Do I have to ask for permission to use this concepts in my (commercial) book? Or can be considered as creative commons?
    thanks for your help

    Sole

    Reply
  17. Randy Woods

    A VERY complex buried treasure hunt book was published 40 years ago
    12 treasures, in a short book with confusing clues and 12 pictures with hidden clues
    12 stones worth about $1000 (in 1982) were keep in a safe, ready to reward successful hunts, return the key in the box for the matching prize.

    The publisher died in 2005 and the rights where bought up in a bankruptcy sale
    The new owner reprinted soon thereafter and hasn’t done anything since
    People wonder if another treasure box is found in the new owner will reward the seeker with a gemstone.

    Fan websites have popped up that copy the book word for word and include the art, they don’t display any advertising.

    The news has covered the search and recently documentaries have been aired that quote the book and show the art, even interview the artist (he has the original paintings)
    I got hooked during the long government shutdown and with nothing to analyze
    in the lab I went to work on the book.

    The government shutdown gave me time to decode the book, I have my dig permit and Monday is the day. Dig it up and get a sponsor to go for the rest.

    How would copywrite law handle a solution book/website that quoted the original work, it would be imposable to paraphrase the tricky word play. In case of the two boxes that have been discovered, the book clues where shown in the news and online to show how they managed to solve the puzzle

    The court would clearly see the book was meant to be decoded, I just need to figure how to make some money off the discoveries.

    Every treasure box found lowers the value of the original work and increase the value of solution book but time is limited the hoopla will fade quickly once have 8-9 boxes or even
    I ace the hardest one and score ten boxes.

    Reply
    • Sharon

      Randy, what an interesting question–and definitely one for an intellectual property attorney.

      Reply
    • Chris

      Randy, what this reminds me of most is the “acquired liability” that firms who purchased companies with asbestos exposure liability face – it seems like the opposite of a copyright issue, and rather a liability issue to all of those publishing this…if it can be established that the book’s value is linked to the reward, then liability can be assigned to the person who bought its rights. The other publishers potentially have liability regardless of whether they profited off of the publication or intended to (firstly, the exposure they received could have value, but I believe their liability is totally independent of this, since it’s not governed by copyright issues) – to extend the metaphor, litigation of asbestos has expanded from those who mined and sold it knowing its risks to those who sold parts containing it to those whose properties did, etc. … but the crucial issue really is that the industry I am comparing your treasure map to really was built by many lawyers, judges who “for whatever reason sided with them”… and is based on an escalation of power and the perpetuation of a huge industry built by people who essentially were willing to take huge risks up front and now control a significant sector of certain state economies… so law does not exist in this vacuum and the dollars and cents do not add up – $10,000 in 1980 money X10 is not worth a good lawyer’s time and there is no way to extend the liability to more cases… and that’s what really drives the legal system….

      Reply
  18. Sharon

    Nella, citing them in your bibliography is good. I would also create an endnote for each study/publication you are citing.

    Reply
  19. Sharon

    Naomi, I have the same concerns. At a minimum they should include the name of the person giving the blurb, and I think it would be a very good idea to create a complete endnote for the quote.

    Reply
  20. Nella

    In one of the chapters in my book, I will be discussing certain research studies. I cited the sources and included them in my bibliography. Do I still need permission? I didn’t include any direct quotes. Thanks.

    Reply
  21. Naomi

    Hi,
    I’m working on a historical non-fiction book as an editor, and the authors have included a full quote of a blurb from the back of a novel. They do say that the quote comes from the back of the book, but no other details (publisher, edition, etc). It is essentially an advertisement, and there is no acknowledged author of the blurb. Can they use this material in a book that will be sold?
    Thanks for any insight!

    Reply
  22. Clic Here

    It seems reasonable to develop exceptions to copyright to grant free access to creative works. The problem is that for any decision that you are thinking you must protect the fundamental right of the author to be paid for any use of his work.

    Reply
  23. Conception

    I took pictures of several branded toys in a permanent exhibition. For fun, i decided to create a sort of collage that compliment the toy (something nice) and turned it into a sketch. Friends of mine are encouraging me to publish. I own all the pictures, but how about the branded items?

    Reply
  24. Jackie Lambert

    Hi, I have written a blog which contains a couple of lines from Pink Floyd’s song ‘Welcome to the Machine’ which I quote in English and have translated into German for humerous effect. I intend to publish the blog as part of a book at a later date.

    The lines used include the title, ‘Welcome to the machine’ and three lines of the song.

    Would this be considered fair use?

    I have also written a parody of ‘Hotel California’ by the Eagles. This is the complete song but with different but similar words. I believe that parody is treated rather differently!

    I would really appreciate your take on these two questions – or whether lyrics should be left along completely!

    Reply
  25. Sharon

    Tiffany, I would keep investigating. You may need to use a permissions company to find the actual inventor/creator of this method. If you can’t , then if it were me, I would check with an intellectual property attorney before going forward.

    Reply
  26. Tiffany

    Hi Sharon, I really like this article. It made Fair use easier to understand. I am currently writing an ebook on the methods I used to budget, save money and pay down debt. The budget and save portion I created. The debt repayment method I used was the avalanche method,similar to Dave Ramsey’s popular snowball effect but by high interest rates instead. In my book I mention that I used the avalanche effect and I proceed to explain how-by charts I created. But the overall method is one that was found on the internet. I can’t find an actual “creator” of this method. Is this considered public domain? Would I get in trouble for explaining what the method is even though I actually did use it?

    Thank you!

    Reply
  27. Wilson Smyth

    I am writing an armature 10 minute play to enter into a contest. The characters in the play are discussing and quoting song lyrics that they think is misogynistic. Is that infringement. Notably, the song the address has only 2 lines and they characters say them both. Thanks for your help!

    Reply
    • Sharon Goldinger

      Wilson, it’s a good question that I recommend you ask of an intellectual property attorney.

      Reply
  28. Sharon Goldinger

    David, you have a unique situation and very specific questions pertaining to your project. These are legal issues, which an intellectual property attorney can advise you on.

    Reply
  29. DAVID R MIVSHEK

    I’ve found a code structure in the English language which can reveal events people experience by decoding their last names. So if I use my decoding method (Fate Stack method), I can decode the last names of musicians in the same music band lineup during the same timeframe. The decode to Fate Stacks containing musicians last names resolves into an annotated version of lyrics to a notable song by that band every time; thereby, unveiling a stored description of the musicians’ destiny. The annotated version of the lyrics abbreviates the lyrics in a short, paraphrase like fashion. To show evidence to a reader (of a book I’d make profit on) I’d like to reprint the lyrics that match up to the Fate Stack decodes. My book will be close to 1000 pages, with multiple code methods besides Fate Stacks. Musician’s lyrics only cover about a few pages of my book, so I don’t rely on them for sales; but, instead, rely on them to educate.

    For instance, decoding the band members’ last names belonging to the group Peter, Paul & Mary resolves into a decode annotating lyrics to their song “Puff the Magic Dragon.”

    Decode: STORY A WORK. ROVES, YE TAR.
    Meaning: The tale is told via an artistic piece. The sailor travels.
    Song lyrics: “Together they” [YE] “would travel” [ROVES] “on a boat” [TAR] “with billowed sail.”

    I’d like to quote song lyrics to have discourse with evidence for my study. Some entries require me to use longer lyrical passages. I don’t see how this could harm the musical property in any way; in fact, it seems like free advertising for them.

    I have so many decodes by so many bands that there’d be no way I could write to all of these publishers and wait on their responses and then pay, especially if I don’t have to.

    Currently, as the book is written, I point readers to online sites like LyricsFreak.com, etc. and just summarize what the lyrics are about (not optimal). And how are all of these lyric sites not infringing on copyrights anyhow?

    Reply
  30. Sharon Goldinger

    Madhav, Just because a book (or any material) is free does not mean it can be copied and used anywhere else without permission. You need to contact the copyright owner and ask for written permission to use it. I would recommend contacting an intellectual property attorney first.

    Reply
    • Madhav A Deshpande

      Thank you Sharon. Will do that. Thanks again!

      Reply
  31. Madhav A Deshpande

    The National Open School aims to help students complete secondary schooling. All their books are freely downloadable PDFs on their website. I realize students need more than just books. I have created a Bloolm’s taxonomy based assessment feedback app with thousands of questions to help students. I am going to sell the app. Can I include the books in the app by prominantly crediting those to the school? These are free, downloadable and for education. And I am primarily selling the questions and assessment tool. Books are a mere necessary reference included for the convenience of the students.

    Reply
  32. Paulina M.

    Hi! My 17-year old will be publishing a “How To” book for playing an xbox game. It will be one of those “unofficial guides” – if he publishes the screen shots of the game in the book illustrating his explanations and cites all the images as taken by him while playing the game, will we run into trouble with copyright infringement for the images? He is self-publishing a paperback and digital version, with all proceeds going to a local charity so he will not be profiting from the venture at all.

    Thanks!

    Reply
  33. Laurel

    I have another interesting problem. I want to quote some lyrics from Ding Dong Merrily on High, the Christmas song. I’ve discovered it was written and published in the UK in 1924 by G Woodward, and copyright expired in the UK (life + 70) in 2004. I can find a page of the original 1924 work online.

    However, apparently in the US, things written in 1924 still have 2 years to go (until 2020) before entering the Public Domain.

    As far as I can tell, BMI own the rights to later versions of the song and various covers. I called them, and they were clueless as to whether they or someone else, or no one, owns the US copyright to the original 1924 version.

    I don’t want to pay them to use it, or a later version, if I don’t have to. So I’m not quite sure what to do here. I think I may just have to get rid of it from my ebook novel, which has worldwide distribution. But that seems a shame.

    Reply
  34. laurel remington

    Do you think that using the words ‘naughty or nice’ (as in Santa Claus is coming to town) is fair use if the sentence is, for example:

    ‘OK, now let’s find out if you’ve been naughty or nice.’

    This seems like a phrase that is used a lot in popular press, but could I use it in a published ebook in the above context.

    Reply
    • Sharon Goldinger

      Laurel, I think you should be okay as long as you don’t quote it or reference the song. Just use it as ordinary text.

      Reply
  35. Ken

    Great article. What about using multiple one to two sentence quotes from people like Bruce Lee, Steven Spielberg, and such, taken from multiple interviews, and then an author adding their own elaborations on the quotes (constituting a majority of the final text) applying those words of wisdom to a certain context (ala Bruce Lee’s “be like water” quote applied to writing a novel or screenplay)? Could multiple quotes be used in that fashion for an educational ebook on writing (for profit, yes, but educational)?

    Thanks!

    Reply
    • Sharon Goldinger

      Ken, I think you might be okay if you cite every quote. Since I’m not a lawyer (and don’t play one on TV), if it were my project, I would send a sample of what you want to do to a intellectual property attorney and get his blessing.

      Reply
  36. Robert Shipley

    I am having a book published soon and I have lyrics (a few sentences) from the Spin Doctors song, “two prince’s” basically solidifying my point that it’s not about money but love.
    Would this be under fair use?

    Reply
      • Robert Shipley

        Thank you! I was wondering it it’s ok to use dialog from movies too?

        Reply
        • Sharon Goldinger

          Robert, if you don’t use too much (maybe 4-5 words?) and provide a complete citation for the movie, you may be okay.

          Reply
  37. Lisa Rose

    I would like to create a website where song lyrics of (mainly Disney) songs will be discussed (how well are they lyrics chosen, how well do they paint a picture etc.). But the part I wanna focus on is comparing, discussing, commenting on and critizising the German translation of these lyrics. I would like to, at some point have advertisement on that page and I feel like that could be the reason why I can’t argue for “fair use”?

    Reply
  38. Sharon Goldinger

    Jack, I would think that including links in your book should be fine but if it were my project, I would spend five minutes with an intellectual property attorney and confirm that.

    Reply
  39. Jack Gannon

    i am publishing a book on early American music and would like to use QR codes or links in the book to online pages with that music to exemplify the styles of the musicians. Is that allowed under fair use?

    Reply
    • Joel Friedlander

      Jack, that’s no problem because you’re not actually using the passages within your book, just linking to them.

      Reply

Trackbacks/Pingbacks

  1. Why You Must Get Permission to Use Copyrighted Photos -- and How to Do It - […] not always clear-cut, and you open yourself up to legal action by using a copyrighted photo and claiming fair…
  2. Author Tips — Permissions - Melanie Saxton Media Author Tips - […] For writers specifically, below is an excellent article on Fair Use and copyright on The Book Designer website. […]

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